Today's News & Commentary — September 23, 2016
On September 19, Seattle City Council passed the Secure Scheduling Ordinance, which requires major retail and restaurant establishments to provide a “livable schedule” to its employees. Workers at retail and restaurant businesses with 500 or more employees worldwide (and 40+ locations worldwide for restaurants specifically) will now have the right to two weeks’ advanced notice of their schedule, a right to request their desire shifts, a right to on-call pay, and will not be eligible for back-to-back closing and opening shifts. The ordinance covers employees who spend at least 50% of their work time physically in Seattle’s limits. The ordinance will go into effect on July 1, 2017.
The EEOC has voiced its support for the NLRB’s proposed broader test for joint-employer status in an amicus brief for Browning-Ferris Industries of California v. NLRB before the Court of Appeals for the D.C. Circuit. “The EEOC’s longstanding joint-employer test is relevant to the appropriate standard under the NLRA because Title VII is based upon the NLRA, the statutes’ definitions of ‘employer’ are virtually identical, and both Title VII and the NLRA are remedial in nature,” wrote the EEOC in its brief. The NLRB’s new proposed joint-employer test would be in sync with the EEOC’s. The “new” joint-employer standard is actually an “older” standard, one set out in NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982). The standard makes two or more employers joint employers where they are “employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”
The 11th Circuit held 3-0 in EEOC v. Catastrophe Management Solutions that banning employees from wearing their hair as dreadlocks is not racial discrimination. The EEOC alleged that the “prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” The court ultimately decided against the EEOC’s interpretation on the grounds that hairstyle was not an immutable trait. However, the opinion acknowledged that “in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of ‘race’ and encompassing cultural characteristics associated with race.”