Virginia Employment Law Blog
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IMG_0939A United States District Court Judge in the District of Columbia issued a recent opinion that could radically change the discrimination protections afforded to members of the LGBT community, but perhaps not in the way that you would expect.

In a complaint filed in the federal district court in D.C., Peter TerVeer alleged that he was targeted and harassed by his supervisor, a particularly religious man, after Mr. TerVeer’s supervisor discovered he is gay.  The supervisor allegedly harassed Mr. TerVeer in numerous ways, including:

  • Engaging in “religious lectures” in virtually every work-related conversation – to the point that it became clear Mr. TerVeer sought to impose his conservative religious beliefs on Mr. TerVeer.
  • Giving Mr. TerVeer much less specific directions for assignments without clear expectations.
  • Assigning Mr. TerVeer alone to a large project beyond his level of experience that would usually require a half-dozen employees over a year to manage and ordinarily would require a New Project Memorandum.
  • Holding a meeting for over an hour whose stated purpose was to educate Mr. TerVeer on Hell, the sins of being a homosexual, that homosexuality is wrong, and that Mr. TerVeer would be going to Hell.
  • Receiving annual reviews that did not accurately reflect Mr. TerVeer’s work.
  • Putting Mr. TerVeer under a “closer watch” and telling him not to question management after Mr. TerVeer complained about how he was being treated.

Mr. TerVeer alleged, in his complaint, that his employer violated Title VII by discriminating against him based on his gender, religion, and in retaliation for reporting his concerns.  To many, this doesn’t seem to make sense. Shouldn’t Mr. TerVeer just have sued his employer for discriminating against him because he’s gay? Unfortunately, being gay or otherwise a member of the LGBT community is not a protected class under Title VII or any other federal anti-discrimination legislation currently on the books here in the United States.

Instead, Mr. TerVeer got creative.

Mr. TerVeer alleged that Defendant subject him to discriminatory working conditions because, as a gay man, Mr. TerVeer did not fit the gender norms and stereotypes held by his supervisor.  In other words, if Mr. TerVeer were a woman, it would be fine in his supervisor’s mind for him to be attracted to and have relationships with men.  Because he is a man, the supervisor allegedly targeted him with the behaviors highlighted above.  Thus, Mr. TerVeer seems to be arguing, this is a case of gender discrimination.  Other successful gender discrimination cases in the past have been based on employers telling their female employees that they aren’t being feminine enough.  Here, Mr. TerVeer is making the similar argument that by being gay, he wasn’t being masculine enough for his supervisor.

In a thirty-four page opinion, Judge Colleen Kollar-Kotelly denied Mr. TerVeer’s employer’s motion to dismissed and ruled that Peter TerVeer’s gender and religious discrimination claims did fall within Title VII.  As mentioned by, this ruling builds on a 2012 ruling from the Equal Opportunity Employment Commission (“EEOC”) that Title VII’s protections extend beyond merely biological sex and include “protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

As always, if you believe you have been discriminated against at work for any reason, please contact one of our attorneys for a free consultation.

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06d80The process of being separated from your company is often a surprising, confusing, and emotionally trying.  You walk into a routine meeting with a supervisor only to find that a Human Resources representative is also present.  Your supervisor hands over a lengthy document containing complex legalese that may not make sense, along with a packet of information about something called COBRA.  Despite loyalty and years of hard work, the company has decided to “downsize” or “go in a different direction,” and the employee is asked to review and sign the severance agreement.

The document is frequently called a severance agreement, but sometimes it’s known as a separation or termination agreement, or even the verbose “separation agreement general release and covenant not to sue.”

But what do these things actually mean?   A severance agreement is an agreement in which you settle any potential future claims you have against the company up front.  In other words, a severance agreement is like a sales contract.  You, as the employee being separated, are being offered certain things – usually money, a positive reference, and sometimes confidentiality regarding your separation.  In exchange, the the company asks you to “sell” them a series of releases from future legal action and promises about how you’re going to behave going forward.  This doesn’t necessarily mean that they believe you may have a claim against them; rather, they wish to stave off the expense of litigation of any claims you may bring while feeling singled out and possibly even discriminated against by being separated.

The releases and conditions that employers often seek fall into a few general categories.

  • Full Release or Waiver of All Claims.  These provisions are designed to release the company (and, sometimes, future versions of the companies should it be sold, members if the company is a member organization, and even “agents” of the company, which can include couriers, maintenance workers, and the guy who brings the donuts)  from future legal action you may wish to bring in the future.  This usually encompasses discrimination under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Section 1981.  Sometimes, though, these provisions can be extremely broad and can extend to future personal injury actions for injuries you incurred while at work.  For example, if your building at some point contained asbestos and you contracted mesothelioma, you may be unable to bring a suit to recover damages against the company or the building’s owners.  Thus, it is very important to very carefully read and determine exactly who you are releasing and exactly what you are releasing them from.
  • Confidentiality.  These provisions usually involve you agreeing not to use the information that you learned about the company, its products, and how it is run confidential.  They don’t want you sharing their secret business strategies, recipes, designs, and that sort of thing with their competitors when you move on to another information.  It’s also not uncommon that they ask you to keep the terms of the agreement confidential as well.  As before, make sure that you know exactly who these sections are binding.  If you’ve been told the agreement will bind your “heirs, successors and assigns,” it means the company may try to enforce the confidentiality provisions against your children in the future.  Don’t believe us?  A Florida man lost an $80,000 settlement agreement because his daughter wrote about it on Facebook.
  • Non-Disparagement.  Over the years, you’ve probably learned a thing or two about your employer’s dirty laundry.  In exchange for the monetary and other forms of compensation the company is offering you, they may ask for you to agree not to say negative things about them.  This can often be a two-way street; if they want a non-disparagement agreement from you, then you could negotiate for them not to disparage you either.
  • Non-compete and/or Non-solicitation Covenants.  Your employer could be looking for ways to limit your ability to work in a company that competes with the employer within a certain area or to solicit business from their old customer contacts.  This can be especially problematic if you work in a specialized industry and are unable or unwilling to relocate, as non-compete agreements can cover large areas.  Be sure that you know exactly what you are prohibited from doing when reviewing these documents.

One more thing worth mentioning about general releases of claims.  As the EEOC explains on its website, severance agreements cannot limit your rights to bring a charge against your employer before the EEOC or “to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA.   Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.”

Have you been presented with a severance plan and want an attorney to review it and tell you what it really says?  Would you like to have negotiations with your employer (or former employer) conducted by an attorney with experience negotiating with both large and small employers, including federal contractors?  Contact the attorneys at The Erlich Law Office today.

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Football EquipmentThis is the beginning of a series on the implications of today’s National Labor Relations Board (“NLRB”) decision that Northwestern’s football players, “are employees of the school and therefore entitled to hold an election to decide whether to unionize,” according to The Chicago Tribune.

We’re going to start by focusing on the definition of employee.

The first question is what the NLRB means by “employee.” Well, the National Labor Relations Act defines employee with a long paragraph that starts out pretty broadly with, “The term ‘employee’ shall include any employee… unless this subchapter explicitly states otherwise…”  29 U.S.C. 152(3).  The definition goes on to carve out exceptions for agricultural workers, individuals covered by the Railway Labor Act, and some other exceptions.

These exceptions do not include college athletes, as we now know.

How does this compare to the definition of “employee” in other notable employment laws?

  • The Civil Rights Act of 1964 defines “employee” as “an individual employed by an employer…” with the exception of individuals elected to public office, people on the staff of those people elected to public office, or individuals subject to the civil service laws.  42 U.S.C. 2000e(f).
  • The Fair Labor Standards Act defines “employee” as “…any individual employed by an employer” with certain exceptions.  29 U.S.C. 203(e).  Relevant to the college athlete, especially those at public schools, could be the exception relating to “any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual…”  29 U.S.C. 203(e)(C).  However, in order for an individual to not qualify as an employee under this provision, the non-employee must also be a political appointee or a member of the legislative branch.
  • The Family and Medical Leave Act looks to the Fair Labor Standards Act for its definition of “employee.”  The FMLA simply states, “The terms ‘employ’, ‘employee’, and ‘State’ have the same meanings given such terms in subsections (c), (e), and (g) of section 203 of this title.”  29 U.S.C. 2611(3).
  • The Employee Retirement Income Act of 1974 (“ERISA”) defines “employee” as “any individual employed by an employer.” 29 U.S.C. 1002(6).
  • And, most interestingly, the health care reform bill, the Patient Protection and Affordable Care Act looks to ERISA for its definition of “employee.”  So, it also defines employee as ”any individual employed by an employer.”

So, what does all this mean?  It’s too soon to tell.  But if the NLRB’s decision stands up to appeal and college athletes are considered employees under at least one federal law, it raises a lot of questions.  The definitions above are all pretty similar, but that does not necessarily mean that courts will adopt the NLRB’s reasoning and apply that reasoning to other federal statutes.

But they might.  And we’re going to talk about those possibilities in this series of posts.  Could the health insurance mandate affect college sports?  What about the minimum wage?  What would happen if college athletes could bring EEOC charges?  And what affect, if any, would that have on Title IX?

I’m not sure.  Let’s think about it together.

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StoplightHave you been treated unfairly by your employer but feel like your claim is too small for anyone to care?  Based on a recent case in Millville, New Jersey, it may be time to think again.

People are sometimes reticent to approach a lawyer even when they know they’ve been treated unfairly.  They see their claim as relatively small, especially when compared with the resources of their employer, and decide that the case isn’t worth their time or effort.  This isn’t always true, and if you think you’re being treated unfairly, then we urge you to contact one of our attorneys to set up a consultation.  Let’s look at a specific example of how a case like yours might be worth pursuing.

On November 7, 2011, a police captain ordered Patrolman Edmund Ansara to void an otherwise valid traffic ticket that he had written.  The person to whom the ticket had been written was connected to a local politician or police leadership.  Patrolman Ansara followed orders and voided the ticket.  Lieutenant Edward Zadroga refused to sign off on the void form and reported a ticket-fixing problem to the county prosecutor’s office.  After the complaint, Patrolman Ansara gave testimony to the prosecutor’s office regarding the allegedly fixed ticket.

Both Patrolman Ansara and Lieutenant Zadroga were harassed and retaliated against for their involvement in the investigation.  Other officers accused Patrolman Ansara of making up a ticket-fixing scheme, and his supervisors targeted him with inappropriate comments on a regular basis.

Patrolman Ansara was suspended from February 27, 2012 to March 17, 2013, or approximately 54 weeks.  It was projected that, had he been working during that time period, Patrolman Ansara would have accumulated $9,257.27 in overtime.  Patrolman Ansara’s disciplinary charges were later found to be unsustainable.

Patrolman Ansara and Lieutenant Zadroga filed suit against the city of Millville, alleging that they had been unfairly disciplined and harassed for their involvement in the ticket-fixing investigation.  And they did pretty well.

The Millville City Commission recently approved a settlement with Patrolman Ansara for the following:

  • the amount he was owed in lost overtime.
  • $35,000 from the City’s insurance fund.
  • $65,000 legal fees for Patrolman Ansara.

Keep in mind that, under the Fair Labor Standards Act (“FLSA”), you can take action against your employer for as many as three years of unpaid overtime  wages or minimum wages.  If your employer willfully withheld your wages, then you may be entitled to liquidated damages doubling the back wages you’re owed.  You also are be entitled to seek attorneys fees and court costs when seeking these unpaid wages if you prevail in court.

In other words, even if you think that your initial claim is not worth very much, there may well be other factors at play that could be worth pursuing.  Our attorneys have experience litigating FLSA claims and will be able to help you understand whether taking legal action is right for you.

Patrolman Ansara’s initial claim was for just over nine thousand dollars in lost overtime.  The total settlement, including legal fees, amounted to nearly $110,000, or more than ten times his initial claim.  If your employer has failed to pay you, you should contact us to discuss your situation.

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140828790KE004_President_ObPresident Obama issued an executive order last week that would expand the pool of workers eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).

You may or may not already be familiar with the overtime portions of the FLSA; in case you aren’t, we will provide you with a brief synopsis.  In short, the FLSA provides that many employers have to pay overtime to their employees who work more than 40 hours per week.  This provision is not universal, however, because the Department of Labor is given the ability to create exemptions to it.  As a friendly reminder, don’t forget that you can make overtime even if you are a salaried employee.  Although salaried employees are often exempted from overtime by the professional, executive, or administrative exemptions, there is a threshold below which salaried employees must be given overtime pay.  Prior to recent developments, the FLSA guaranteed overtime pay for salaried workers only if they made less than $455 per week or roughly $23,000 per year.

The new executive order issued last week, for which specifics have yet to be released, is estimated to increase that threshold to between $550 and $970 per week, or approximately $28,600 to $50,440 per year.  In other words, depending on the specifics of the executive order, salaried workers who make up to $970 per week may now be covered under this executive order.

According to multiple pieces in the Washington Post, this order is designed specifically to help salaried workers who are expected to work long hours without additional compensation, such as managers of fast food restaurants and convenience stores.  This expansion of the salaried overtime pool is expected to impact millions of workers, and could very well affect you.

Are you a salaried worker expected to work long hours because your boss told you that you’re exempt from overtime?  What you were told by your supervisor isn’t necessarily true.  Check out the FLSA FAQ on the Erlich Law Office site for more information about overtime and exemptions and our practice area page on wage claims.

Also, remember that you should still track your hours if you are salaried, especially if your employer is not tracking your hours.  It will help you in your attempts to be compensated for the overtime hours that you have worked if you have notes or a record of the number of uncompensated overtime hours you worked each day.  Many salaried employees don’t clock in or clock out for their shifts, so it is very easy to lose track of how many hours those employees have been at work.

Finally, even if you don’t keep detailed notes, you can still collect your unpaid overtime.  It’s harder, but we handle these sorts of cases.  Whenever you walk into work, you probably leave some sort of evidence that you just got there.  A computer timestamp.  An email.  A security card swipe.  The same thing happens when you leave.  We can probably prove your hours if necessary, but it is to your benefit to keep notes if at all possible.

Remember to reach out to us if you’d like to speak to one of our attorneys to make sure you’re being fairly compensated for your hard work.

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New and ImprovedThe Erlich Law Office is very proud to announce the launch of its fully redesigned website.  The site features detailed descriptions of our practice areas, profiles of our attorneys, and other resources, including information about our local counsel services for Virginia Federal and State Courts, a breakdown of the results we have obtained for past clients, and a newly improved and updated contact form.  The website can be found at

The Erlich Law Office is also very proud to announce the creation of our new blog, for which this will be the first entry.  We want this blog to be an accessible and informative resource for anyone who wants to be sure that they’re being treated fairly on the job.

The blog will feature updates and insights into recent developments in employment law in Virginia, Maryland, and the District of Columbia, as well as federal law.  We will provide updates containing information and reports on the proposal, discussion, debate, and passage of legislation on the federal level and on the state level in Virginia, Maryland, and the District.  Furthermore, the blog will cover judicial decisions and relevant precedent in state and applicable federal courts.  Our goal is to take developments in legislation and jurisprudence and make it easy for you to understand and apply to your own situation. If, after reading one of our blog entries, you feel like you need to speak to an attorney, please contact us.

The blog also will feature tips and FAQs to help you better understand your rights as an employee.  The way statutes and judicial opinions are written, they often require conduct to fall into certain categories or to meet certain criteria to be actionable.  If you believe you have been the target of harassment or discrimination, the people evaluating your case (including agencies like the EEOC and judges should you file suit) will be looking for certain evidence.  We want to make it easier for you to understand how your situation will look to the people who will be evaluating your case, so you can better decide whether legal action is right for you.  If you have specific questions or want to speak with one of our attorneys, please contact us.

Additionally, the blog will feature articles designed to walk you through the various processes of reporting discrimination or harassment in order to help you decide whether you’re ready to move forward.  Whether you are filing before a federal agency such at the Equal Employment Opportunity Commission or a state or local agency such as the Arlington Human Rights Commission, the processes can be convoluted, confusing, and frustrating.  We want to make your decision whether to proceed as clear as possible by helping you know what to expect when and if you start down that path.  If you have specific questions or would just like to speak to someone personally about how the process works, please contact us.

Again, welcome to the newly redesigned website and blog for The Erlich Law Office, PLLC.  We look forward to assisting you.

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The Workplace Policy Institute has a comprehensive analysis of possible legislative and regulatory changes to employment law in the coming year. While the full article is certainly worth a read, here is a short summary of some of the most important points.

  • Congress is unlikely to pass any major legislation ahead of the midterms (surprise), as laws such as the Employment Non-Discrimination Act continue to be stalled in the House. However, some small immigration reforms, such as new visa rules, could be among changes that could make it through Congress. Enhanced protection for whistleblowers may also be on the agenda.
  • Executive branch agencies will likely pursue an aggressive regulatory agenda, partly under the auspices of President Obama’s income inequality push.
    • The Department of Labor will pursue a number of goals, some of which we have covered here before, including the “persuader rule” that limits the advice exemption under the DOL’s reporting requirement, new anti-discrimination and affirmative action rules for federal contractors, new mandatory health and safety training, revising the definition of “spouse” under the FMLA to take into account U.S. v. Windsor, and non-discrimination provisions under the Affordable Care Act.
    • The NLRB will likely consider broad changes its union election rules, and will continue to aggressively examine workplace rules to determine whether the rules violate employees’ Section Seven rights
    • The EEOC will be focusing on national origin discrimination, as well as employer wellness programs (potentially at odds with the ACA), the use of credit history in hiring decisions, as well as other screening tools, and pregnancy discrimination.

Next, FMLA insights looks at the question of whether an employee’s frequent bathroom breaks can be deemed FMLA leave if they result from a kidney problem requiring the employee to drink lots of water during the workday. In the actual case, the employee was reassigned and terminated after her supervisor became upset that she was forced to take frequent trips to the bathroom. The blog wonders whether the employer could have asserted that the trips were uses of the employee’s FMLA leave, since they were medically necessary. In the actual case, a court allowed the employee’s claims of retaliation and reasonable accommodation under the ADA to go forward. Employees should always report medical conditions to their employers to protect themselves against ADA retaliation.

Finally, the NLRB recently filed a complaint against Walmart alleging that the store illegally disciplined and fired employees who participated in strikes against the company. The employees were protesting for better pay at 34 stores around the country. Walmart claims that it fired the employees for breaking attendance policies. Under federal labor law, protesting or organizing for better wages or working conditions is protected regardless of whether the employees are unionized.

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I hope everyone had a safe and happy holiday season.  Here is a short link expanding on a new Department of Labor rule that will have a significant impact on labor law in the coming year.

As we touched on in an earlier post, the Department of Labor has been considering publishing a new regulation requiring more stringent reporting by employers to the DOL, and it recently revealed that the new rule will be published in March 2014.  Traditionally, the Labor-Management Disclosure and Reporting Act has required employers and labor consultants to report to the DOL all agreements regarding activities where the employer’s goal is to convince employees “as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.”  In other words, the law requires that employers and hired labor relations consultants report agreements where the employer seeks to limit or control unionization.  This reporting requirement includes extensive financial disclosures from the employer and any consultants.

However, the Act currently includes a significant exemption where the labor consultant only gives “advice” to the employer- a term the DOL has defined as covering situations where the consultant or attorney only provides advice to the employer without any direct contact with employees.  The new rule would change the interpretation of this exemption, and would more narrowly define “advice” to require more reporting by employers and consultants.  Specifically, the new rule redefines “advice” as “an oral or written recommendation regarding a decision or course of conduct.”  It also includes a new category of “persuader activities” that an employer must report.  That category is defined as: “a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object, directly or indirectly, to persuade employees concerning their rights to organize or bargain collectively.”  Observers expect that the new category and broader definition will include such activities as preparing materials for employers regarding unionization and drafting employee handbooks that touch on union and labor law issues.  As such, activities that were previously unreported as “advice” will now have to be reported to the DOL- understandably, many companies and consulting groups are unhappy about the new, and probably expensive, requirements.  Many groups are expected to challenge the rule once it is enacted in 2014.

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On December 3, 2013, the 5th Circuit issued an important new decision finding that class action waiver provisions in mandatory arbitration agreements under the Federal Arbitration Act (“FAA”) are enforceable.  However, in the specific case at bar the court found that the agreement in question was unenforceable because it reasonably could be read to prohibit employees from filing complaints of unfair labor practices with the NLRB.

In the case, the employee and employer entered into an arbitration agreement which provided that arbitration was the exclusive forum for disputes, and that neither party could resort to filing a case in court.  The agreement also contained a class action waiver provision.  The provision provided that: “the arbitrator [would] not have the authority to consolidate the claims of other employees” and would “not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or a class of employees in one arbitration proceeding.”

After his employment ended, the employee and a class of similarly-situated employees attempted to fashion a class-wide arbitration, alleging that they had not received overtime payments due to improper classification under the FLSA.  The employer responded by noting that the arbitration agreement banned such class arbitration attempts, but acknowledged that the employer could proceed on an individual claim if he so chose.  The employee claimed the arbitration agreement violated the NLRA.  A NLRB ALJ found that the arbitration agreement could be interpreted as prohibiting employees from filing unfair labor practice charges, and the NLRB agreed, noting that the agreement illegally prohibited the employee from engaging in concerted activities.

The 5th Circuit agreed with the NLRB’s analysis that filing class actions is a protected concerted activity under the NLRA, but noted that it also had to consider the FAA.  The court stated that under the FLSA there is no substantive due process right to proceed collectively, and that the FAA’s “savings clause” was inapplicable here because the NLRB’s decision would disfavor arbitration by requiring a class component.  The court noted that the NLRB’s text and statutory history did not contain an express indication that is should override the FAA’s presumption in favor of arbitration, and that the arbitration agreement should be enforced as written.

The court’s ruling solidifies the recent trend towards including class waiver provisions in arbitration agreements.  The court also reiterated that absent specific Congressional language, an arbitration agreement must be enforced as to its terms.  The court did, however, note that agreements cannot contain language that might make an employee think filing a charge with the NLRB is prohibited- that right cannot be abrogated through an arbitration agreement.

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Published right before Thanksgiving, the 2013 fall federal agency regulatory plans help to illustrate what proposed and final rules are on the agenda for the coming months.  The regulatory plans and fall agendas highlight agency priorities and goals and give a preview of future developments in federal employment law.

At the Department of Labor, the agency in general is focused on its “Plan/Prevent/Protect” initiative, which is designed to lessen the agency’s enforcement and inspection burden by issuing rules designed to put the responsibility for ensuring workplace compliance on the employer or regulated entity (such as a union).  Among the DOL’s subsidiary agencies, OSHA is working on publishing final rules that will establish standardized procedures for filing whistleblower complaints under a number of federal statutes, as well as updating workplace infectious disease standards.  The Office of Labor Management Standards will probably publish some version of its controversial “persuader rule,” which would greatly expand the types of union-related activities that trigger employer reporting requirements.  The Office of Federal Contract Compliance programs will continue to update its revised affirmative action requirements, as we covered here earlier, and will likely provide updated sex discrimination guidelines.  Finally, the Wage and Hour Division will be updating its definition of “spouse” to conform to the Supreme Court’s decision in U.S. v. Windsor.

At the EEOC, the agency plans to issue an updated rule increasing the monetary penalty for violations of the agency’s notice posting requirements under Title VII and the ADA.  The NLRB may move forward with a rule that will significantly change pre and post-union election procedures.  An earlier version of the rule was stayed after litigation found it invalid.  Lastly, the Department of Health and Human Services is going to be publishing rules implementing the Affordable Care Act’s non-discrimination provisions, which provide protections against discrimination in health programs and by activities of covered entities.

On a similar note, the EEOC recently released a plan that illustrates how it proposes to coordinate with the Department of Justice and the Department of Labor regarding handling complaints filed under the ADA and the Rehabilitation Act.  The regulation will help to clarify how agencies with responsibility for enforcing the ADA have to refer charges and complaints.  The rule will also help to coordinate complaint procedures followed by the EEOC, the DOJ, and the DOL.  The same article also notes that the EEOC recently filed a complaint against a Michigan eyewear retailer that denied an employee the use of her service dog while at work.  Revised ADA regulations have narrowly defined what constitutes a service animal, and the EEOC is likely to aggressively enforce those requirement- even when the service animal is a miniature horse.