DOL Appeals Overtime Rule Injunction. Now What?

by John S. Gannon

Last Thursday, the U.S. Department of Labor (DOL) filed a notice of appeal—the first step in the appeals process—challenging the decision to temporarily block the new overtime regulations.   As we reported a couple weeks ago, the overtime rules were enjoined nationwide by a Texas federal Court, meaning they did not go into effect on December 1, 2016, as previously expected.  DOL also filed a motion seeking to expedite the appeals process.  Appeals like this can take several months to pan out, or even years.  DOL is looking for resolution much sooner, perhaps as early as March or April 2017.

Many employers are wondering what to do about yet-to-be-made planned compensation changes.  Others are wondering whether already-implemented changes should be scaled back or completely reversed.   Unfortunately, there is no easy answer.  Before getting into compensation changes, it’s important to understand how the rule might play out during the appeal process.  The appeal will be heard by the Fifth Circuit Court of Appeals, which sits in a conservative/pro-business jurisdiction.  Even if the Court of Appeals agrees to an expedited schedule, the Court will not reach a decision before President-elect Trump takes office.  Earlier this year, Mr. Trump reportedly said that he would attempt to delay or exempt small businesses from the overtime regulation, but he did not say whether his administration would try to repeal the entire regulation.  After Inauguration Day, Mr. Trump could direct DOL to forego the appeal process and instead focus on crafting more employer-friendly regulations.  He could also work with Congress to enact legislation that would define exempt criteria by statute, rather than by regulation, effectively eliminating DOL’s ability to modify exempt classifications via the rulemaking process.

Assuming the appeal proceeds unhindered by the Trump Administration, reversal by the Court of Appeals could have significant ramifications for employers who have not made planned compensation changes.  If the Court of Appeals rules the lower court got it wrong, it or other courts could decide that the effective date of the rule is still December 1, 2016, meaning employers would be liable for unpaid overtime liability for employees not making $913/week as of December 1 rather than the date of the appeal court’s decision. This issue is somewhat unresolved in the federal courts, but there is clear precedent for applying the law retroactively in this scenario.

Back in January 2015, a federal court vacated wage and hour regulations implemented by DOL involving exemptions for home care workers—similar to what the Texas federal Court did with the overtime rule.  However, the Court of Appeals in that case reversed the lower court’s decisions, triggering several lawsuits attacking employer compensation practices during the months that the decision was on appeal.  Some of the courts ruled there was no wage and hour liability while the rule was “in limbo,” while other courts, including a federal court in Connecticut, ruled that overtime compensation was due to these previously exempt workers retroactive to the original implementation date of the rule.  The Connecticut decision has been appealed to the Second Circuit Court of Appeals—we will keep you apprised of any updates in that case.

That leaves employers in a precarious position.  For businesses that have already made changes in response to the overtime rules, it likely makes sense to stay the course until the overtime rule gets completely sorted out.  Employers who have not made any changes are in a more challenging spot.  To the extent possible, those employers should limit overtime opportunities for employees making less than $913/week, as well as track their working time so that an accurate assessment of overtime exposure can be made if the Court of Appeals decides the rule is lawful.

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BREAKING: Court Blocks Implementation of DOL Overtime Rule

by Kimberly A. Klimczuk and John S. Gannon

In a surprising turn of events, a Texas federal Court put a hold on the controversial Department of Labor (DOL) overtime rule that would have made over 4 million more workers eligible for overtime starting December 1, 2016.  Yesterday evening, the Court issued an Order granting a preliminary injunction that was filed by 21 states across the country along with a coalition of business groups who were challenging the rule.  The Order effectively blocks the implementation of the rule nationwide, meaning the rules will not become effective on December 1, 2016 as previously expected.  The plaintiff states and business groups presented two main arguments: 1) that the Fair Labor Standards Act (FLSA), the law that provides for a federal minimum wage and federal overtime  requirements, is unconstitutional to the extent that it interferes with states’ independence to set their own minimum wage and overtime rules; and 2) Congress never intended to set any salary threshold for the overtime exemptions, and only allowed the government to issue rules related to the job duties of exempt executive, administrative, and professional employees.  The Court rejected the first argument but agreed with the second, finding that the DOL overstepped its authority when it issued the new salary requirements.

The Court based its reasoning on the fact that the language of the FLSA states that “any employee employed in a bona fide executive, administrative, or professional capacity…as such terms are defined and delimited from time to time by regulations of the Secretary [of Labor]” shall be exempt from the FLSA’s minimum wage and overtime requirements.  When Congress grants a federal agency authority to issue regulations implementing a law, as in the case with the DOL and the FLSA, the agency may interpret or provide clarification on ambiguous language in the law, but it cannot change the meaning of unambiguous language.  When a court is asked to review an agency’s interpretation of a law, the court looks to the original language of the statute to determine if the language is ambiguous and, if so, whether the agency’s interpretation is in accordance with Congress’ original intent.  If the congressional intent is unclear, then the court will defer to the agency’s interpretation unless the agency’s interpretation is “arbitrary, capricious, or manifestly contrary to the statute.”

In this case, the court found that the language of the FLSA that exempts “any employee employed in a bona fide executive, administrative, or professional capacity” from its minimum wage and overtime provisions, without any reference to salary, expressed a clear intent by Congress to exempt employees based on the types of duties they perform and not based on any salary test.  The Court held that the DOL’s ability to “define and delimit” the terms “executive, administrative or professional capacity” gave the DOL “significant leeway to establish the types of duties that might qualify an employee for the exemption, [but] nothing in the EAP exemption indicates that Congress intended to define and delimit with respect to a minimum salary level.”

Although that reasoning seems to suggest that the DOL has no authority to set any minimum salary level, including the existing $455/week requirement, the Court made clear in a footnote that it was not making a general statement on the lawfulness of the existing salary-level test.  The court also suggested that the lower salary level test could be valid as a threshold to screen out the “obviously nonexempt employees,” making the duties test unnecessary.  By contrast, the court reasoned that the much higher salary threshold in the new rule created what was, in effect, a “salary-only” test which would lead to situations in which employees who clearly perform executive, administrative and/or professional duties would not be exempt from the statute.  This, the court said, is in direct conflict with Congress’ clear intent to exempt from the FLSA employees “any employee employed in a bona fide executive, administrative or professional capacity.”

This decision was not a final decision on the merits of plaintiffs’ arguments but was rather a decision on whether plaintiffs were likely enough to succeed on the merits to warrant a preliminary injunction delaying implementation of the rule. Although a final decision on the merits is yet to come, the court’s analysis in last night’s opinion is a strong indicator of the court’s view on the issue.   The DOL could (and likely will)  appeal the decision, as well as any final decision on the merits, but with Republicans controlling both houses in Congress and the Trump Administration taking office in January, the future of the overtime rule is certainly in doubt.  For now, if you have questions about enforcement of the rule and/or scaling back changes already in place, we suggest contacting employment counsel to discuss how this decision will impact your overtime compliance obligations.

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IRS Will Impose No Penalties on Timely Affordable Care Act Filings, Even if Incomplete or Incorrect; Extends Deadline for Employee Notices

by Wendy L. Grabel

The IRS has just announced that it will continue its past policy of imposing no penalties on Employers who make good faith, timely efforts to meet their filing requirements under the the Affordable Care Act (ACA).

Right now, Employers subject to the ACA are scrambling to complete both the complex IRS filings, and the separate information statements that must be sent to employees.

On November 18, 2016, the IRS announced measures that will greatly ease the ACA’s reporting burdens for Employers:

  • For all ACA filings that are required to be made to the IRS in 2017 (regarding the 2016 calendar year), the IRS will generally impose no penalties for incomplete or inaccurate filings, so long as a good faith effort has been made to correctly complete the filings, and provided they are timely filed.
  • This no-penalties policy continues relief granted for filings made in 2016, and extends to all IRS filings and information statements sent to individuals, required under the ACA.
  • For ACA information statements required to be sent to employees regarding the 2016 year, the deadline is automatically extended from January 31, 2017 to March 2, 2017. This extension applies to both Forms 1095-B and 1095-C, sent to employees.
  • No further extensions are available, with regard to these information statements furnished to individuals.
  • As the ACA information statements sent to employees can now be delayed, affected individuals are permitted to file their own tax returns for the 2016 tax year, before these statements are issued. In preparing their own tax returns, employees may rely on information received from their Employers, in order to confirm that they have received Employer-provided minimum essential coverage during 2016.
  • A 30-day extension is available for ACA filings made to the IRS on Forms 1094-B, 1095-B, 1094-C, and 1095-C. Submitting Form 8809 to the IRS is required to receive this 30-day extension.
  • Without the extension, the deadline for ACA filings made to the IRS is February 28, 2017 (or March 31, 2017, if filing electronically).
  • The extension Form 8809 should be filed by these 2/28/2017 or 3/31/2017 due dates. If Form 8809 is being filed to secure extensions on more than one type of filing, the IRS suggests filing multiple Forms 8809.

The IRS announcement of ACA relief, Notice 2016-70, may be found here:  https://www.irs.gov/pub/irs-drop/n-16-70.pdf

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Court Permanently Blocks Dangerous DOL “Persuader Rule”

Since our firm’s founding in 1964, we have advised employers on how to lawfully remain union-free. That has involved not only helping our clients with their individual labor relations and employment issues, but also banding together with other similar firms to advocate for employers. In line with that effort, last March, Skoler Abbott, along with several other management-side law firms across the United States that are part of the Worklaw Network, sued the Department of Labor seeking to strike down a DOL rule that would have dramatically interfered with a law firm’s ability to help employers remain union-free. The so-called “persuader rule” required employers (both union and non-union) to publicly report when they use consultants (including lawyers) for labor relations advice given for the purpose of persuading employees not to unionize. We argued that, among other things, the rule invaded our duty to protect client confidentiality and respect the longstanding doctrine of attorney-client privilege. A similar lawsuit was filed in a Texas federal court by pro-business trade associations.

Yesterday, a judge in the Texas case issued a decision permanently enjoining DOL from enforcing the rule anywhere in the country. This means the rule has been stopped dead in its tracks. Citing an earlier decision in the Texas case, the judge agreed that the “persuader rule” undermines age-old principles essential to the practice of law, including the duty of confidentiality and the attorney-client privilege. DOL could appeal the decision to the appropriate federal Court of Appeals, but with a new administration heading to Washington in January, it is likely that the Trump Administration would not fight to defend the “persuader rule” and might, in fact, seek to scrap it.

This is good news for our clients and indeed for all employers across the country who seek to remain union-free. If you have any questions about this development, please feel free to contact any of the attorneys at Skoler, Abbott & Presser, P.C.

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Massachusetts Votes to Legalize Marijuana for Recreational Use: Now What?

by Erica E. Flores

Just four years after Massachusetts voted to legalize the use of marijuana for medicinal purposes, voters in the Commonwealth have now approved Question 4, a ballot proposal to legalize and regulate marijuana for recreational use by adults age 21 and older.  With 99% of precincts reporting, the measure had earned the approval of 54 percent of Massachusetts voters.  So what happens now?  And how will state action to implement the new law impact your workplace?  Many questions remain to be answered, but here is what we know right now.

The ballot proposal calls for the creation of a three-member licensing authority to be called the Cannabis Control Commission.  That Commission will be responsible for passing the regulations that will govern the licensing of commercial marijuana establishments – including cultivators, manufacturers and retailers – as well as security and record-keeping requirements, health and safety standards, testing, packaging, labeling and advertising, inspections and related matters.  The law presently calls for marijuana products to be subject to a 3.75% excise tax on top of the state’s 6.25% sales tax, and for the proceeds to be deposited in a Marijuana Regulation Fund to fund the Commission’s activities, with any remainder going into the state’s general fund, but the Commission will also have the authority to review the tax rate on an annual basis, and to make proposals to the legislature for increasing or decreasing that rate.  The Commission’s members are to be appointed by the state treasurer and are to be advised by a 15-member Cannabis Advisory Board, whose members are to be appointed by the governor.

At the local level, cities and towns will initially be required to issue up to one-fifth (20%) the number of licenses they issue to liquor stores to marijuana retailers.  So if your community makes ten liquor licenses available to local retailers, it will have to issue up to two licenses to businesses who wish to sell marijuana products.  However, communities will also have a great deal of independent authority to regulate local marijuana businesses by adopting reasonable restrictions on the time, place and manner in which they operate.  Municipalities can also impose an additional local sales tax of up to 2%, and may even hold a local vote to determine whether marijuana businesses may allow consumption of marijuana products on their premises, whether the number of local licenses should be reduced and even whether such businesses should be banned altogether within their borders.

The law is scheduled to go into effect on December 15, 2016, which means that Massachusetts residents will have the right to possess, grow and use limited amounts of marijuana for recreational purposes in just a few weeks.  The law also provides a strict timeline by which the state must take action to implement the remainder of the law.  The governor must appoint the Cannabis Advisory Board by February 1, 2017, the state treasurer must appoint the first members of the Commission by March 1, 2017, the Commission must issue initial regulations by September 15, 2017, and it must begin accepting applications for licenses by October 1, 2017.  The law contemplates the issuance of the first licenses by January 1, 2018.

But even though Question 4 was approved by the voters, the state legislature has the power to make potentially significant changes to the statute by passing legislation that would amend the new law, and lawmakers have already signaled that they may seek to make a variety of changes, including modifying the implementation timeline, raising the excise tax, and adding provisions to help prevent impaired driving and the use of marijuana by children and young adults.

Whether and how Beacon Hill will change the law remains to be seen, but whenever and however the state ends up licensing and regulating marijuana sales, the private use of marijuana by residents in their homes will become legal at the state level in just a matter of weeks.  How does this new law affect employers?  Directly, it does not.  The law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana, even for medicinal purposes and even off-duty.

That being said, employers should be aware that the use of marijuana by employees may increase after December 15, 2016, when the odds of criminal consequences will disappear at the state level.  This means that employers may see a rise in employees being under the influence of the drug at work, positive drug test results, and requests to tolerate off-site use of the drug as a reasonable accommodation for a disability.  Employers who drug test current and prospective employees for positions that are not safety-sensitive should also be aware that they run the risk of being sued for an invasion of privacy under a recent ruling by the Massachusetts Superior Court.  The decision is an outlier, is on appeal, and so far, there has been no actual finding that the drug test at issue in that case did in fact invade the employee’s privacy.  But the Court did refuse to dismiss the claim, which means that, unless the Appeals Court reverses the decision, the employee will have an opportunity to gather evidence and potentially even to present her case to a jury.  At least for now, therefore, the Massachusetts privacy statute may provide employees who fail an otherwise lawful drug test a viable path to a legal remedy.

Posted in Background Checks, Legislation | Leave a comment

How Will the Presidential Election Affect the Impending Overtime Rule?

by Timothy F. Murphy

The election of Donald J. Trump has thrown the future of the DOL’s new overtime rule into doubt.  That rule – which dramatically increases the salary threshold for employees to be exempt from overtime and provides for automatic future salary threshold increases – is slated to go into effect on December 1, 2016, six weeks before Mr. Trump assumes the presidency.

Mr. Trump made “regulatory reform” a feature of his presidential campaign. In August, Mr. Trump reportedly said that he would attempt to delay or exempt small businesses from the overtime regulation, but he did not say whether his administration would try to repeal the entire regulation. In addition, a high-ranking economic adviser to Mr. Trump predicted last month that the overtime rule would limit job growth, but he too stopped short of saying that a Trump administration would immediately overturn it.

As things stand now, it appears that the only way the overtime rule will not go into effect on December 1 is if one of the court challenges, already filed, is successful.  The possibility of that happening is difficult to reliably predict.  Moreover, any congressional action to prevent implementation of the rule while President Obama remains in office would be unlikely to withstand his veto.

That leaves three options for the incoming Trump Administration, none of which are easy. First, it could ask Congress to pass a law overturning the regulation, but this requires a filibuster-proof majority in the Senate, something Republicans will not have. Second, it could hope that judges overturn the regulation. Third, it can use the regulatory process to reverse the regulation, but this will take years and may confront obstacles along the way. Of course, the Trump Administration might be willing to compromise on a more modest increase in the salary threshold, as it had not been increased since 2004.

Despite the possibility of repeal, we suggest that employers stay the course and plan for the December 1 implementation date.  If future laws or regulations are passed modifying the new overtime rule, employers can adjust at that time.  Remember, even if Mr. Trump directs his Labor Department to overlook the rule, employers are not protected against  the ability of private plaintiffs to sue and the DOL’s ability to start enforcement before Inauguration Day.

As election pollsters just found out, predicting the future is risky business. What follows the election – and the fate of the overtime rule in particular – may prove just as hard to predict.

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Skoler Abbott Attorney to Present at Springfield Lunch ‘N Learn

Major changes to the federal overtime compensation rules are less than a month away. Next week, Skoler Abbott Attorney John Gannon will be discussing the new rules in detail during the Springfield Regional Chamber’s Lunch ‘N Learn event. Attorney Gannon will also talk about the Massachusetts pay equity law, which was amended this summer to strengthen pay equity in the Commonwealth and increase wage transparency. The event is being held on November 9, 2016, from 11:30 a.m. to 1:00 p.m. at The Colony Club, 1500 Main Street, Springfield, MA.

Among other things, Attorney Gannon will discuss:

  • The new salary thresholds for overtime exemptions
  • How companies can use bonuses, incentive payments and commissions to meet the new threshold
  • How the new automatic update to the minimal salary threshold will impact a business in the future
  • Different methods for compensating reclassified employees and tracking their time
  • Communication and training strategies for reclassified employees and their managers
  • How the new overtime rule will impact employee benefits
  • The new restrictions on pay and hiring practices required by the pay equity law
  • Changes needed to job applications, interviewing techniques and recruiting procedures
  • Pay equity protection for employers who audit pay practices

Reservations for the November 9 Lunch ‘N Learn are $25 for Springfield Regional Chamber members and $35 for general admission. Registration includes lunch and one-on-one discussions with Attorney Gannon. Reservations may be made online at springfieldregionalchamber.com.

Posted in Benefits, Legislation, Massachusetts Wage Act, Policies, Wage/Hour | Leave a comment

Unsuccessful FLSA Lawsuit May Cost Employees

by Marylou V. Fabbo

When an employee wins a lawsuit against an employer brought under the Fair Labor Standards Act (“FLSA”), an employer must pay the employee’s reasonable attorneys’ fees and costs in addition to any judgment against it.  Sometimes the attorneys’ fees and costs are more than the judgement itself.  At least one employer has convinced a court that when an employer is successful, it may be entitled to recoup its litigation costs from the defeated employee.

Seven employees filed a lawsuit in federal district court against their employer claiming that they were misclassified as exempt employees.  After the jury found in favor of the employer, the employer filed a motion seeking to collect $22,700 in costs from the employees under a federal rule (Fed. R. Civ. P 54(d)(1)) that provides that, with a few listed exceptions, costs are to be awarded to the prevailing party.  The court denied the motion on the ground that the FLSA was a remedial statute and the fact that the FLSA itself is silent as to whether a successful employer is entitled to costs.  The court, however, noted that it may have ordered the payment of costs and attorneys’ fees if the employees had filed their lawsuit in bad faith.  The employer appealed, and the court of appeals vacated the district court’s decision.  The circuit court held that although the FLSA is silent on the issue, Rule 54 independently gives courts the authority to award costs to prevailing parties unless a statue or rule prohibits doing so.  Therefore, the circuit court sent the case back to the district court to determine whether the employees should have to pay the employer’s costs.  It remains to be seen whether the district court will in fact award the employer its costs.

Although this case was decided in the 8th Circuit which doesn’t include Massachusetts, the FLSA is a federal statute that applies countrywide. Further, federal courts in Massachusetts have awarded costs to prevailing employers in discrimination and harassment lawsuits.  An employee with a questionable case may think twice before filing a lawsuit if the employee is aware that if the lawsuit is unsuccessful, the employee may be on the hook for costs, which may be significant in a class action lawsuit.  Lochridge v. Lindsey Mgt. Co., No. 14-3799 (8th Cir.  2016).

Posted in Damages, Wage/Hour | Leave a comment

OSHA’s Big Summer: Massive Penalty Increases, Anti-Retaliation Compliance, and Electronic Reporting

by John S. Gannon

Over the past few months, the U.S. Occupational Safety and Health Administration (OSHA) announced a number of regulatory changes that may have slipped under your radar.  Not surprisingly, none of the changes are favorable to employers.

Effective August 1, 2016, OSHA’s maximum fines for safety violations will go up a whopping 78 percent.  Serious violations will max out at $12,471 per violation (up from $7,000).  Willful and repeat violations will cap at $124,709 per violation (up from $70,000), and the failure to abate penalty will max out at $12,471 per day (up from $7,000).  Given the dramatic increase, employers should consider auditing workplace safety practices to evaluate OSHA citation risk.

OSHA also announced a final rule back in May 2016 that will require certain employers to electronically submit worker injury and illness data starting in 2017.  We outlined the new rule in a previous post, explaining which employers will have to submit the data by July 1 of each year.  Remember, OSHA intends to post the data on its public website, meaning the information will be available to customers, competitors and interested attorneys.

The electronic reporting rule also includes important anti-retaliation provisions that may call for changes to your workplace safety practices.  The rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which many employers already do in a company handbook.   However, the rule also states that several common practices will now be deemed retaliatory, including:

  • automatically conducting post-accident drug testing of injured employees;
  • maintaining rules or policies that discipline employees who do not immediately report workplace injuries; and
  • maintaining incentive programs that reward employees for experiencing no recordable workplace injuries or illnesses.

The anti-retaliation provisions of the final rule were originally set to take effect in August 2016, but have been delayed until November 1, 2016, so that OSHA can “conduct additional outreach and provide educational materials and guidance for employers.”  Even so, employers that engage in any of the practices listed above should consult with counsel in light of OSHA’s final rule.

John S. Gannon, Esq., attorney with Skoler, Abbott & Presser, P.C., will be discussing OSHA’s regulatory changes while walking employers through the agency’s inspection and citation process as part of an Environmental, Health & Safety Regulatory Update seminar series hosted by Tighe & Bond.   Attorney Gannon will be speaking on Tuesday, October 11, 2016, in Holyoke, MA, and Tuesday, October 25, 2016, in Middletown, CT.   There is no charge for the seminars, but pre-registration is required.  For more information, visit http://www.tighebond.com/Seminars.php or email Attorney Gannon directly.

Posted in Legislation, OSHA, Policies | Leave a comment

Are Casting Calls for Actors of Certain Races or National Origins Illegal?

by Stefanie M. Renaud

If you are anything like me, you’ve been glued to your T.V. for the past few weeks, fervently watching the explosive second season of Netflix’s original hit show Narcos.  The show features a dramatized version of Colombia’s cocaine boom, when notorious drug kingpin Pablo Escobar and the Medellin Cartel terrorized the country in a campaign to end American extradition.  Narcos is filmed in Columbia, and the dialogue is conducted primarily in Spanish with English subtitles.

As a former member of “the industry” and a current employment lawyer, the show brought up an interesting question for me: How exactly do you cast actors on a show like Narcos?  Isn’t it illegal to request only actors of “Columbian descent?”  Could you get around this by seeking “Spanish speakers only?”  But what if the part was written for someone of a particular race, national origin, or gender?  Shouldn’t the creative minds behind the show have a right to choose the actor they want to bring their character to life?

This tension arises because casting calls are poised at the intersection two of our most deeply held American beliefs; (1) that everyone should get a fair shot based on their merit, and (2) that an individual’s rights to creative expression should not be infringed.  To the first point, Title VII of the Civil Rights Act of 1964 prohibits employers from engaging in hiring practices that discriminate on the basis of race, color, national origin, and sex (amongst others), unless the protected characteristic is part of a “bona fide” occupational qualification or “BFOQ.”  To the second, the First Amendment protects artistic expression in entertainment, television, and dramatic works.

Recently, this tension came to a very public head when the Broadway blockbuster Hamilton posted a casting notice for “nonwhite” actors.  Public outrage was swift, with many accusing Hamilton of engaging in reverse racism.  Caving to public pressure, the show eventually opened the call to all actors, but Hamilton creator Lin-Manual Miranda was clear that the casting specifications were “non-negotiable” and that casting directors would only be hiring nonwhites for specific roles.  By simply moving the alleged discrimination from the public view (e.g., the casting notice) into the “private” hands of casting directors (e.g., casting specifications), Hamilton was able to avoid further scrutiny, and legal repercussions, while maintaining the exact same “discriminatory” practice that had gotten them in trouble in the first place.  And if you’re thinking that is just a matter of semantics, you’re right!  This cunning use of “verbal gymnastics” allows Hollywood casting calls to exploit “loopholes” in discrimination law created in deference to the First Amendment.

So what loopholes are casting directors using to get away with continuing to illegally discriminate in hiring?  First, some courts have held that the First Amendment’s protection of free speech justifies racial, national origin, or gender “preferences” in casting calls, because “creatives” have a right to exclude persons based on protected characteristics in conflict with their creative “vision.”  The Hamilton creator is on-board: When asked whether creative intent or non-discrimination should carry the day, Miranda stated that “authorial intent wins” every time.  And while Title VII’s BFOQ defense explicitly excludes race as an acceptable factor in hiring, casting directors may choose to hire someone because of their “appearance” and “physical characteristics” without consequence.  This is, obviously, another semantic distinction without a difference, as a person is unlikely to “appear” as another race, unless they are actually a member of that race.  Additionally, characteristics such as accent, speech pattern, dialect, or the ability to speak a foreign language are acceptable hiring criteria, even if they are closely linked with national origin and/or race.  Finally, Hollywood also receives the benefit of case law which allows employers to discriminate because of “customer preference.”  The argument goes that the white majority prefers to see white faces in movies, and thus, casting favoring whites is justified by the preference of the audience.  Because of these exceptions, which all but defeat the purpose of Title VII, casting calls are allowed to engage in behavior that, if used in any other industry, would be obviously illegal.

And, just in case you were worried, there is no indication that Narcos’ casting was based on illegal characteristics: Wagner Moura, the actor who portrays Escobar, isn’t Columbian, he’s Brazilian, and actually had to learn Spanish for the role.

Posted in Discrimination, Title VII | Leave a comment