Weekend News & Commentary — July 1-2, 2017

This week, the Department of Labor expressed its intention to change its impending overtime rule.  The Labor Department filed a response brief in a Fifth Circuit case involving a challenge to the Obama administration’s overtime rule.  The rule, which was intended to go into effect last December, increased the salary threshold under which workers would receive time-and-a-half pay for work exceeding 40 hours per week to $47,467.  A month before the rule was supposed to take effect, a federal judge in Texas issued an injunction, enjoining the rule in State of Nevada v. United States Dep’t of Labor.  The Obama administration appealed, and the Trump administration elected to continue the challenge.  However, the government’s reply brief makes it clear that the Labor Department intends to revise the pending rule.  Instead of defending the salary threshold established by the rule, the Department of Labor is asking the Fifth Circuit to affirm the Department of Labor’s authority to set threshold salaries for overtime pay, which the lower court opinion called into question.

Last week, the Second Circuit enforced a National Labor Relations Board order finding that an employee’s Facebook post was protected by the National Labor Relations Act in NLRB v. Pier Sixty, LLC.  The employee was fired after his employers discovered the post, which included profanity-laced comments about the employee’s supervisor.  The employee subsequently filed a ULP complaint with the NLRB.  An Administrative Law Judge found that the employee’s comments were protected concerted activity under Section 7 of the NLRA.  The Second Circuit concluded that although the comments were at the outer bounds of protected activity, they were nonetheless protected because they encouraged employees to vote for the union in an upcoming election.  In reaching its decision, the Court considered the fact that the post was made two days before a union election and brought up workplace concerns.  The Court also considered the fact that Pier Sixty had not fired or disciplined other employees for similar behavior in the past.  Lastly, the Court considered the method the employee used to communicate, noting that social media is a popular forum for communicating and organizing among workers.

The Second Circuit also denied a plaintiff’s request to review Christiansen v. Omnicom Group, Inc. en banc.  In Christensen, the plaintiff argued that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on circuit precedent establishing that sexual orientation-based discrimination is not sex discrimination under Title VII, a three-judge panel dismissed the plaintiff’s sexual orientation discrimination claim.  The Second Circuit’s denial does not mean it is unwilling to revisit the possibility that discrimination on the basis of sexual orientation is sex-based discrimination under Title VII.  In May, the Second Circuit granted en banc review of Zarda v. Altitude Express.  In Zarda, the plaintiff also brought suit under Title VII, alleging discrimination on the basis of sexual orientation.  The Court upheld the lower court’s finding that Title VII does not protect against sexual orientation-based discrimination.  If the Court overturns Zarda, the Second Circuit would join the Seventh Circuit in finding that discrimination based on sexual orientation violates Title VII.

On Friday, the New York Times chronicled female entrepreneurs’ experiences with sexual harassment in Silicon Valley.  More than two dozen women shared their stories about being sexually harassed by investors and venture capitalists.  Female entrepreneurs shared stories that ranged from being propositioned and touched without consent while seeking jobs, to sexist comments made in the course of trying to secure funding.  These stories speak to a pervasive culture of sexism that may help explain the gender imbalance in the tech industry.  As the article notes, more women have begun to speak out, which may signal the beginnings of a cultural shift within the industry.