The NFL Combine: Does the 40-Yard Dash Violate the ADA?

The 2017 NFL Draft begins on April 27, when the nation’s most promising college football players will be holding their breath, waiting for their names to be called out (or not).  Their draft status will depend on an unknowable combination of factors, including their college career, their future potential, and last but not least, their performance at the NFL Scouting Combine.  This year’s Combine was held last month, with over 300 players — the top prospects in their draft class — descending on Indianapolis to participate in the most grueling job interview they will ever face.

Whether the Combine is a reliable indicator of NFL talent is a hotly contested topic.  The event has been criticized as “overrated,” “a waste of time,” and a “ridiculous meat market.”  And if we take a close look at its process, we might also add another criticism to that list: a potential violation of federal law.  By subjecting prospects to tests that are invasive and insufficiently job-related, the NFL Combine could be running afoul of the Americans with Disabilities Act.

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Today’s News & Commentary — April 5, 2017

Title VII protects LGBT workers from discrimination, a federal appeals court ruled for the first time yesterday.  The plaintiff in the case, Kimberly Hively, alleged that she had been fired from her teaching job because she is a lesbian.  In an 8-3 decision, the full Seventh Circuit held that “discrimination on the basis of sexual orientation is a form of sex discrimination” prohibited under Title VII.  The decision — which LGBT advocates have called a “gamechanger” — makes the Seventh Circuit the highest federal court to reach this conclusion.  It comes only weeks after the Eleventh Circuit arrived at a contrary ruling, setting up a circuit split for potential Supreme Court review.  The New York Times has more.

AFL-CIO President Richard Trumka blasted Washington for losing sight of workers’ interests, in a public address on Tuesday.  Trumka criticized the Trump administration for not fulfilling its campaign-trail promises — he called for more drastic changes to NAFTA than the President’s initial plans suggest — and encouraged workers to bargain with their employers for better wages and better working conditions, “whether [they] have a union or not.”  NPR reports.

Yesterday was Equal Pay Day, as noted on the blog.  This year it fell on April 4, meaning that women had to work an extra three months to catch up with their male counterparts — only a slight improvement over last year, when Equal Pay Day was on April 12.  The Christian Science Monitor looks at the numbers, finding that far too little progress has been made on closing the gender wage gap in the last decade, and that the gap is even larger for women of color.

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Weekend News & Commentary — April 1-2, 2017

Fox News has paid out as much as $13 million to fend off sexual harassment claims against their top anchor, Bill O’Reilly.  A New York Times investigation has revealed that five women (including employees) have received payouts either from O’Reilly or the network in exchange for their promise not to pursue litigation or speak out in public.  This is the second sexual harassment scandal to hit Fox News in the last year: long-time chairman Roger Ailes resigned in July after several female employees accused him of inappropriate conduct.

President Trump’s nominee for Labor Secretary is on his way to the Senate floor.  On Thursday the Senate HELP Committee approved Alexander Acosta.  No date has been set for the confirmation vote, but the expectation is that he will be approved.  And while Acosta has been welcomed as a far more qualified candidate than Trump’s last nominee, Andrew Puzder, some remain skeptical.  The Nation warns that Acosta’s deference to the President’s labor policies — such as the rollback of overtime rules and the elimination of OSHA training grants — makes him “more dangerous” than he might appear.

Does the United States need a wall?  Not according to the numbers, The New Yorker argues.  A recent paper from researchers at UC San Diego reveals that the pace of undocumented immigration into the United States has slowed over the past decade, meaning that the competitive pressure on low-skilled jobs and wages is easing up.  The dilemma facing the United States is not how to protect its borders, the researchers claim, but rather “how to prepare for a lower-immigration future.”

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Weekend News & Commentary — March 18-19, 2017

On the campaign trail, President Trump pledged that he would create 25 million jobs over the next decade.  Will he keep his promise?  The New York Times thinks not.  The Editorial Board takes aim at the President’s “wheezing jobs effort,” pointing to his recently released budget proposal — which would cut the Department of Labor’s budget by 21% and eliminate several important jobs programs — and his neglect of important job markets, such as the clean energy sector.

President Trump’s labor policies have also attracted the ire of unions and labor leaders.  The SEIU and Food Chain Workers Alliance have announced a general strike on May 1 (#May1Strike), coinciding with International Workers’ Day.  More than 300,000 food chain employees and 40,000 service workers are expected to turn out, The Hill reports, to protest the Trump administration and in particular its hardline stance on immigration.

Meanwhile, the administration’s immigration crackdown has worsened the farm labor shortage in California, The Los Angeles Times reports.  Although farm wages have shot up, few Americans have been willing to accept those jobs — casting doubt on President Trump’s claim that tougher borders will help American-born workers.

Disney will be paying $3.8 million in back wages to 16,339 of its “cast members” as part of a settlement with the Department of Labor.  The DOL’s investigation revealed that Disney resorts in Florida deducted a “costume” expense that caused some employees’ hourly rates to fall below the federal minimum wage.  The Christian Science Monitor has more.

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Today’s News & Commentary — March 13, 2017

The confirmation hearing for President Trump’s Labor nominee, Alexander Acosta, has been rescheduled due to scheduling conflicts.  The hearing is now set for March 22.  In the meantime, Acosta has been meeting one-on-one with senators to drum up support for his nomination.  Several Democrats have still not made up their mind on Acosta, Bloomberg BNA reports, and will continue to scrutinize his reputation.

That reputation is mixed, according to The New York Times.  Some — including immigration advocates and his colleagues at Florida International University — believe that Acosta is “a fair leader” who won’t let his conservative values affect his decisions.  But former colleagues claim that during his time at the Justice Department, Acosta sometimes acted out of political expedience, hiring candidates based on political connections instead of merit.

Can an employee be punished for refusing to participate in genetic testing?  Maybe, if a new bill — H.R. 1313, the Preserving Employee Wellness Programs Act — becomes law.  The bill, which secured House committee approval last week, would allow employers to collect genetic information on employees who participate in workplace wellness programs (read our previous coverage of corporate wellness programs here).  The Washington Post has more.

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The Right to Disconnect

In the digitally connected workplace, it’s not easy to be “off the clock.”  Email — coupled with the widespread use of smartphones — has made many employees available at a moment’s notice.  In the United States, one in three full-time workers check their work email “frequently” outside of normal working hours.  Many report checking their inbox at the dinner table, or even in the middle of the night.  The 9-to-5 job is becoming more like 24/7.

This breakdown of work/life boundaries has led to strong calls for reform.  France recently enacted a new law establishing “the right to disconnect” outside of work hours.  And some companies have already banned the use of email when workers are off-duty.  These efforts signal an important shift in attitudes toward work-life balance.  But the problem of workplace technology is more complicated than these solutions might suggest.  “Work-life balance” looks different for different individuals.  In an attempt to strengthen the boundaries between the professional and the personal, policies insisting on a “right to disconnect” could be making those boundaries too rigid for workers who seek flexibility instead.

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Weekend News & Commentary — February 18-19, 2017

After the embarrassing withdrawal of his last nominee, Andrew Puzder, President Trump’s new pick for Labor Secretary — Alexander Acosta, a “well-respected public servant” — might look like a safe choice.  As the President has pointed out, Acosta has a strong track record: he has already won Senate confirmation for three previous positions, as a senior official in the Justice Department, a federal prosecutor, and a member of the NLRB.  But this time Acosta could face obstacles.  As POLITICO notes, the new nominee has expressed a moderate position on immigration that could put him at odds with immigration hard-liners like Steve Bannon (Breitbart has already criticized Acosta for supporting amnesty for undocumented immigrants and “cheap foreign labor”).  Meanwhile, Acosta’s stance on important labor issues — such as overtime pay — remains unclear, causing concern to labor advocates.  The American Prospect has more.

On Friday, President Trump visited workers at a Boeing plant in South Carolina — only days after they voted against unionization — to reiterate his campaign-trail promises.  Trump pledged to put Americans “back to work” and raise wages (“We love our workers, and we are going to protect our workers,” he declared) but made no mention of the failed union bid, The Atlantic reports.  The President’s “loud silence” on unions is unsurprising — his relationship with organized labor has often been contentious —but union leaders can’t afford to ignore him back.  His support among union members is high, and some of his early moves — such as his rejection of the TPP trade deal and his plan to renegotiate NAFTA — have aligned him with certain unions.  Some union leaders have already reported having productive meetings with the President, and others could follow.  On the unfolding relationship between the President and organized labor, the New York Times has more.

And lastly, as concerns mount over the threat of automation to human jobs, Bill Gates has come up with a solution: tax the robots.  In an interview with Quartz, the Microsoft founder argues that governments should tax companies’ use of automated labor, raising funds to support other kinds of employment.  Meanwhile, Finland has opted for another solution.  The Finnish government is experimenting with a universal basic income, giving 2,000 individuals a guaranteed income for two years.  The Guardian has more.