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The EEOC's Labor Troubles:

From the Washington Post:

The Equal Employment Opportunity Commission, responsible for ensuring that the nation's workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.

UPDATE: More from Hans Bader here.

Curt Fischer:
Link to the story.

I don't understand union or labor law at all. How is the proposed violation different from "flex-time" policies that exist at workplaces across the nation?
3.31.2009 8:32am
wolfefan (mail):
Hi Curt -

When I work overtime, I have a choice between taking it in pay or in comp time. At the EEOC, if I am reading the story correctly, there was theoretically the same choice but as a practical matter everyone was required to take comp time.

At my agency, use of comp time must be requested, just like vacation time. I can't work 4 hours OT today and take 4 hours comp time tomorrow. For me, comp time is not like flex time at all. Other workplaces may have other rules.
3.31.2009 8:44am
Curt Fischer:
So the difference stems from the fact that "comp time" or "overtime" workers are paid hourly wages, but most "flextime" workers are paid annual or monthly salaries?
3.31.2009 8:48am
Per Son:
If you are covered by the FLSA (non-profesional, but it is a very complicated matter usually since everyone gets this wrong) - you have a choice: overtime or comp time. End of story.

If you are exempt from the FLSA (the attorneys, etc) - comp time is your only choice.

If you work a flex schedule (5/4-9, 4-10, maxiflex, flexitour with credit hours) this is generally not an issue unless you are made to work more than 40 hours.

My guess is the EEOC allegedly was making lower graded employees work extra and not permitting them to choose overtime pay.
3.31.2009 9:16am
David M. Nieporent (www):
If you are covered by the FLSA (non-profesional, but it is a very complicated matter usually since everyone gets this wrong) - you have a choice: overtime or comp time. End of story.
Not quite. For non-governmental employees (obviously not relevant to the EEOC, but you seemed to be speaking more generally) who are non-exempt, they have no such choice. Lots of employers/employees get this wrong, but it's the case: for covered non-governmental employees, comp time is not allowed. If you work more than 40 hours in a week, you must be paid overtime.

(To clarify: the FLSA only concerns itself with weekly hours, not daily ones. So you can get what some call "comp time" as long as it's applied within the same week. If you work 12 hours on Monday, but make up for it by only working 4 hours on Wednesday, you're not entitled to overtime under the FLSA. But unless you're a government employee, you cannot work 12 hours this Monday and make up for it by only working 4 hours next Monday.)
3.31.2009 9:56am
wolfefan (mail):
Hi -

I'm not sure how you are using "flex-time", Curt. At my agency (I'm an hourly employee) flex-time refers to scheduling flexiblity. For instance, I can work 5 8-hour days, or 4 10-hour days, or work 7a-3p or 9a-5p, etc. For me, that's what flex time means. Comp time (for me) means taking additional time as compensation for OT instead of taking $$. That's how I was using the terms and is how they are used at my county agency.

There are clearly others here who are more knowledgable than I am about the appropriate regulations and their applications across a variety of agencies and I am happy to defer to them!
3.31.2009 10:46am
Hans Bader (mail) (www):
The EEOC has a much worse record of labor and civil-rights violations than most corporations and agencies with a similar-size workforce.

It was found guilty of systematic reverse discrimination in Jurgens v. Thomas, 29 Fair Empl. Prac. Cas. (BNA) 1561, 1982 WL 409 (N.D.Tex.1982). When he was head of the EEOC, Clarence Thomas tried but failed to curb the systematic reverse discrimination that went on in the agency.

The EEOC also has had a lot of sexual harassment lawsuits against it (and I am talking about real sexual harassment, not weak claims based on a couple of off-color jokes, the sort of trivial thing the EEOC might sue a private employer over). See Spain v. Gallegos, 26 F.3d 439 (9th Cir.1994).

The EEOC has been likened to "the fox guarding the henhouse." See John Berlau, "Discrimination at the Opportunity Commission," Insight, May 19, 1997, available at http://findarticles.com/
p/articles/mi_m1571/
is_n18_v13/ai_19403271.

The EEOC continues to discriminate against white male employees, ironically, including those white males it sends to defend affirmative action in court. See, e.g., Terry v. Gallegos, 926 F.Supp. 679 (W.D. Tenn. 1996) (agency discriminated against attorney Joseph Ray Terry, who argued that California's Prop. 209 was preempted by EEOC affirmative action regulations — an argument bought by the trial judge, but rejected by the Ninth Circuit, which upheld Prop. 209 against both statutory and constitutional challenges in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997); Prop. 209 is also known as the California Civil Rights Initiative or Article 1, Section 31 of the California constitution).
3.31.2009 11:15am
SeaDrive:

Did someone fail to invoke the Golden Rule of Government:

What we apply to others, others may not apply to us!
3.31.2009 11:34am
Michael Masinter (mail):
David M. Nieporent makes a critically important point at 9:56 a.m. for nongovernmental employers. Per 29 U.S.C. 207 (a) private employers covered by the FLSA must pay their nonexempt employees overtime for hours worked in excess of forty hours per week; an offer of compensatory time, even if accepted, does not relieve them of their obligation to pay overtime.
3.31.2009 11:49am
arthur:
Hans Bader: "continues to discriminate" would be be more plausible if you could cite an instance from fewer than 12 years ago.
3.31.2009 12:01pm
EPluribusMoney (mail):
Like most leftist rules this one is" for thee and not for me."

Did you see the proposed Congressional Equality Constitutional Amendment?


CONGRESS SHALL MAKE NO LAW that does not apply equally to Congress and its members as it does to citizens, businesses, states and municipalities.

All existing laws that exempt Congress are repealed as of one year after the date of the ratification of this amendment.


It's here:

http://galtpress.com/CEA.html
3.31.2009 12:06pm
RPT (mail):
Mr. Bader, could you get Mr. Von Spakovsky to post here as well?
3.31.2009 12:09pm
Per Son:
Umm. I was giving a rundown of the FLSA as applicable to feds - so my description is accurate.
3.31.2009 12:16pm
trad and anon (mail):
The government violating its own laws? Who could have imagined such a thing?

Also, when you quote a newspaper article, could you please provide a link?
3.31.2009 12:33pm
ShelbyC:
Pubic hair on Coke cans has to violate some labor standard too.
3.31.2009 12:39pm
SeaDrive:

Like most leftist rules this one is" for thee and not for me."


For heaven's sake, how can you blame the leftists for this one? Are you suggesting that, e.g., the blatant disregard of health/safety/environmental regulations by the Department of Defense is all due to leftists?
3.31.2009 12:59pm
Uninterested Observer (mail):
I'd also like some more recent support for the "continues to discriminate" claim, Hans. (I also enjoyed how Hans supports his position by saying that the EEOC "has been likened" to a fox guarding the henhouse when, if you follow the link, it was Hans himself who did the "likening".)
3.31.2009 1:04pm
Hans Bader:
If you follow the link, it takes you to a news story that contains fuller support for the analogy, and my background and the context of the analogy -- beyond the bare-bones argument contained above. That's why I provided the link. The story illustrates that the analogy is apt, although it is I, not the news story's author, who used those exact words. The story echoes the assessment, and the analogy would be a good summary of the article.
3.31.2009 1:20pm
Joseph Slater (mail):
The comp time rules that apply to federal employees in Title 5 are not exactly the same as the comp time rules under the FLSA.
3.31.2009 1:28pm
Allan Walstad (mail):
All animals are equal
but
some are more equal than others.
3.31.2009 1:32pm
Soronel Haetir (mail):
Hans Bader,

Nice to see how you entirely ducked the time period issue. Your argument would be far stronger if you were to cite something that wasn't more than a decade old. The more recent the better for your argument.
3.31.2009 1:49pm
David Welker (www):
I would like to see Hans Bader make his case. If there are problems at the EEOC, they should be corrected.

But, I have to agree with the other commenters who say that bring up much older cases to characterize the EEOC now is not very persuasive?

A case from 1982? That is over 26 years ago.
3.31.2009 3:00pm
Kirk:
Nice to see how you entirely ducked the time period issue. Your argument would be far stronger if you were to cite something that wasn't more than a decade old. The more recent the better for your argument.
Why should he waste a moment's time on such an attempt? Surely any claim that anything could have been better during the Bush administration than previous ones is facially preposterous.
3.31.2009 3:09pm
David Welker (www):
I should point out something else. Citing cases from 1982 actually harms your argument. Why? Because, it tends to indicate that you have some sort of anti-EEOC agenda rather than being a neutral observer. Also, it sounds desperate. Why are you stretching so much to make your argument? Are the cases that make this point so few that you desperately need to reach for this one in an attempt to characterize the present day EEOC?

Anyway, I would be perfectly happy to have Mr. Bader make his case. I am just saying that these citations to ancient history do not help make the case.
3.31.2009 3:12pm
Random3 (mail):
No data on this, but another reason the EEOC could have a higher than average history of civil rights violations is that the type of people who seek employment there are often going to be people who are very sensitive to the chapter and verse of the applicable laws and regulations. It's really not that difficult to turn something that most people would consider a minor inconvenience or insult into, well, a federal case, if you are of a mind to.
3.31.2009 3:48pm
Frater Plotter:
How is the proposed violation different from "flex-time" policies that exist at workplaces across the nation?
From the Post article, it sounds to me as if workers were required to accept comp time credits rather than overtime pay, and then pressured to not actually take the comp time. That makes a big difference.

A better comparison would be to vacation policies at some companies, where workers are discouraged (e.g. by performance review practices) from actually taking vacation time they have earned. For instance, if a worker who has earned two weeks' vacation time, and who actually takes a two-week vacation, is expected to have done the same amount of work during a quarter that someone who didn't take vacation would have done, there is pressure not to actually take vacation.

If you give people a particular benefit as part of their compensation package, but actively deter them from using it, you are shortchanging them.
3.31.2009 4:10pm
trad and anon (mail):
No data on this, but another reason the EEOC could have a higher than average history of civil rights violations is that the type of people who seek employment there are often going to be people who are very sensitive to the chapter and verse of the applicable laws and regulations. It's really not that difficult to turn something that most people would consider a minor inconvenience or insult into, well, a federal case, if you are of a mind to.
Another way of putting a different spin on basically the same point is that EEOC employees, having a better knowledge of their legal rights, are in a better position to enforce those rights when their employer violates the law.
3.31.2009 4:15pm
Bulb:

The EEOC also has had a lot of sexual harassment lawsuits against it (and I am talking about real sexual harassment, not weak claims based on a couple of off-color jokes, the sort of trivial thing the EEOC might sue a private employer over). See Spain v. Gallegos, 26 F.3d 439 (9th Cir.1994).


Hans,

Here's the sexual harassment in the Spain case:

Spain, a white female, loaned some money to her boss, a black male. This became a repeated pattern: he kept asking for more and more loans. He wanted it to be a secret, so they had to keep meeting in private so he could ask for more loans, collect the actual money, and repay her money.

All these secret meetings let to office gossip that the two were having a sexual relationship.

She asked him to quash the rumors but he didn't.

Then she sued him. "Moreover, Spain charges that she has been subject to sexual discrimination and harassment stemming from "false rumors being circulated that she was involved in an intimate relationship with defendant Nelson." Id. Spain also alleges that even though Nelson knew the rumors were false, he perpetuated them by continuing his improper loan solicitation and by not taking steps to prevent the rumors."

Pretty bad conduct by the defendants, but failing to correct coworkers gossipmongering is not exactly the best example of horribly egregious sexual harassment.
3.31.2009 4:23pm
Soronel Haetir (mail):
Random3,

The problem I see with the argument you make is that I would expect it to be even more true for the managers. Any amount of sensitivity a typical EEOC staffer might have I would expect to see reflected greatly in the management.

So I suspect tomething else is at play here.
3.31.2009 4:44pm
Michelle Dulak Thomson (mail):
I don't know, Bulb. If someone's coworkers are making disturbing (and false, not that it matters) sexual insinuations towards her in the workplace, and her (and their) supervisor does nothing to stop them despite being repeatedly asked to do so, isn't he responsible, as a matter of law?

That his own behavior was responsible for the rumors in the first place is icing on the cake; even if it weren't, he would be obliged to stop the harassment. Or so I gather from what I know of workplace harassment law — which is damn little, baically what I've read in employee handbooks supplied at the various places I've worked myself.

By the way, what else did she sue him for? I mean, I suppose something comes before "Moreover" in the quoted bit above.
3.31.2009 4:50pm
Bulb:

I don't know, Bulb. If someone's coworkers are making disturbing (and false, not that it matters) sexual insinuations towards her in the workplace, and her (and their) supervisor does nothing to stop them despite being repeatedly asked to do so, isn't he responsible, as a matter of law?


Yeah, I think so. It was bad conduct. But Hans was trying to make the point that it was ESPECIALLY BAD sexual harassment. Basically, some gossipers started a rumor that the two were having sex. When she said "hey boss, go tell them that's it's not true, I'm too embarrassed to tell them myself," he said "no, I'm also too embarrassed to make an office-wide announcement that we're not having sex." As the opinion said, his nonaction - and he DID have a duty to take action - led to a "sexually hostile" work environment, which is illegal.

From the opinion:

"The [district] court [in this case] thus held that Title VII does not require that a supervisor deny rumors that he is having an affair with a subordinate...In its ruling, the district court stated that Title VII does not require a supervisor who is the object of a rumored affair between himself and a subordinate to "embarrass himself" by denying the rumors."

"Quite clearly, she presents an atypical sexually hostile work environment claim in that the alleged wrongful conduct does not include the type of blatantly sexist behavior that is frequently the hallmark of such claims."
3.31.2009 5:12pm
GD:
Forget sexual harassment, what kind of boss is repeatedly borrowing money from employees? Just weird and going into a kickback/bribe grey area.
3.31.2009 5:22pm
zuch (mail) (www):
The Equal Employment Opportunity Commission, responsible for ensuring that the nation's workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.
So Dubya's EEOC wasn't very labour-friendly, eh? Colour me surprised. Not sure how that translates into an EPV, though, or any indictment of the concept of an EEOC (except to show that Republicans can run one of these into the ground as well as they can with FEMA).

Cheers,
3.31.2009 5:22pm
RPT (mail):
"Zuch:

So Dubya's EEOC wasn't very labour-friendly, eh? Colour me surprised."

Accord, GWB's Labor Department (courtesy of Mrs. Mitch McConnell), Chris Cox's SEC, the Civil Rights Division of the DOJ (time for Mr. Bader to appear to defend HVS), and so on. If you are hostile to the concept of competent government law enforcement, appoint those who share your hostility and do not be surprised at the results: no law and no enforcement.
3.31.2009 5:29pm
Bulb:

If someone's coworkers are making disturbing (and false, not that it matters)


I'm not sure. It may matter that the rumors were false. The remedial action that the employer must take may be different: if they are true, he might just have to tell people to stop mentioning them in the workplace. If they are false, he might have to tell people to stop mentioning the rumors AND that the rumors are not true.

Footnote in a very egregious sexual harassment case, Winsor v. Hinckley Dodge, 79 F.3d 996 (grabbing her, calling her every dirty word imaginable, etc.):

"Although there was a sexual content to the rumors of a relation between plaintiff and the sales manager, and the statements attributing her success to such a relationship, the district court's finding that the rumors and comments were gender neutral is not clearly erroneous. Based on observed behavior, there was strong evidence that plaintiff and her manager had a special relationship, and that plaintiff's success was due, in some part, to this relationship. It appears that such rumors would have occurred even if the roles were reversed and plaintiff were male. This is different from the situation in Jew v. University of Iowa, 749 F.Supp. 946, where there was no basis for the rumors other than Dr. Jew's gender, and Spain v. Gallegos, where the rumors were not true but were created and perpetuated by improper conduct by plaintiff's supervisor."
3.31.2009 5:36pm
keypusher64 (mail):
Dubya's EEOC?

The EEOC is an independent agency, not the president's fiefdom.
3.31.2009 5:57pm
one of many:
M. Bulb, the harassment alleged by Spain was considerably more hostile than one in which a few off-colour jokes are told. You seem to be arguing that all hostile environment claims are equally low on the scale of harassment. A workplace environment where "office gossip" reaches the point where the existence of it causes the people to lose promotions is a far cry from one in which a person has only to listen to the occasional off-colour joke. If you wish to criticise M. Bader for considering any hostile environment harassment claim to be serious enough to warrant action feel free to do so, but dismissing the Spain harassment as mere "office gossip" is a bit of a stretch.
3.31.2009 6:01pm
markm (mail):
In the Spain case, I rather doubt that an announcement by the boss that "I am not having sex with that woman" would have been believed.
3.31.2009 7:12pm
zuch (mail) (www):
keypusher64:
Dubya's EEOC?

The EEOC is an independent agency, not the president's fiefdom.
As Hertz would say, "not exactly":
EEOC has five commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year, staggered terms. The term of the General Counsel is four years. The President designates a Chair and a Vice Chair. The Chair is the chief executive officer of the Commission. The five-member Commission makes equal employment opportunity policy and approves most litigation. The General Counsel is responsible for conducting EEOC enforcement litigation under Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).
And then there's this.

Cheers,
3.31.2009 7:42pm
Mystery Guest:
The Spain v. Gallegos case discussed by the commenters above involved harassment that was severe (unlike a couple of off-color jokes), and in that sense supports Hans Bader's point.

But arguably the harassment in that case was not based on sex, as civil-rights laws require for liability, because the defamatory sexual rumors at issue might have been made regardless of the victim's sex.

Cases like Duncan v. Denver Dep't of Safety (10th Cir. 2005) make clear that even defamatory sexual rumours aren't actionable sexual harassment if they don't occur because of the victim's sex.

But Spain v. Gallegos was decided by the Third Circuit, which gives short shrift to the statutory "based on sex" requirement for sexual harassment claims, based on Andrews v. Philadelphia (3d Cir. 1991) and its progeny.

Ironically, Spain v. Gallegos is consistent with the EEOC's own internal sexual harassment administrative precedents, which all but ignore the statutory "based on sex" requirement of Title VII, the statute which the EEOC is supposed to follow.

In that sense, it supports Bader's point about the EEOC's hypocrisy, since the EEOC was engaging in sexual harassment that it would easily have found an employer liable for.
3.31.2009 10:10pm
RPT (mail):
MG:

Did the "EOCC" collectively do the wrongful acts, or wa it individuals? You need something more to make a case for the "EEOC's hypocrisy".
3.31.2009 11:06pm
Random3 (mail):

trad and anon wrote:

Another way of putting a different spin on basically the same point is that EEOC employees, having a better knowledge of their legal rights, are in a better position to enforce those rights when their employer violates the law.


I suppose you could say it that way. However, in the federal department that I work for, it's been my observation that the grievance-sensitive people tend to gravitate towards working in these offices. In the federal government, you can make a career out of filing EEOC complaints, whistleblowing, etc., if you really want to. In my department there are a bunch of people who don't actually accomplish any work, but do spend all day agitating about how their various civil rights are being violated. People that actually want to accomplish something related to the mission of the department usually steer well clear of these offices.
4.1.2009 8:02am
Random3 (mail):

Soronel Haetir wrote:

Random3,

The problem I see with the argument you make is that I would expect it to be even more true for the managers. Any amount of sensitivity a typical EEOC staffer might have I would expect to see reflected greatly in the management.

So I suspect tomething else is at play here


I understand your point, but I think you may not be aware of the dynamic at work between managers and rank and file employees in these situations. Rank and file employees in these government offices are unionized, in one of the main federal employee unions (National Treasury Employees Union or American Federal Government Employees). The unions tend to foster an adversarial relationship with management, including and even particularly with the management at the EEOC and civil rights offices - because the managers can never do enough, or do it quickly enough, to satisfy all of the EEOC &civil rights complaints that they are faced with. So the managers will often do what they need to do to keep their job, which means doing what their own senior management wants. Senior management wants everything to be, or at least appear to be, happy. So first-line managers that constantly agitate and bother their senior managers with civil rights complaints don't stay managers for long. In fact, those people are spotted by senior management much earlier in their careers, and usually never get to be managers in the first place (which just proves to the rank and file staff how unjust the whole system is).
4.1.2009 8:14am

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