As we reported back in 2017, the Department of Labor (“DOL”) had promulgated a proposed rulemaking to rescind its controversial 2016 “Persuader” Rule. Less than a year later, the Persuader Rule has been officially rescinded as of Tuesday, July 17, 2018. In a news release announcing the 
rescission, Nathan Mehrens of the Office of the Deputy Assistant Secretary stated, “By rescinding this Rule, the Department stands up for the right of Americans to ask a question of their attorney without mandated disclosure to the government.” This statement addresses one of the most significant sources of conflict over this Rule, both during and after its promulgation, and clearly identifies an important outcome of the DOL’s decision to withdraw it entirely.
Conn Maciel Carey Adds Seasoned Employment Attorney Megan Stevens Shaked to Expand its California Practice
Conn Maciel Carey is pleased to announce that Megan Stevens Shaked has joined the firm as a senior associate in its San Francisco, CA office. Ms. Shaked, an experienced employment litigator, will represent clients in a wide range of employment-related litigation, and counsel clients on a myriad of legal issues that California employers face in the workplace.
“Megan brings a depth of experience with employment litigation, counseling and training that will enhance the employment law services we provide to employers across all industries,” said Andrew J. Sommer, head of the firm’s California practice.
“Megan is a great fit for the continued growth of our California practice,” said Kara M. Maciel,” a co-founder of the firm and Chair of the firm’s national labor and employment practice. “California is a prominent base for our firm’s work, and Megan brings deep experience with the full range of employment issues that California employers face”
Ms. Shaked has successful trial experience, and brings a creative approach to resolving tricky client issues. Those qualities fit perfectly with the Conn Maciel Carey model. Ms. Shaked added that:
“I was drawn to Conn Maciel Carey by its highly-respected nationwide practice and broad-based experience in employment litigation, counseling and workplace safety. Leveraging my litigation experience, I am looking forward to working with its attorneys to provide quality legal service to the firm’s clients. I am excited to join such a successful, dynamic group of attorneys.”
With New General Counsel, NLRB Will No Longer “Robb” Employers from Implementing Sensible Work Rules
By: Mark M. Trapp
On December 14, 2017, two days before the term of then-NLRB Chairman Philip A. Miscimarra expired, the existing Republican majority-Board issued its decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017). As readers of this blog learned not long after, the Boeing case illustrated “the profound difference in the way the Board under new General Counsel Peter B. Robb intends to evaluate employer rules and workplace policies versus the perhaps overzealous and less employer-friendly approach of the Obama-era Board.”
This statement has been borne out in Robb’s recent issuance of Memorandum GC 18-04, Guidance on Handbook Rules Post-Boeing. As Robb notes in the new memorandum, Continue reading
Novel Legislation: Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018
With the rise of the #MeToo movement, there have been a number of responses from both employers and state legislatures to address workplace harassment. As discussed during the EEOC Special Task Force Meeting on June 11, 2018, several state legislatures are taking proactive steps to combat workplace sexual harassment. For example, on May 15, 2018, Maryland Governor Larry Hogan signed and ratified the Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 – which passed the Maryland House (46-0) and Senate (136-1) with almost unanimous support.
The Act, which goes into effect on Continue reading
DC Voters Approve Measure Eliminating Sub-minimum Wage for Tipped Employees
Under current law, D.C. employers are able to pay their tipped workers a base (sub-minimum) wage of $3.33 per hour, so long as the workers make enough in tips to push their earnings to at least the District’s minimum wage, which is currently $12.50 per hour. If the tipped worker does not earn at least the minimum wage for all hours worked, the employer is required to make up the difference.
However, on June 19, 2018, Washington D.C. voters approved Initiative 77, a contentious ballot initiative that would change this law. Specifically, this Initiative would raise the city’s minimum wage to $15 per hour and phase out the sub-minimum wage for tipped workers; it will gradually hike the tipped minimum wage by $1.50 each year until it 
reaches $15 in 2025, and by 2026, the minimum wage will be the same for all workers. Through this Initiative, the District of Columbia would become the first major city to outlaw the practice of allowing employers to pay a lower hourly wage to workers who earn tips, although that practice is unlawful in California, Oregon, Washington, Alaska, Nevada, Montana, and Minnesota. And officials in New York and Michigan are also considering ending their tipped-wage system this year.
TROUBLE WANTED: EEOC CONTINUES EFFORTS TO ELIMINATE ILLEGAL HIRING PRACTICES
By: Aaron Gelb
Hiring practices, by their nature, have the potential to impact large groups of individuals. Employers using certain screening tools such as pre-employment tests and medical questionnaires may thus find themselves having to defend their policies and procedures in litigation brought by the US Equal Employment Opportunity Commission (“EEOC”). Last year, the EEOC announced in its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017 – 2021 that it will continue to focus on “class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities.” Since issuing the SEP, the agency has filed a number of lawsuits across the country against employers accused of creating barriers to employment for individuals with disabilities. These cases serve as important reminders that even the most well-intentioned employers should take a close look at the tools they are using to screen applicants for the various positions they are attempting to fill or run the risk of squaring off against the EEOC.
Prescription Medications
Two recently filed lawsuits highlight the perils associated with pre-employment drug testing and/or asking applicants about their prescription drug usage.
In EEOC v. M.G. Oil Co. d/b/a Happy Jack’s Casino, 4:16-cv-04131-KES (D. S.D.), the agency accused the defendant of discriminating against an applicant for a cashier position by revoking her conditional employment offer after learning she received a non-negative drug screen result. M.G. Oil promptly filed a third-party complaint seeking indemnity and contribution from TestPoint Paramedical, LLC, the company which administered the drug test. M.G. Oil accused TestPoint of failing to send the test results to a medical review officer to determine if there was a valid reason for the non-negative result. M.G. Oil’s gamble failed as the court dismissed the claims against TestPoint, leaving M.G. Oil to explain why it refused to reconsider its decision to revoke the applicant’s offer after she explained the non-negative drug test result was due to her lawful use of a prescription pain killer she took for back pain. The EEOC also accused M.G. Oil of violating the ADA by requiring all employees to report both prescription and non-prescription medications they are taking. Eventually, the Company entered a consent decree settling the lawsuit, agreeing to pay $45,000 and adopt company-wide policies to prevent future hiring issues under the ADA. The company also agreed to only require employees to report prescription and non-prescription medications that may affect their performance. Continue reading
New Wave of ADA Website Lawsuits
Recently, there have been a slew of lawsuits filed across the country alleging that owners and operators of hotels and other places of lodging are using websites that violate the Americans with Disabilities Act (“ADA”). These lawsuits are different than the wave of lawsuits and demand letters sent to so many hotels and other places of public accommodation the last few years alleging that those companies failed to make their websites accessible for users with visual, hearing and physical impairments by not adhering to the Web Content Accessibility Guidelines (WCAG). (For more information about the WCAG issue, check out our prior posts on that issue here and here.)
ADA regulations require hotels to make reasonable modifications in their policies and practices when necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Because the purpose of a hotel’s website is, in large part, to allow members of the public to review information pertaining to the goods and services available at the hotel and then reserve appropriate guest accommodations, such websites have been found to be subject to the requirements of ADA regulations. According to these regulations, a hotel must identify and describe accessible features in the facilities and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given facility or guest room meets his or her accessibility needs. Thus, rather than alleging that the website itself is inaccessible to users with disabilities, these “new” website accessibility lawsuits claim that a hotel’s website violates the ADA by failing to sufficiently identify and describe the physical “brick and mortar” accessibility features of the hotel.
