Welcome back to another episode
of “Federal Employment Agencies Behaving Badly” and in this week’s episode, we’ll
start off with the Equal Employment Opportunity Commission (“EEOC”), the
federal agency tasked with enforcing the nation’s anti-discrimination
laws. While the EEOC does not enforce the Fair Labor
Standards Act (“FLSA”) and the laws regarding overtime pay, it is required to comply with the
FLSA as it relates to the agency’s own employees. As a reminder of this fact,
the EEOC has now agreed to pay a $1.53 Million settlement for failing to
properly pay overtime to its employees.
The case began back in 2006, and in 2009, an arbitration
ruling found the EEOC had violated the FLSA by requiring investigators,
mediators and paralegals to work during lunch hours, on weekends, or after
hours, and then forcing them to accept compensatory time instead of the
overtime pay they were entitled to for their overtime errors. EEOC employees described what they were
subjected to as “forced volunteering.” The
ruling held:
There is an
entitlement to overtime, whereas compensatory time operates as an alternative, should
the employees request it . . . Put
another way, it is incorrect to view the FLSA as providing non-exempt employees
with the option of selecting either overtime or compensatory time. The right is
to overtime; compensatory time is the option.”
The arbitration ruling seven
years ago urged the EEOC and the union representing the federal employees to
reach a settlement, however, an agreement was not reached until September 22,
2016.
Despite the settlement, the
union was critical of the EEOC’s role in the long delay toward resolving the
dispute. According to National Council
of EEOC Locals, No. 216 President Gabrielle Martin “It has been very
frustrating to employees that this case has gone on for a decade during which
employees retired or unfortunately passed away . . . It is a sad irony that the
agency charged with preventing discrimination against workers violated the
rights of its employees.”
Our next segment deals with the
National Labor Relations Board (“NLRB”), which is the federal agency charged
with enforcing U.S. labor law and investigating and remedying unfair labor practices. A federal appeals court judge has now ordered
the agency to pay a company nearly $18,000.00 in legal fees for engaging in “bad
faith litigation” and engaging in “administrative hubris”
In Heartland
Plymouth Court MI, LLC v. NLRB, a company sought legal fees after it
had successfully appealed an NLRB ruling that incorrectly found the company had
violated a collective bargaining agreement by reducing employee hours. In the opinion, Judge Janice Rogers Brown of
the United States Court of Appeals for the D.C. Circuit found that the NLRB had
taken positions unsupported by the law, which placed the employer in the
untenable position of having to incur the costs of an unjustified settlement
demand, or the legal costs of appealing the NLRB’s improper ruling:
Facts
may be stubborn things, but the Board’s longstanding “nonacquiescence” towards
the law of any circuit diverging from the Board’s preferred national labor
policy takes obduracy to a new level. As this case shows, what the Board
proffers as a sophisticated tool towards national uniformity can just as easily
be an instrument of oppression, allowing the government to tell its citizens:
“We don’t care what the law says, if you want to beat us, you will have to
fight us.” It is clear enough that the
Board’s conduct was intended to send a chilling message to Heartland, as well
as others caught in the Board’s crosshairs.
Let the word go
forth: for however much the judiciary has emboldened the administrative state, we
“say what the law is.” In other words, administrative hubris does not get
the last word under our Constitution. And citizens can count on it.
A MESSAGE TO READERS OF "THE EMPLOYEE
WITH THE DRAGON TATTOO"
A
reader of this blog recently asked if she could be included on an e-mail list
for new posts. I currently do not have an e-mail service but it seems
like an excellent idea and I will be setting it up in the very near
future. If you would like to be included, please send your name, your
company, and your e-mail to me at fijmanm@phelps.com.
Thanks!
