Source:: Survey on youth aspirations in the context of the Future of Work       

(Reuters) – Walt Disney Co said on Thursday it extended Chief Executive Bob Iger’s term by more than a year to July 2, 2019.

By Lisa Milam-Perez, J.D.

An employee asserting a Title VII retaliation claim is not required to establish but-for causation at the prima facie stage, notwithstanding the Supreme Court’s 2013 Nassar decision, the Third Circuit held. All an employee need do to make a prima facie case is proffer sufficient evidence to raise an inference that her protected conduct was the likely reason—not the but-for reason—for the adverse employment action. The appeals court sided with the Fourth Circuit on the issue, over which there is a circuit split. Applying the lower standard, it revived one of a professor’s retaliation claims against a university. The lesser burden could not save another of her reprisal claims, though (Carvalho-Grevious v. Delaware State University, March 21, 2017, Fisher, D. M.).

“A continuous flow of complaints.” The employee, an associate professor, was brought in to serve as chair of the university’s department of social work—namely, to see the department through the reaccreditation process. She struggled with this responsibility. She also had a tumultuous relationship with several of the faculty and staff in her department. Within her first three months as chair, for example, she recommended the nonrenewal of two faculty, the replacement of two administrative staff, and the discharge of a consultant. (Several of the individuals filed complaints.)

Meanwhile, as an election loomed to determine whether she would serve another term as chair, the employee’s relationship with the dean turned sour, and she requested a meeting with the provost (the dean’s superior) to lament the dean’s conduct. He was interfering with the reaccreditation and was actively soliciting junior faculty members to vote against her, she charged. In addition, he made discriminatory comments about “back biting” among black women, and she deemed him “overtly sexist.” The dean denied these allegations to the provost and, the very next day, gave her a negative performance review. In an email to the provost and the university’s general counsel, she challenged his negative evaluation as retaliatory.

Citing her previous allegations, the employee asked the provost to insulate the coming election from the dean’s influence. But she was unable to present actual evidence of his interference, so the election proceeded as planned. And, in a 5-4 vote, she was ousted from the position. She filed a grievance with the provost under the operative collective bargaining agreement, now contending that the dean had sexually harassed her and then retaliated against her after she reported his misconduct by giving her a negative performance review. The provost concluded there was no evidence the dean violated the CBA, and took no further action on her grievance.

The employee was given a one-year renewable contract, but the department’s progress toward reaccreditation was far behind schedule, and the provost requested a one-year postponement of the reaccreditation deadline, which was denied. That same day, the employee filed a formal complaint against the dean with human resources, alleging sexual harassment, race discrimination, and retaliation. When she went to discuss the complaint with HR, she was told she was being prematurely dismissed from her term as department chair, but she would be paid her salary through the end of her term at the helm. A few weeks later, she filed a complaint with the EEOC and shortly thereafter, the university replaced her renewable contract with a one-year terminal contract.

According to the employee, the provost had acknowledged that his contract recommendation was based on her EEOC charge, which prompted her to file a second charge of retaliation. The provost denied making this statement, and said his decision was based on her interpersonal conflicts at the university. The following year, he recommended not renewing her contract, citing her consistent “inability to work collegially” with colleagues, and the employee filed yet another retaliation charge based on her termination. She then filed this lawsuit, asserting Title VII retaliation claims against the university and Section 1981 claims against the dean and provost.

The standard, post-Nassar? The district court granted the defendants’ summary judgment motion, concluding she could not establish causation. Relying on the Supreme Court’s 2013 decision in University of Texas Southwestern Medical Center v. Nassar, the district court reasoned that to survive summary judgment, the employee would have to show that unlawful retaliation was the but-for cause of the adverse employment actions, but that no reasonable jury would draw this conclusion based on the facts of this case. Nor could a reasonable jury conclude that the provost’s stated nondiscriminatory reason for issuing the terminal contract was pretextual.

The question teed up on appeal: What must a plaintiff show, as part of her prima facie case of retaliation, to survive a motion for summary judgment in the wake of Nassar? It was an issue of first impression in the Third Circuit; the Sixth and Tenth Circuits impose the burden at the prima facie stage, the Fourth Circuit does not. Here, the appeals court concluded that Nassar did not alter the plaintiff’s burden at the prima facie stage; rather, “proving but-for causation as part of her ultimate burden of persuasion comes later.”

A plaintiff asserting a claim of retaliation has a higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under Title VII, the appeals court explained. As the Supreme Court reasoned, the statutory structure of Title VII suggests that Congress did not intend to extend the more lenient “motivating-factor” standard to retaliation claims; rather the “but for” causation burden applied. The Third Circuit uses a “determinative effect” or “real reason” standard which, in the appellate court’s view, is functionally the same as the High Court’s “but-for” standard. Specifically, to prove a “determinative effect,” a plaintiff must show “by a preponderance of the evidence that there is a ‘but-for’ causal connection” between the adverse employment action and retaliatory animus.

But that heightened burden does not attach at the prima facie stage, the Third Circuit concluded. After all, Nassar did not require the court to abandon the McDonnell Douglas framework in Title VII retaliation cases, it stressed. McDonnell Douglas goes to the burden of production, while Nassar addresses causation. But as the Fourth Circuit had reasoned, applying but-for standard at this stage would essentially obliterate the use of McDonnell Douglas in reprisal cases.

Lesser burden did not save claim. Still, even with a lower prima facie burden, no reasonable juror could find that the employee presented sufficient evidence from which a factfinder could infer that her protected activity was even a “likely reason” for having been prematurely removed from her position as department chair. She cited the temporal proximity between her meeting with HR and the notice of her removal. But there was nothing new to her complaint at that point; it was simply a rehashing of all of her previous complaints against the dean, of which the university was already well aware. And the appeals court has consistently held that temporal proximity is not enough anyhow. Moreover, it was undisputed that the department’s efforts toward reaccreditation had faltered under her leadership, which compelled the university to make an early transition to the newly elected department chair. Finally, even if she could establish causation, she could not cast doubt on the university’s asserted reason for its adverse decisions.

Contract revision claim revived. On the other hand, the appeals court found the district court erroneously dismissed her claim based on the provost’s altering her renewable contract to a terminable one. As to this claim, she presented sufficient evidence to raise the requisite inference of causation. Despite a “continuous flow of complaints” about her from faculty and staff, the provost still recommended a renewal contract. It was only after she began to engage in Title VII protected conduct that he changed course.

There was also the disputed allegation that the provost had said his decision had nothing to do with her professional performance, but was because she “was the cause of trouble in the department”—allegedly a direct reference to her protected activity. The district court rejected this “uncorroborated statement,” but this was in error, since such credibility determinations are inappropriate on summary judgment. Because a reasonable factfinder could infer that protected activity was the likely reason for the issuance of the revised terminal contract, and also that the stated reason for revision of her contract was pretextual, the appeals court reversed and remanded this claim.

By Marjorie Johnson, J.D.

Because performing immunization injections was an essential requirement of a needle-phobic pharmacist’s job which no reasonable accommodation would have allowed him to perform at the time he was discharged, the Second Circuit overturned a substantial jury verdict in his favor. Reversing the district court’s post-trial denial of Rite Aid’s bid to toss his wrongful discharge and retaliation claims, while affirming dismissal of his failure-to-accommodate claim, the circuit court rejected his assertion that he could have been offered desensitization therapy—employers are not obligated to offer employees medical treatment—and he failed to show that he would have even undergone such therapy had it been offered (Stevens v. Rite Aid Corp., March 21, 2017, per curiam).

Fear of needles. The long-tenured pharmacist suffered from trypanophobia, which is the fear of needles. This became a problem for him in 2011, when Rite Aid and other large pharmacy chains started requiring their pharmacists to perform in-store immunizations. That spring, Rite Aid revised its job description to require pharmacists to hold a valid immunization certificate and included a reference to immunizations in the list of “essential duties and responsibilities.”

After being notified of the new requirements, the pharmacist provided a doctor’s note stating that he was “needle phobic and cannot administer immunization by injection.” He also advised his manager that because his trypanophobia caused him to experience “lightheadedness, paleness, and a feeling that I may faint,” he would never consider becoming an immunizing pharmacist. Therefore, he requested that he be provided a reasonable accommodation under the ADA.

HR provided him with a list of questions for his doctor, which included how his needle phobia would manifest itself if he were to administer injections and whether any accommodations would enable him to do so. In response, the doctor stated that if he administered an injection he would probably faint, which would be unsafe for both him and the patient. Rite Aid decided that the ADA did not apply and advised the pharmacist that he would lose his job unless he successfully completed immunization training. When he still insisted that he could not complete the training, he was terminated.

Jury verdict. His claims proceeded to trial and the jury issued a verdict in his favor awarding him almost $500,000 in backpay, over $1.2 million in front pay, and non-pecuniary damages of $900,000 (later reduced to $125,000). In a post-trial order, however, the district court dismissed his failure-to-accommodate claim and granted a new trial unless he agreed to a remittitur (later accepted). However, the court denied Rite Aid’s motion for judgment as a matter of law on his wrongful discharge and retaliation claims.

Giving injections was essential function. Rejecting the jury verdict, the Second Circuit found that being able to give immunization injections was an essential requirement of the pharmacist’s job. Rite Aid made a business decision to start requiring pharmacists to perform immunizations in 2011 and it carried out this policy by revising its job description for pharmacists to require immunization certification and the necessary licensure. It also included immunizations in the list of “essential duties and responsibilities” for its pharmacists. The fact that it terminated another pharmacist with needle phobia who refused to undergo immunization training further demonstrated it considered administering immunizations to be an essential function of its pharmacists.

Though the pharmacist argued that Rite Aid’s revised job description did not specifically state that pharmacists were required to administer immunizations by injection, there was no evidence that immunizations were administered by alternative means. And while Rite Aid pharmacists spent relatively little time performing customer immunizations when the new policy was first put in place, there was no evidence that the policy was not fully implemented thereafter. Thus, while it was “understandable that the jury had sympathy for [the pharmacist], afflicted as he was with an unusual phobia,” the only reasonable conclusion that could be reached from the evidence was that performing immunization injections was an essential function of his job as a pharmacist.

No reasonable accommodation. There was also no reasonable accommodation that would have enabled him to administer immunization injections. Even though he argued that he could perform his other duties as a pharmacist, Rite Aid was not required to eliminate an essential job function to reasonably accommodate him. The court also rejected his assertion that Rite Aid could have offered him desensitization therapy since employers are not obligated to offer employees medical treatment as a reasonable accommodation. He also failed to show that he even would have undergone desensitization therapy had it been made available to him.

The Second Circuit also rejected his assertion that he could have been transferred to a pharmacy technician position; there was no evidence that he requested, considered, or was open to a position as a pharmacy technician. His argument that Rite Aid should have hired a nurse to give immunization injections similarly failed as Rite Aid was not required to hire or assign other employees to perform his essential immunization duties. And while he argued that he could have been transferred to a dual-pharmacist store, there was no evidence that any stores existed at the time he was terminated. Finally, because he failed to show the existence of any reasonable accommodation, he could not recover based on Rite Aid’s failure to engage in an interactive process, even if that failure occurred.

By Lisa Milam-Perez, J.D.

Former NLRB Acting General Counsel Lafe Solomon was ineligible to function in that role once he was nominated by President Obama to serve permanently, a divided U.S. Supreme Court has ruled. The Federal Vacancies Reform Act bars an individual who has been nominated to fill a Presidential appointment and Senate confirmation (a “PAS” office) vacancy from performing the duties of that position in an acting capacity, and this prohibition applied to Solomon, a career NLRB official who had been tapped by Obama to serve in an acting capacity, and then to take the job permanently, but whose nomination languished in the Senate. Rejecting the NLRB’s contention that FVRA’s prohibition does not extend to first assistants who are performing in an acting capacity, the majority said the decision here was a straightforward one, based simply on the plain text of the statute, so it paid no heed to the interpretive canon. Justice Sotomayor dissented, joined by Justice Ginsburg; Justice Thomas filed a concurring opinion (NLRB v. Southwest General, Inc. dba Southwest Ambulance, March 21, 2017, Roberts, J., C.J.).

Advice and consent. The Federal Vacancies Reform Act is the latest iteration by which Congress has authorized the President to appoint “PAS” officials to serve in an acting capacity, without Senate approval, to fill temporary vacancies within the administration. However, the FVRA prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently. Does that statutory restriction apply only to first assistants who have automatically assumed those duties, or does it also apply to PAS officers and senior employees serving as acting officers at the behest of the President? That was the pivotal question.

Roberts discussed the purpose of Article II’s “advice and consent” requirement and traced the historical roots of the President’s limited authority, as endowed by Congress, to appoint officers to fill vacancies without such approval, taking us finally to the 1998 enactment of the FVRA. Then he parses the relevant text:

The FVRA. Section 3345(a) of the FVRA permits three categories of federal government officials to serve in a vacant PAS office in an acting capacity (although Sotomayor, who reads it differently, counts four categories). Subsection (a)(1) sets forth the general principle: If a person serving in a PAS office dies, resigns, or is otherwise unable to perform his duties, the first assistant to that office can perform the functions of the position temporarily, “in an acting capacity.” Subsection (a)(2) provides that “notwithstanding paragraph (1),” the President “‘may direct a person’ who already serves in a PAS office to ‘perform the functions and duties of the vacant office temporarily in an acting capacity.’” Finally, Subsection (a)(3) states that “‘notwithstanding paragraph (1),’ the President ‘may direct’ a person to perform acting duties if the person served in a senior position in the relevant agency for at least 90 days in the 365-day period preceding the vacancy.”

But Section 3345(b) renders certain individuals ineligible for acting service. Subsection (b)(1) provides that an individual cannot serve in an acting capacity pursuant to Section 3345(a) if the President has nominated him for the vacant PAS position and, “during the 365-day period preceding the vacancy, the individual ‘did not serve in the position of first assistant’ to that office or “served in [that] position . . . for less than 90 days.” Subsection (b)(2), however, creates an exception to this prohibition, allowing that the prohibition “‘shall not apply to any person’ serving in a first assistant position that itself requires the Senate’s advice and consent.”

NLRB general counsel. By statute, the NLRB’s general counsel, appointed by the President, requires the advice and consent of the Senate. In 2010, President Obama appointed Lafe Solomon to serve temporarily as acting general counsel when the Senate-approved general counsel resigned, citing his authority under the FVRA. A senior NLRB official, Solomon at that point had served for 10 years as director of the Board’s Office of Representation Appeals. In January 2011, the President nominated Solomon to serve in the position permanently, but the Senate refused to act on his nomination. Obama resubmitted Solomon’s nomination again in 2013 to no avail, and finally withdrew him from consideration and nominated a candidate more to the Senate’s liking.

Meanwhile, an NLRB law judge had ruled an ambulance company committed unfair labor practices by failing to pay bonuses to long-term employees. The NLRB agreed, and the employer filed a petition for review in the D.C. Circuit, contending that under the FVRA, Solomon was not legally acting as general counsel once he was nominated to serve permanently. As such, the underlying unfair labor practice complaint was itself invalid. The NLRB argued that FVRA subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who, like Solomon, serve under (a)(2) or (a)(3). The D.C. Circuit sided with the employer, finding that the text of subsection (b)(1) “squarely supports” the employer’s position. The Supreme Court agreed, holding that “the prohibition in subsection (b)(1) applies to anyone performing acting service under the FVRA.”

“Notwithstanding . . .” The NLRB argued that the prohibition in subsection (b)(1) expressly applied to only one of the (a) subsections, meaning that, by negative implication, it did not apply to override those who served in an acting capacity pursuant to subsections (a)(2) and (a)(3). However, the Court contemplated the “notwithstanding” clause in the subsections, and noted that it “does not naturally give rise to such an inference; it just shows which of two or more provisions prevails in the event of a conflict.” The Board’s interpretation of “notwithstanding” ran afoul of logic, the majority explained (illustrating its point with a hypothetical that references The Beatles and The Clash).

Extra-textual evidence. The NLRB sought recourse in the statutory purpose of the FVRA and its legislative history to support its position that the subsection (b)(1) restriction applies only to first assistants. But the Court held the plain language was clear, so it did not need to look past the statutory test. At any rate, the majority found the Board’s evidence unpersuasive. It reviewed the legislative wrangling leading up to passage of the FVRA and rejected the notion that in enacting the statute, the Senate had intended to give the President more flexibility, not less. That may have been true for some lawmakers; “[t]hat certain Senators made specific demands, however, does not mean that they got exactly what they wanted.”

The Board also noted that both the Office of Legal Counsel and the Government Accountability Office have construed subsection (b)(1) to apply only to first assistants—and that three Presidents have acted under this presumption, submitting the nominations of 112 individuals who were serving as acting officers under subsections (a)(2) and (a)(3), with no pushback from Congress. But the guidance documents referenced by the Board offered nothing in the way of analysis, and the “historical practice,” in the majority’s view, was “too grand a title” for the evidence cited by the Board. The 112 nominations amounted to less than two percent of the thousands of nominations considered by the Senate since the FVRA’s passage, the majority observed.

The bottom line. The FVRA prohibits any person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity, regardless of what subsection of Section 3345(a) the acting officer was appointed under. This includes the NLRB general counsel, the Court held, affirming the D.C. Circuit.

“No way to read a statute.” Dissenting, Justice Sotomayor argued that the majority gives the disputed FVRA prohibition “a broader reach than the text can bear with no support from the history of, or practice under, the FVRA.” She construed subsections (a)(2),(a)(3), and (c)(1) as authorizing the President to override subsection (a)(1)’s “default rule,” and that subsection (b)(1) only removes the President’s authorization when a first assistant performs the duties of a vacant office under subsection (a)(1). In her view, the omission of any reference to subsections (a)(2), (a)(3), and (c)(1) in subsection (b)(1) “in spite of the parallel potential for conflict with those subsections” indicates that the omission was deliberate, not merely inadvertent. Also, she argued, “[n]othing about a notwithstanding clause renders it impervious to this established rule of statutory interpretation.” In fact, the majority’s analysis would render the “notwithstanding” clause in subsection (b)(1) superfluous. “That is no way to read a statute.”

Sotomayor also urged that the post-enactment evidence undermines the majority’s holding. “[U]nder the Court’s reading of subsection (b)(1), the Executive Branch began violating the FVRA almost immediately after its enactment,” she wrote. “Congressional silence in the face of a decade-plus practice of giving subsection (b)(1) a narrow reach casts serious doubt on the broader interpretation. It indicates that Congress, like the Executive Branch, interpreted subsection (b)(1) in line with its text to reach only first assistants to the vacant office serving pursuant to subsection (a)(1).”

Appointments Clause violation? Justice Thomas wrote separately to assert his view that, regardless of the FVRA, Lafe Solomon’s temporary appointment without advice and consent of the Senate was probably barred by the Appointments Clause. Because the majority found the FVRA barred the appointment anyhow, the Court did not need to reach this “important constitutional question.” However, the dissent’s contrary interpretation compelled Thomas to raise the issue nonetheless, in a concurring opinion that delves more deeply into the general counsel’s status and role within the NLRB.

Solomon’s actions: Void? Voidable? Where does this leave the Board’s unfair labor practice charges, ALJ rulings, Board decisions, and the other fruits of Solomon’s brief tenure? In a footnote, the High Court alludes to the ramifications, noting that under FVRA Section 3348(e)(1), the NLRB general counsel is exempt from the general rule that “actions taken in violation of the FVRA are void ab initio.” However, the D.C. Circuit had rejected the Board’s plea that Solomon’s actions were not void. If the FVRA violation had occurred in the typical federal office, the appeals court would have concluded it must vacate the Board’s order, it said. But the NLRB was not the typical federal office, in light of Section 3348(e)(1). Ultimately, the appeals court assumed that Section 3348(e)(1) rendered the actions of an improperly serving acting general counsel voidable, not void. The NLRB did not seek certiorari on this issue, though, so the Court did not address it here.

“The gaping hole in today’s decision remains whether Solomon-era complaints are voidable, despite a violation of the FVRA and despite the puzzling exemption language in the FVRA,” agreed Chris Bourgeacq (The Chris Bourgeacq Law Firm), an Employment Law Daily advisory board member. “Both the D.C. Circuit and the Supreme Court’s decision have the effect of vacating the NLRB’s order as to the particular respondent employer in the Board’s underlying litigation. Those decisions at least facially suggest the necessary result of today’s decision would be to vacate the NLRB’s orders based on complaints issued during Solomon’s tenure,” Bourgeacq said. “Such a result, however, doesn’t flow from either court’s rulings.”

“The only holding we have right now on the vulnerability of Solomon-era complaints and related Board action is that they are potentially voidable, until another appellate court or the D.C. Circuit in another case decides the exemption language in section 3348 of the FVRA also means actions by the NLRB’s General Counsel in violation of the FVRA are neither void ab initio nor voidable. Also, and perhaps a significant limitation on the scope of today’s decision, the D.C. Circuit made clear its finding of an FVRA violation was not retroactive. The Supreme Court was silent on this aspect of its ruling as well.”

What are practitioners to do with cases still in the pipeline from Solomon’s tenure? “Clearly, if a complaint issued under Solomon is still pending before the Board, it would be prudent for practitioners to file an amendment or objection to the complaint, based on the FVRA violation under today’s Supreme Court decision,” Bourgeacq suggests. “Post-NLRB order objections will likely find little success if they’re asserted for the first time on appeal. Still, it might be wise to raise it in the appeal and see how the objection plays it course there, too.”

Further litigation awaits. “We may need to wait another year or two” for the answers, Bourgeacq predicts. “Who knows, by then we may even have a full quorum at the Board.”

By Lorene D. Park, J.D.

Reversing summary judgment against claims by two cable and Internet installation technicians, the Ninth Circuit held that the employer’s piece-work-based pay plan, which included a bonus designed to decrease in proportion to an increase in the number of overtime hours worked, violated the Fair Labor Standards Act’s overtime provisions. The appeals court also revived the employees’ claims under a state law requiring employers to pay all wages earned and unpaid by the end of the first business day after termination, as well as one employee’s state-law retaliation claims (Brunozzi v. Cable Communications, Inc., March 21, 2017, Dorsey, J.).

Piece-work-based pay plan. The employees in this consolidated appeal worked as technicians for Cable Communications, Inc. (CCI) installing cable television and Internet services. One worked for CCI for almost a year and other for approximately five months. CCI guaranteed that technicians would earn at least the statutory minimum wage and paid them a fixed rate for each task completed. Each employee signed a document titled “Technician Pay Rate Program,” which stated that their gross earnings were the “[t]otal amount billed to the company by the employee for Piece Rate jobs completed in the pay period plus any bonus received … .”

Calculating pay. In calculating pay, CCI started by calculating a technician’s “Piece Rate Total” for a week (total value of piece-work tasks minus adjustments for incomplete work). If the technician worked no overtime, a “Production Bonus” (1/6 of the Piece Rate Total) was added to this amount. If the technician worked over 40 hours, the formula used for calculating the bonus was more complicated, but essentially CCI reduced the bonus paid by the amount of overtime premium CCI calculated was due on a technician’s Piece Rate Total. A technician’s pay each week was his Piece Rate Total plus—to the extent they were earned—his Piece Rate OT Premium, Production Bonus, and Production Bonus OT Premium.

Lawsuits. The employees filed separate lawsuits against CCI, claiming the compensation plan violated the FLSA’s overtime provisions in Section 207 and Oregon’s statutory requirement that an employer pay all wages earned and unpaid after terminating an employee. One employee also claimed CCI violated Oregon’s laws prohibiting discrimination against a private employee who engages in whistleblowing and wage-claim discussions. The district court granted summary judgment in favor of CCI and the employees appealed.

FLSA claim. Reversing, the Ninth Circuit first discussed FLSA overtime requirements, noting that determining the regular rate of compensation is key. For employees who are paid “on a piece-rate basis, the regular hourly rate of pay is computed by adding together total earnings for the workweek from piece rates and all other sources (such as production bonuses) and any sums paid for waiting time or other hours worked (except statutory exclusions).” This sum is divided by the hours worked in the week to yield the “regular rate” for the week. A pieceworker is entitled to be paid the total weekly earnings at the regular rate for all hours worked, plus overtime at one-half the regular rate multiplied by the hours worked over 40.

Diminishing “bonus” caused miscalculation of regular rate. Comparing the requirements of the FLSA to CCI’s pay plan, the appeals court agreed with the employees that they were not paid all overtime required because the Production Bonus was designed to decrease in proportion to an increase in the number of overtime hours worked. If a CCI employee did not work overtime at all, the Production Bonus was simply 1/6 of the Piece Rate Total. Because the bonus was a portion of regular wages to be paid under the regular wage contract, it was not a true “bonus” as defined by the DOL. And having agreed that the Piece Rate Total plus 1/6 of that amount formed normal weekly income, CCI had to divide the sum of those amounts by the number of hours worked in a week to properly determine the employee’s regular hourly rate for that week.

But that is not what CCI did. Instead, it reduced the Production Bonus paid in a regular 40-hour workweek by the amount of overtime premium it calculated was due on a technician’s Piece Rate Total. Because the “bonus” was part of the normal income in a non-overtime week, diminishing it resulted in the employee being paid at a reduced hourly rate during weeks he worked overtime. That was expressly prohibited under DOL regulations. Because the diminishing “bonus” device caused a miscalculation of the regular hourly rate during weeks when overtime was worked, the pay plan violated the FLSA’s overtime provisions.

State-law wage claim. The appeals court also reversed summary judgment on the technicians’ claims under Or. Rev. Stat. §652.140(1), which requires employers to pay all wages earned and unpaid by the end of the first business day after a discharge or termination. The district court had concluded that the claims failed because the pay plan did not violate either Oregon law or the FLSA. Because the appeals court found otherwise, this conclusion could not stand.

Whistleblower claim. Under Or. Rev. Stat. §659A.199, an employer is prohibited from retaliating against an employee who “has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule[,] or regulation.” In granting summary judgment, the district court found that the employee’s complaints to supervisors were not protected activities because the term “reported” refers only to reports made to external authorities. Reversing, the appeals court examined the statutory text and legislative history, and concluded that the Oregon legislature intended the term “reported” to mean a report of information to either an external or internal authority.

Retaliation claim. Summary judgment was also reversed on the retaliation claim under Or. Rev. Stat. §652.355, which prohibits an employer from firing or otherwise discriminating against an employee who has discussed, made, or consulted an attorney about a wage claim. Here, the employee complained to supervisors that CCI failed to properly pay him overtime, and he refused to work additional hours unless paid the proper rate. The district court found that Oregon case law does not recognize complaining about inadequate wages as “a wage claim” under Section 652.355, but the appeals court did not find the cited state court cases on point. Instead, it reviewed the statutory text and context and concluded that the employee’s claim survived in part.

In the Ninth Circuit’s view, the employee’s refusal to work additional overtime unless he was paid an overtime rate for those hours was a demand for future payment and did not qualify as a “wage claim.” However, “his complaints that CCI failed to properly compensate him for overtime were at least discussions or inquiries about a demand for past-due wages, if not the actual making of such a demand.” These were “precursors” to filing a formal demand in court and thus qualified for protection under Section 652.355.

AMSTERDAM (Reuters) – Executives from U.S. paint maker PPG arrived in Amsterdam on Thursday to exert direct pressure on Akzo Nobel to enter talks after the Dutch company spurned an improved 22.7 billion euro ($24.5 billion) takeover proposal.

South African recruitment and outsourcing company Workforce Holdings (WKF: JSE) today reported revenue for the year ending 31 December 2016 of ZAR 2.52 billion (USD 201.3 million), an organic increase of 16.7% compared to ZAR 1.95 billion (USD 126.9 million) last year.

(ZAR millions)
FY 2016
FY 2015
Change
Organic Change
USD FY 2016
Revenue
2,523
1,949
29.4%
16.7%
201.3
Gross Profit
598
454
31.7%
N/A
47.7
EBITDA
137
106
29.4%
N/A
10.9

According to Workforce, its results were achieved primarily due to a strong performance in the group’s two largest operating segments – staffing and recruitment, led by the core blue collar Workforce Staffing business, and the training segment, which benefited from the acquisition of Prisma Training Solutions Proprietary Limited in October 2015 and which was included in

the results for a full twelve months for the first time during this financial year. The acquisition of the Quyn group of companies, which was effective 1 February 2016, also contributed to the group’s revenue. The company also acquired boutique recruitment firm Gcubed in May 2016.

The training, employee health management, financial services and lifestyle benefits, and process outsourcing segment also contributed to growth. The company’s revenue in its five segments are reported as follows:

(ZAR millions)
FY 2016
FY 2015
Change
USD FY 2016
Staffing and Recruitment
2,200
1,700
29.7%
175.6
Training and Consulting
88
48
83.0%
7.0
Employee Health management
39
36
8.0%
3.1
Financial and Lifestyle Products
93
69
34.1%
7.4
Process Outsourcing
141
130
9.0%
11.2

According to Workforce, it employs 1,186 people and pays 32,304 temporary contractors on a weekly basis. In August 2016, the company also announced the appointment of Philip Froom as Group CEO.

Froom commented, “Our diversification strategy is starting to bear fruit with our businesses – outside of our core staffing segment – now contributing 21% of group EBITDA. Our training segment in particular, buoyed by our acquisition of Prisma, has grown significantly and now contributes ZAR 24.3 million (USD 1.9 million) to EBITDA. This segment is poised to grow further with the recent 2017 acquisition of KBC Holdings, a training business that provides induction training and safety, health and environment training as well as contractor on-boarding and management services primarily to the mining and minerals sectors, where KBC enjoys meaningful market share and brand equity.”

“We will continue to drive growth in our training division both organically and acquisitively. The staff outsourcing division of our group is also a strategic growth area for us and, coupled with the consolidation opportunities in this industry, we will continue to pursue potential acquisitions in this regard,” says Froom.

Looking ahead the company states that “a number of initiatives and partnerships between government and business are underway to spur growth and create jobs, and government’s progress on its delayed infrastructure development plans should result in further demand for the group’s services.”

“Workforce looks forward to building on it sales momentum and growing brand, leveraging off its delivery platform to generate further organic growth and concluding accretive acquisitions, thereby adding value to its stakeholders,” the company stated.

In trading today, Workforce Holdings traded at ZAR 225 (USD 17.9), down 5.06% on the day. Based on its current share price the company has a market value of ZAR 577.6 million (46.1 million).

A new report from Bullhorn, a global provider of customer relationship management software for the staffing and recruiting industries, shows that 85% of recruitment industry professionals in Australia expect revenue growth over the course of 2017.

The report, based on a survey of 230 Australian recruiters, also shows that from the professionals that expect revenue growth, 21% are expecting revenue growth of more than 25%.

Meanwhile, 56% of respondents said that driving profitability is their top priority for the year. The second and third most widely-cited priorities were driving top-line revenue growth (38%), and managing client and candidate relationships (also 38%). Moreover, 63% of recruiters also anticipate a corresponding increase in their clients’ hiring needs.

“There’s so much proactivity in Australian recruitment, and I think it’s responsible for much of the industry’s success,” Simon Greening, APAC Regional Director at Bullhorn, said. “Companies who work in this market are determined, hardworking, and committed to sustainable growth and profitability.”

Also highlighted by the report are the many challenges Australian recruiters face. The most pressing consideration, according to 68% of those interviewed, is pricing pressure and margin compression. The second most critical challenge is a shortage of talent (66%), followed by economic uncertainty (53%) in third.

Bullhorn’s report also indicates that recruiters are taking steps to improve their relationships with clients and candidates, with levels of technology adoption continuing to grow. More than three-quarters, or 78%, of those interviewed, now use a CRM or an ATS to track candidate activity. Meanwhile, 93% also said they provide good service to clients, and 82% said the same of candidates – though many of those interviewed either do not track client and candidate satisfaction or do so inconsistently.

“Australia’s recruitment community has benefited greatly from its willingness to embrace technology and CRM”, Greening said. “The positive approach to innovation and problem solving has served it well so far, and it will serve it well in the future. There’s every reason to believe the optimism and drive of these recruiters will be rewarded in 2017 and beyond.”

According to the International Labour Organisation, an over-reliance on the use of temporary workers can lead to productivity challenges, both for individual firms and for the overall economy.

The ILO also states that while the use of temporary employment allows enterprises to adjust their workforces to changing circumstances, using temporary employment solely to reduce costs may ultimately have negative consequences for the productivity of the firm, the sector or the economy. It can lead to complacency among businesses in terms of their competitiveness, or to them undercutting the responsible employment practices of other enterprises.

“Temporary employment is of particular importance to economic sectors that are subject to seasonal fluctuations, such as agriculture, construction and transport, as well as for enterprises facing adverse macroeconomic conditions and financing constraints,” the report stated. “Some firms employ temporary workers specifically to shield their core workers from any potential downsizing that may result from demand fluctuations or adverse shocks. Small enterprises are more likely to use temporary labour as they often do not have enough employees to meet temporary adjustment needs.”

On average, 7% of enterprises in 118 developing and transition countries use temporary labour intensively, with more than half of their workforces employed on temporary contracts. Such enterprises differ from firms that make moderate use of temporary labour with respect to attributes, motivation and performance.

“Intensive users rely on temporary labour mainly to save on labour costs and to increase their flexibility. While in the short run it may indeed reduce their costs, it is also the case that intensive users are under investing in training, and thus in the development of the human capital of their employees, as well as in innovation and know-how, further decreasing their productivity,” the report said.

The report also stated that legislation governing the use of temporary contracts might have different effects depending on the type of enterprise. “Intensive users of temporary employment are unlikely to be influenced by changes to employment protection for workers with open-ended contracts. Such firms are more influenced by laws governing the use of temporary contracts, especially those authorising their unlimited use,” the report stated.