Employee Rights Briefing
March  2017
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The Institute News

Employee Rights In The News news
In The News
On February 3, President Trump signed an Executive Order to move forward with undoing the Department of Labor (DOL) fiduciary duty rule for retirement products advisors.

In his blog post, " Lipnic Outlines EEOC Priorities," David Shadovitz at HRE Online explored how the focus of the Equal Employment Opportunity Commission (EEOC) may shift under newly-appointed Acting Chair Victoria Lipnic. For an alternative viewpoint on what the change in leadership will mean for the EEOC, see Will Evans' piece, " How Trump is Transforming America's Anti-Discrimination Watchdog."

On February 15, just one day before his confirmation hearing was scheduled to take place, Andrew Puzder withdrew his nomination for Labor Secretary. In response, President Trump has nominated R. Alexander Acosta for the position. Mr. Acosta's first confirmation hearing has been scheduled for March 22.

On February 18, former Uber employee Susan Fowler made headlines when she published " Reflecting On One Very, Very Strange Year At Uber," in which she relayed her experience with sex discrimination during her time working as an engineer for the company. Ms. Fowler's is just one of many stories of pervasive sex discrimination and sexual harassment in Silicon Valley.

On February 24, Jennifer Williams-Alvarez addressed the question, " With Trump Rolling Back Transgender Rights, What Should Employers Know?" As one attorney interviewed in the piece noted, "Everyone is in uncharted territory and choppy waters."

The Denver Post published an informative article on President Trump's pick for the U.S. Supreme Court on February 27, entitled " Neil Gorsuch Often Sided With Employers In Workers' Rights Cases."

On March 7, members of Congress introduced six different bills to reign in the use of forced arbitration. As part of a press conference highlighting the legislation, congressional Democrats sponsoring the bill were joined by Gretchen Carlson, the former Fox News anchor who filed a sexual harassment claim against Fox News CEO, Roger Ailes and publicly fought the company's efforts to force her into arbitration. Ever since that experience, Ms. Carlson has been a strong advocate for eliminating forced arbitration clauses, as explained in the March 8 Star Tribune piece, " Gretchen Carlson Says Ending Mandatory Arbitration 'Has Become My Mission'."

Workers' Rights By The Numbers:

The combined number of OSHA and DOL Wage and Hour Division enforcement news releases since the Trump Administration assumed power .

The number of times, out of 23 cases, that U.S. Supreme Court nominee Judge Neil Gorsuch sided with employers in ERISA cases while on the Tenth Circuit Court of Appeals.
( Associated Press )

The number of so-called "right-to-work" states in America after Missouri Governor Eric Greitens signed such a law on February 6, 2017.
The number of women included as part of an ongoing class action arbitration against Sterling Jewelers and its subsidiaries alleging pay and gender discrimination.
The number of workers who did not have access to a retirement plan in 2012.
The number of workers who do not have access to a retirement account today .
Employee Rights In The Courtscourts
In The Courts
On February 7, a federal district court in Texas denied the insurance industry's motion seeking to nullify the DOL's fiduciary duty rule that requires financial advisors to consider the best interest of their clients when making investment decisions.

On February 8, the U.S. Supreme Court decided to postpone arguments in three consolidated cases that will resolve whether forced arbitration clauses that forbid employees from bringing class, collective, or joint actions as a condition of getting or keeping a job violate the National Labor Relations Act (NLRA). Instead of being argued this April, the cases will be held over until the next Supreme Court term, which begins in October.

In Tschiggfrie Properties, Ltd., 365 NLRB No. 34 (Feb. 13, 2017), the National Labor Relations Board ruled that an employer's interview of an employee while defending against an unfair labor charge violated the NLRA.

On March 8, 2017, President Trump nominated Noel Francisco to be the next U.S. Solicitor General. Mr. Francisco has been serving as the acting solicitor general since the beginning of the Trump Administration.
The Institute News
inst12017 NELA Annual Convention Law Student Program Registration Now Open
Law students and recent law graduates are invited to join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the National Employment Lawyers Association (NELA) for " Social Justice Lawyering: From Law Student To Employee Advocate." This engaging and interactive presentation will be held at NELA's 2017 Annual Convention on Wednesday, June 21, 2017, from 5:00 --  6:15 p.m., at the San Antonio Marriott Rivercenter.

Experienced employment law practitioners will discuss how a career in plaintiff-side employment law offers a unique and meaningful way for new lawyers to use their skills to drive progressive social change. They will share how their work as advocates for employee rights intersects with and advances other social justice issues including civil rights, immigration, environmental justice, LGBT rights, and gender equality. The panelists also will address how to enter the plaintiffs' employment law field and suggest the types of skills and experience that can help prospective workers' rights advocates as they begin their legal careers.

Immediately following the program, attendees are invited to participate in the 2017 NELA Annual Convention President's Welcome Reception, from 6:30 --  8:00 p.m., where students will have the opportunity to network in a casual environment at the nation's largest gathering of plaintiffs' employment lawyers.

While there is no cost to attend, students and recent graduates are requested to register by June 15, 2017. For questions or comments, please contact Elizabeth Colman, Paul H. Tobias (PHT) Attorney Fellow, at ecolman@employeerightsadvocacy.org.

inst2The Faces Of Forced Arbitration
The Institute would like to invite you to be a part of a new project it is developing: The Faces Of Forced Arbitration. Too often, discussions of forced arbitration involve a lot of legal and technical jargon, while the human impact is lost. The Faces Of Forced Arbitration will serve as a platform for workers to tell their personal stories and share the real harm they endure when they lose their right to go to court. 

In order for this project to be successful, we need employees who have suffered under the weight of a forced arbitration clause to come forward. Please share information about this project with your networks, and encourage the people you know who have been harmed by forced arbitration to speak up. If you know of any employees who would like to participate in this groundbreaking effort, please have them contact PHT Fellow Elizabeth Colman at ecolman@employeerightsadvocacy.org.

inst3Workers Beware: Forced Arbitration Can Happen To You
The use of forced arbitration clauses in the workplace is becoming more and more pervasive. Yet, because the proceedings often are confidential, it is impossible to know how many employees are affected. To expose companies that try to shield themselves from public accountability, The Institute has recently launched its Workers Beware project, which enables employees to discover whether an employer is known to force its workers to forego their rights in exchange for a paycheck. Now workers and allies can use our new reporting tool to help expand this list by identifying companies that attempt to hide their bad behavior behind the closed doors of forced arbitration proceedings.

The Employee Rights Briefing is a monthly newsletter designed to help keep you up-to-date on breaking news and emerging trends impacting America's workers. From the growth of forced arbitration of employment disputes, to employee misclassification, to stories of wage theft and workplace discrimination, the Employee Rights Briefing will report on employment law and policy developments from the federal government to state legislatures to the courtroom and everywhere in between. Our goal is to provide you with a digestible snapshot of the events shaping employment law and policy, so that you can be kept abreast of the most important issues facing today's workers.

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