Federal News & Analysis

  • Trump rapidly filling federal courts with young, conservative judges

    When President Donald Trump took office on January 20, 2017, there were more federal court vacancies than at any time in the past three decades. As a result, President Trump and Senate Republicans have a unique opportunity to reshape the federal judiciary for years to come. Senate Majority Leader Mitch McConnell (R-Kentucky), working closely with White House Counsel Don McGahn, has made judicial confirmations his top priority and is seeking to realign the federal judiciary with young conservatives who adhere to The Federalist Society's originalist approach to interpreting the U.S. Constitution.

  • Tug-of-war between OSHA and states over e-recordkeeping rule

    A fascinating jurisdictional tug-of-war has broken out between the Occupational Safety and Health Administration (OSHA) and a few state occupational safety and health (OSH) programs over OSHA's final rule titled "Improve Tracking of Workplace Injuries and Illnesses" (aka the e-recordkeeping rule). The e-recordkeeping rule requires large employers and smaller employers in "high-hazard industries" to submit electronic injury and illness data to OSHA through a special Web portal, the Injury Tracking Application.

  • Supreme Court rules class arbitration can be barred by agreement

    The U.S. Supreme Court recently ruled that employers may insist on and enforce mandatory arbitration agreements that bar class actions by employees. That remains true even if signing such agreements is a condition of employment.

  • Federal court blocks Philadelphia's prohibition against seeking wage history

    A recent decision by U.S. District Court for the Eastern District of Pennsylvania in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia is the latest offering in the debate over using salary history to determine current wages. Philadelphia enacted an ordinance prohibiting employers from (1) inquiring about a prospective employee's wage history (the inquiry provision) and (2) relying on wage history to determine an employee's salary (the reliance provision). The Chamber of Commerce for Greater Philadelphia filed a lawsuit seeking to prevent the city from enacting both provisions based on the argument that they violate employers' First Amendment free-speech rights. On April 30, 2018, the court ruled in favor of the chamber with respect to the inquiry provision but allowed the city to move forward with implementation of the reliance provision.

  • 7th Circuit says older job applicant can sue under ADEA over rejection

    On April 26, 2018, the 7th Circuit held that the Age Discrimination in Employment Act (ADEA)—the federal antidiscrimination law covering workers who are older than 40—protects older job applicants, not just existing employees, against "disparate impact" discrimination. Disparate impact claims arise when a company has a policy, practice, or rule that appears neutral but in practice has a disproportionate adverse effect on members of a protected group, such as older workers, women, or minorities.

  • DU to pay $2.66M, increase salaries to settle equal pay lawsuit

    The University of Denver (DU) will pay $2.66 million and furnish other relief to settle a pay discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). The EEOC charged that the university violated federal law by paying a class of female full professors at Sturm College of Law lower salaries than it pays their male counterparts who perform substantially equal work under similar working conditions.

  • NLRB chair promises 'joint-employer' rulemaking

    On May 9, 2018, John Ring, chairman of the National Labor Relations Board (NLRB), announced that the NLRB would commence rulemaking to clear up the indescribably confused situation created by its "joint-employer" rule. The announcement may be intended as a declaration by Republican NLRB members to the business community that they remain dedicated to addressing the joint-employer issue despite the missteps and diversions of the past months.

  • OFCCP's Leen outlines agency's goals

    At a recent employer conference, Craig Leen, senior adviser to Ondray Harris, director of the Office of Federal Contract Compliance Programs (OFCCP), gave a rousing speech about the changes planned for the agency. He began by sharing his background and his focus on autism in his former position as city attorney for Coral Gables, Florida. He then pivoted to discuss the OFCCP's enforcement efforts and contractors' voluntary compliance as two sides of the same coin.

  • Double the trouble: When one investigation leads to another

    Unlike the 7-Eleven sting in January, which had its genesis in a previous U.S. Immigration and Customs Enforcement (ICE) investigation, an April 5, 2018 raid on a Tennessee meat-processing plant, one of the largest ICE raids since the Bush era, began with a tax evasion inquiry. A massive undercover operation by the IRS not only revealed the employer's failure to pay taxes on employees' wages (which were paid in cash) but also its practice of hiring individuals who lacked work authorization.

  • DOL potpourri: tip pooling, PAID program, overtime, and opinion letters

    Controversy continues to swirl around the U.S. Department of Labor's (DOL) tip-pooling regulation. On March 21, 2018, it was reported that DOL leadership, including Labor Secretary Alexander Acosta, had convinced Mick Mulvaney, director of the Office of Management and Budget (OMB), to override Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao's attempt to block the tip-pooling regulation and require the DOL to reinsert estimates on what tipped employees might lose in tips to their bosses under the regulation. The proposed rule would replace an Obama administration rule that prohibited tips from being shared with "back-of-the-house" employees. The new proposal would allow back-of-the-house employees (e.g., cooks and dishwashers) to share in tip pools if front-of-the-house employees (e.g., servers) are paid the full federal minimum wage of $7.25 per hour.