Mar-Jac Update: OSHA Appeals to 11th Circuit

A couple months ago we noted a recent Northern District of Georgia decision (in the case now titled United States v. Mar-Jac) that limited the Occupational Safety & Health Administration’s (OSHA) power to expand inspections under a program that affects many Southern poultry producers. Unsatisfied with the case’s outcome, OSHA has appealed Mar-Jac to the Eleventh Circuit Court of Appeals. This means the Eleventh Circuit may overturn the lower court’s finding and instead find in favor of OSHA.

There are two major issues before the court. There are others, but they are less important and, as many white-paper legal issues are, quite boring. The first major issue concerns what evidentiary standard OSHA must meet when applying for a warrant to conduct an unprogrammed inspection. In other words, when does OSHA have probable cause under the Fourth Amendment to acquire an administrative warrant to conduct an impromptu search of an employer’s facilities? According to the brief OSHA submitted to the court on March 8, OSHA is arguing that it only needs “reasonable suspicion” that an employer has violated rules prohibiting certain hazardous conditions to re-inspect the facility for violations of those rules. OSHA also believes the lower court gave it a more stringent standard than required: OSHA needs “specific evidence” of violations. However, Mar-Jac argued in its April 7 brief that these two standards are the same thing and that the real issue, as noted by the lower court, is that OSHA only had evidence of “hazards” but not “possible violations.” Mar-Jac emphasizes that these two are completely different; the Fourth Amendment requires evidence of the latter. OSHA struck back in its April 27 reply with its own version of the relationship between the terms. Whatever happens in this case, this semantic debate will likely receive a lot of attention from the court.

The second major issue, which is contained within the first, is whether entries in OSHA 300 logs are sufficient evidence of “possible violations” of OSHA standards. OSHA 300 logs are records employers keep that detail any work-related injury or illness suffered by an employee, and the time and location of said injury or illness. OSHA thinks the logs are sufficient evidence of possible violations, and fighting back hard in its reply, stated that there is other evidence, along with the 300 logs, that collectively provide sufficient probable cause. Yet Mar-Jac remains steadfast in its assertion that OSHA logs cannot be evidence of possible violations because they do not set out the exact cause or origin of the work-related injury or illness. Even if the Eleventh Circuit finds the 300 logs were not sufficient here, it may be a stretch for parties in other cases to argue that a 300 log’s description of a bodily injury or illness and the time, location, and duration of the injury or illness will never indicate a possible OSHA violation. In fact, OSHA adopted a similar line of reasoning in its reply. However, as long as Mar-Jac can successfully argue that the five hazards, or possible violations, listed in the invalidated warrant were indiscernible based on their 300 logs, Mar-Jac will likely prevail.

The Eleventh Circuit will chime in on the topic late this summer, when the parties submit to oral argument. Whatever the court’s decision, it’s sure to have a substantial impact on OSHA inspections of poultry producers’ and other Southern employers’ facilities.

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The Changing Egg Market

When an average American consumer goes to the grocery store, they might be amazed at the difference from 15 years ago. Gone are the days where a consumer had limited options in the egg aisle. Now a consumer must decide between options such as conventional, cage-free, free-range, organic, vegetarian fed, and so much more. At times the amount of options and considerations can be overwhelming for consumers. Most consumers simply want to pay as little as possible for eggs, but many consumers also want to choose the healthiest eggs for their families and to purchase eggs produced from the most humane methods available. The federal government does not provide consumers with any guidance, however some states have affected the way consumers buy eggs at the store, especially concerning cage-free and conventional eggs. For example, California and Massachusetts have passed laws that require all eggs produced and sold in their states are produced using cage-free systems or enriched colony systems.

Let’s first take a look at how eggs are produced in the United States. Over the last ten years the United States egg industry has seen a drastic change in consumer preferences and state laws. For decades, the “conventional” cage system has been considered the industry norm. Conventional houses are designed with the hens located in a wire cage. The eggs have the ability to roll onto an egg belt, where they can be collected periodically during the day. Manure is collected on a manure belt to help manage and control litter. However, some companies are starting to switch to a cage free system. A cage-free house allows the hens to freely roam around the houses and allows the hens to have access to nest boxes/areas, perches, and a floor area. This gives the birds more room to exhibit natural behaviors. A combination of these two systems can be used, which is called an enriched colony. An enriched colony system puts the hens in cages, however it also allows them additional room to stand, sit, and extend their wings. Enriched colony systems also have perches and scratch pads available, but uses manure belts to control litter and egg belts to collect eggs. A great illustration of how the conventional egg system, cage-free system, and enriched colony system are set up can be found here.

In 2010, the Coalition for Sustainable Egg Supply began a project to look at the costs and benefits for each of the three different laying hen systems. In terms of animal health and well-being, there appears to be a positive impact in regards to behavior and tibia/humerus strength with both the cage-free system and the enriched colony system. This improvement in health is a result of the hen’s ability to move freely around the house. These two systems also have significantly fewer hens located within each house than a conventional system. Although cage-free systems have numerous benefits, there are also significant costs associated with a cage-free system, such as a significant increase in cannibalism, aggression, mortality, and keel damage. Indoor air quality and PM emissions appear to be worse in cage-free systems as well. There is more worker access to the hens in cage-free systems, but worker’s particulate matter and endotoxin exposure appears to be substantially worse. Enriched colony systems are similar, but also have the benefit of better controlled ammonia emissions. Overall, the biggest complaint concerning cage-free system and enriched colony system is the increase of cost in the eggs. This is due to an increase in operating cost and total capital.

The conversion to the cage-free system and enriched colony system seems to have started in 2008 with the passage of Proposition 2 in California, when it passed with 63.5% of the votes. Proposition 2 requires all egg-laying hens “be confined only in ways that allow these animals to lie down, stand up, fully extend their limbs and turn around freely.” In 2010, Governor Arnold Schwarzenegger signed AB 1437. into law. This bill, which was implemented in 2015, “prohibit[ed] the sale of a shelled egg for human consumption if it is the product of an egg-laying hen that was confined on a farm or place that is not in compliance with those animal care standards and would make violations of these provisions a crime.” This required any eggs produced or sold in California must comply with AB 1437. In addition, the Shell Egg Safety Rule provided a stocking density for number of hens per cage, which became effective in 2015. The stocking density is provided here:

No. Of Hens 1 2 3 4 5 6 7 8 ≥9
Sq. Inch / Hen 322 205 166 146 135 127 121 117 116

There is a misconception that these laws banned hens from being in battery cages, which is far from true. As seen in the Shell Egg Safety Rule, hens can be in a cage, but California has ensured that these hens have more freedom of movement. Although many companies have converted to cage-free, this has led to some companies using an enriched colony approach to their egg-laying facilities. This still places the hens in a control environment within a cage setting, however allows them to have the 116 square inches required by the Shell Egg Safety Rule.

Naturally, these laws were not met with favorable views from the agriculture industry, states, and companies. Since 2008, there have been three lawsuits that have attacked California’s laws. The first case, Cramer v. Harris et al., was brought by California egg producers in 2012. The district court dismissed the case and the egg producers appealed to the 9th Circuit. They argued that Proposition 2 was unconstitutionally vague. The Court affirmed, finding that a “person of reasonable intelligence can determine the dimensions of an appropriate confinement that will comply with Proposition 2.” Also in 2012, the Association of California Egg Farms filed suit against California. The ACEF also argued “language of Proposition 2 is unconstitutionally vague according to California law.” The Superior Court rejected this argument, but granted leave to amend. It held that the statute’s definition of confinement in terms of animal behavior instead of square inches “does not render the statute facially ambiguous.” The ACEF never amended their complaint and the suit was dropped.

The final case filed was State of Missouri v. Harris. Six states (Missouri, Nebraska, Alabama, Kentucky, Iowa, and Oklahoma), argued that AB 1437 violated the Commerce and Supremacy Clauses of the United States Constitution. The states argued that producers in their states could either “incur massive capital improvement costs to build larger habitats for some or all of their egg-laying hens, or they can walk away from the largest egg market in the country.” The Court dismissed this case for a lack of standing, which was then appealed to the Ninth Circuit Court of Appeals. On November 17, 2016, the Court of Appeals affirmed the dismissal of the case. The Court found the states did not establish standing because there were “no specific allegations about the statewide magnitude of these difficulties or the extent to which they affect more than just an identifiable group of individual egg farmers.” The Court also concluded there was no discrimination because “California egg farmers are subject to the same rules as egg farmers from all other states, including California itself.” It is not known what the states next action will be in this matter.

After the 2015 implementation of California’s laws, 77% of Massachusetts’s citizens decided to pass a similar bill in November 2016. Question 3 prohibits a “farm owner or operator from knowingly confining . . . egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.” Question 3 further prohibits a business owner selling “whole eggs intended for human consumption . . . if the business owner or operator knows or should know that the hen . . . produced these products was confined in a manner prohibited by the proposed law.” This, like California, will prohibit the sales of eggs outside of the state that are produced in conventional cages. So far it is still too early to know what effects this law will have on the egg industry, Question 3 won’t be implemented until January 1, 2022, but will likely have additional effect on companies producing eggs outside of the state.

Despite these new laws, market changes have potentially been the biggest change to the egg industry. In the past few years, many stores and restaurants started requiring their supplier to provide cage-free eggs. Wal-Mart, the world’s largest retailer, announced in 2016 it would switch to cage-free eggs by 2025. This makes Wal-Mart join other companies like McDonald’s and Burger King, which have set a 2025 and 2017 deadline respectively. This has caused companies like Rose Acre, the second largest egg producer, to pledge “every facility it builds or refurbishes will lack cages.” Michael Foods and Cal-Maine are also is investing in cage-free systems.

No one knows what will happen over the next few years, but it does appear that the egg industry will drastically change. We could see more state laws passed, maybe a future federal standard, or more changes with consumer preference and the market. One thing is for certain though; this is not an issue that will go away any time soon.

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Starting a New Business in Arkansas

Starting a business is sort of like having a child. You’re there when it enters the world, you watch it grow through the years, and taking care of it is hard work. The first years are often difficult and may be full of sleepless nights, but the experience can be extremely rewarding. And there are more surprising similarities between the two. Sometimes children and businesses are created accidentally (it’s true ).

But of course, children are not businesses and businesses are not children (though, yes, businesses sometimes are considered legal “persons” under the law). While children are always blessings, a prospective business owner really shouldn’t create a new business without planning or consulting with specialists. Business formation requires that a prospective organizer carefully think about unique legal, economic, personal, and business considerations, such as the pros and cons of forming a business and of different types of businesses.

In this article, we will provide descriptions of the types of businesses you can form in Arkansas and a general overview of the legal considerations you should keep in mind in starting a new business in Arkansas. And though this article provides general tax considerations for each business type, we do not specialize in tax law and recommend that potential organizers direct their questions about tax matters to an accountant.

Types of Businesses

Sole Proprietorship

A sole proprietorship can have only one owner—yourself. When you do business as a sole proprietor, there is no separate business entity; all business is conducted in your name. However, you can file a form with the Secretary of State allowing you to use a name for the proprietorship other than your own name. Because only you can be the owner or member of your sole proprietorship, this also means you are personally responsible for all debts of the sole proprietorship.

• Very simple structure and easy to form.
• Owner is personally liable for all business debts.
• Do not need to file any forms to create a sole proprietorship.
• Though accounts don’t usually recommend it, can intermingle personal and business funds.
• Only have to pay personal income tax and can usually deduct business losses.
• Recordkeeping and tax preparation is usually inexpensive.
• Only have equity contributions of a single owner.
• Can lead to tricky estate issues (e.g., if the owner passes away, may be hard to agree on the fair value of the business).

General Partnership

General partnerships are dangerously easy to form; all it takes is two or more people carrying on a business and sharing profits for a general partnership to be created. You do not have to file a specific form to create a general partnership. Though sole proprietorships also do not require that a form be filed, one must be more cautious about accidentally forming a general partnership because general partnerships are subject to more laws and rules than sole proprietorships.

• Easy to form, do not need to file forms to create.
• All general partners are personally liable for business debts.
• Partners only have to pay personal income tax and can usually deduct business losses.
• Recordkeeping and tax preparation is generally inexpensive.
• Cannot have passive investors.
• May be difficult for the partnership to continue or transition when a general partner quits.
• Partners must pay taxes on all money earned in any given year even if the money was not distributed to them that year.
• Each partner’s income is subject to employment taxes.

Limited Liability Partnership (LLP)

Not to be confused with LPs or LLLPs (see below), an LLP is basically the same as a general partnership. The major difference is that LLP general partners are not subject to personal liability for the debts of the partnership. This makes the LLP an attractive, informal type of business.

• Same considerations as for general partnerships, except that general partners generally are not personally liable for the LLP’s debts.

Limited Partnership (LP)

Unlike general partnerships and LLPs, limited partnerships (or LPs) have two types of partners: 1) general partners and 2) limited partners. General partners usually control management of the LP while limited partners generally act as passive investors in the partnership. Considerations:
• Partners only have to pay personal income tax and can usually deduct business losses (though deducting losses may be more difficult for limited partners).
• At least one partner (a general partner) must be personally liable for partnership debts.
• Taxes can sometimes be structured to avoid employment taxes.
• Can have passive investors.
• The partnership can smoothly transition when a limited partner quits, but may not transition as easily if a general partner quits.

Limited Liability Limited Partnership (LLLP)

Just as an LLP is a slightly modified general partnership, an LLLP is also a slightly modified LP that makes all general and limited partners safe from personal liability for the partnership’s debts. The LLLP is one of the newest business forms nationwide, which means that many states do not recognize the LLLP as a legal business entity.

• Same considerations as for LPs, except that both general and limited partners generally are not personally liable for the LLLP’s debts.
• Also, out-of-state courts may not recognize LLLPs conducting business in their state and may find that the LLLP is an LP or some other form of partnership instead.

Limited Liability Company (LLC)

LLCs used to be the newest form of business but are now commonplace nationwide. The LLC business form was designed as a flexible hybrid form that mixes the strengths of both partnerships and corporations. It is therefore a very popular business form.

• Informal.
• Can be more expensive and time-consuming to form.
• Generally, neither members/owners nor managers are personally liable for the LLC’s debts.
• Members/owners only have to pay personal income tax and can usually deduct business losses (unless there are more than 500 members).
• Usually taxed as a partnership but can elect to be taxed as a corporation.
• Flexible management structure that can be made to resemble corporate or partnership structures.
• Members must pay taxes on all money earned in any given year even if the money was not distributed to them that year.
• Members’ income may be subject to employment taxes.
• Accounting can be more expensive than for any other business type.
• Arkansas LLC law is somewhat muddled and unclear.


The corporation is one of the oldest business forms and is, without a doubt, the best type of business for those seeking public investors. However, corporations are arguably the most formal type of business and require extensive recordkeeping, an organized structure, and regular meetings, which some may find not to their taste.

• Formal and inflexible.
• Unlike with LLCs, corporate law is well understood and very clear.
• Passive investors (shareholders) have well-defined rights.
• Shareholders, managers, and directors are generally not subject to personal liability for the debts of the corporation.
• Preferred business type for pulling in outside investment.
• Though small private corporations can be great for some, the corporation is not always a good business type for small and start-up enterprises.
• Corporate income is generally taxed twice, first as corporate income and then as personal income distributed to shareholders. However, smaller corporations can sometimes elect to avoid corporate taxation.

For most of these business types, there are lots of formal rules for proper formation, and, as with any area of law, there are exceptions to many of the rules. Therefore, as mentioned earlier, it is a good idea to consult with a lawyer, an accountant, and other specialists before forming a business. Let us worry about the technicalities while you enjoy watching your business sprout and grow!


• Professor Carol Goforth, University of Arkansas School of Law, Business Planning: Introduction (2017) (previously referenced material from Business Lawyering Skills class).
Secretary of State Website
Arkansas Small Business Center and Technology Development Center

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Georgia Court Limits OSHA Inspection Power in Response to Expanded Inspection at Poultry Facility

The Occupational Safety and Health Administration (OSHA) recently expanded its inspection powers, but was rebuked by the Northern District of Georgia in a November 2, 2016 order in the case of United States v. Mar-Jac Poultry, Inc. Mar-Jac centered on OSHA’s behavior in expanding an authorized, limited inspection of Mar-Jac Poultry’s processing facilities under the authority of an OSHA-issued Regional Emphasis Program for Southeastern states, including Georgia (OSHA Region 4). The Court’s decision is a sigh of relief for poultry producers and similarly situated employers not only in Georgia, but also in Arkansas, Missouri, Oklahoma, and surrounding states as Arkansas and Oklahoma (Region 6), and Missouri (Region 7) are in regions with almost identical REPs for poultry producers.

History of OSHA

OSHA is a federal regulatory agency that most businesses are familiar with. However, OSHA has not always been around in the form it is in today.

OSHA’s predecessor was not an agency but a law named the Walsh-Healey Act of 1936. Congress passed the Act during FDR’s presidency and, for almost 30 years, the Act solely governed federal health and safety standards for businesses that contracted with the federal government. During this period, these standards gradually expanded and focused particularly on workplace safety standards for war production facilities during World War II.

On December 29, 1970, OSHA became the all-encompassing and authoritative agency that it is today when President Nixon signed into law the Occupational Safety and Health Act, which expanded federal oversight of workplace safety to virtually all employers in the United States. Most private employers and some state and local agencies would now have to follow standards created by and allow inspections conducted by the newly created OSHA regulatory body. Employers would also be subject to fines and, in severe situations, criminal penalties for violations of OSHA standards.

Regional Emphasis Programs

In 2015, OSHA launched a Regional Emphasis Program (REP) for poultry processing facilities in Southeastern states, including Georgia. Besides poultry, OSHA has REPs for a variety of industries and issues, including the retail industry, construction industry, and noise in the workplace. The purpose of the REPs is to (1) “address hazards or industries that pose a particular risk to workers in the office's jurisdiction” and (2) educate employers about the programs and work hazards. OSHA accomplishes these goals through outreach and enforcement activities, including inspections. REPs usually last for one-year intervals and may be renewed year-to-year. OSHA initiated the Southeastern poultry REP in late 2015 after noting in a press release that “poultry workers are twice as likely to suffer serious injuries and six times more likely to get sick on the job than other private sector workers.” The program began with a three-month training and education initiative and then moved into the targeted enforcement phase in 2016, which ended on October 25, 2016.

The Mar-Jac Inspection

Normally, an OSHA inspection is a fairly routine and limited process. OSHA inspectors are only allowed to inspect facilities, areas, and documents covered by the inspection warrant authorizing the inspection. If the inspector finds a violation, OSHA has the authority to issue fines or penalties against the employer.

However, OSHA recently expanded its normal inspection power through use of the REPs. The 2015 Southeastern poultry processing facilities REP broadly stated:

Area offices will normally conduct inspections for all complaints, formal or non-formal, which contain allegations of potential worker exposure to poultry processing hazards unless there are significant resource implications. In addition and where applicable, all unprogrammed inspections will be expanded to include all areas required by this emphasis program.

The REP essentially gave all discretion of whether and when to expand an inspection from one part of a facility to other parts or the whole facility to the OSHA Area Director for the region.

In Mar-Jac, the Northern District of Georgia found that this language was too expansive and violated administrative process rules (which are governed by the Fourth Amendment). The Court stated that expansion of an inspection requires a showing of reasonable suspicion that a violation has occurred or is occurring and will likely be found by OSHA through further inspection. The Court then held that it is okay to expand inspection of a facility if an inspector finds specific evidence of certain hazards or violations, but that it is not okay to expand inspections based on evidence of “possible” violations.

Furthermore, the Court found problems with the way the Area Director chose to expand the inspection at Mar-Jac Poultry’s facilities. Because OSHA has limited financial resources, the Area Director was only realistically able to choose to expand one inspection per year. The Area Director would therefore choose only one out of many facilities eligible for an expanded inspection. The Court found that the choice of whether to expand an inspection must be based on neutral, objective factors and cannot be decided based on one (or maybe even more than one) person’s discretion and whim.

As stated before, the Mar-Jac decision is great news for Arkansas, Missouri, and Oklahoma employers and especially for poultry producers in the area. The language from the Region 4 REP (quoted above) giving authority to the Area Director to expand inspections “where applicable” is in the Region 6 (Arkansas & Oklahoma) REP. Furthermore, all of the language quoted above is almost exactly the same in the Region 7 (Missouri) REP. These three poultry processing REPs (in Regions 4, 6, and 7) are the only three REPs for the poultry processing industry and affect 16 states overall. Though the Northern District of Georgia’s opinion is not binding outside of Georgia, Mar-Jac has set an important precedent upholding constitutional protection of facilities from arbitrary expansion of searches when there is no direct evidence of further violations.

Also of note is the fact that while none of the REPs for other industries and issues seem to contain the exact language of the poultry processing REPs, several contain similar language, so Mar-Jac may further set the standard for other industries affected by this sort of expanded OSHA inspection.


• Regional Emphasis Plans for the poultry industry and poultry processing facilities:
Region 4
Region 6
Region 7
• OSHA press release:OSHA’s Regional Emphasis Program Focuses on Reducing Illness and Injury at Southeastern Chicken Processing Facilities
• United States v. Mar-Jac November 2, 2016 Order (Case No. 2:16-CV-192-WCO-JCF)
OSHA Fact Sheet: OSHA Inspections

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Sometimes Kids Need Lawyers, Too
“One thing remains constant: children, most of all, need access to competent counsel when they come before the power of the state. Regardless of rehabilitative intentions, the truth remains that when a child’s liberty and freedom are at risk, meaningful access to legal advice and counsel is essential.”
-National Juvenile Defense Standards

Sometimes kids need lawyers, too. On June 8th, Mrs. Cook’s phone rings. The voice on the other end is saying nasty things. She hangs up, disgusted, and immediately makes a complaint to the police. Later the same day, 15-year old Gerald “Jerry” Gault is arrested along with his friend for the crime of lewd phone calls. Jerry is sent to a juvenile detention facility. No attempt was made by police to notify Jerry’s parents as to his whereabouts.

Meanwhile, Jerry’s parents have been at work all day and are confused when they cannot find Jerry once they get home. After sending Jerry’s brother out to look for him, the Gaults discover, by way of another parent, their son has been arrested. Mrs. Gault drives to the detention facility where she is told there will be a hearing on her son’s case the following day.

Jerry spends three nights at the detention facility before he is released to his parents. At a second, very informal, hearing on June 15th, Jerry is sentenced to six years in detention, until he turns 21 years old. If Jerry had been an adult when he was convicted of lewd phone calls, the maximum sentence would have been two months in jail and a $50 fine. From the day Mrs. Cook’s phone rang to the day Jerry was sentenced was seven DAYS. That was in 1964.

In the resulting case, In re Gault, the United States Supreme Court established that children have a right to counsel in delinquency proceedings. In re Gault also demonstrates exactly how fast things move in juvenile court. Juvenile defense work requires a breadth of knowledge one can only acquire through special training and time working in the system.

While juvenile law has developed and expanded dramatically since Jerry Gault was arrested in 1964, “one thing remains constant: children, most of all, need access to competent counsel when they come before the power of the state. Regardless of rehabilitative intentions, the truth remains that when a child’s liberty and freedom are at risk, meaningful access to legal advice and counsel is essential.” National Juvenile Defense Standards, Forward.

Juvenile defense is a specialized practice anchored in juvenile-specific training and practice.

Involvement with juvenile court can be confusing and scary for the entire family. This video from The Center for Court Innovation documents the feelings of anxiety and stress families go through once they are “in the system." While the video is geared specifically to New York, it applies equally to Arkansas and provides a good overview of what to expect when you are in juvenile court.

If your child needs an attorney, consider the 10 following “Guiding Principles” found in the National Juvenile Defense Standards when making your decision:

1. Juvenile defenders play a critical role in the fair administration of justice for children;
2. Juvenile defense is a specialized practice anchored in juvenile-specific training and practice skills;
3. Juvenile defense requires zealous advocacy;
4. Juvenile defense requires competence and proficiency in court rules and the law;
5. Juvenile defense requires legal representation that is individualized;
6. Juvenile defense requires representation that is developmentally appropriate;
7. Juvenile defense is based on the clients’ expressed interests;
8. Juvenile defense requires that clients be meaningful participants in their defense;
9. Juvenile defense includes counseling clients through the legal and extralegal processes;
10. Juvenile defense includes ensuring that clients and their

As a prosecutor in juvenile court for five years, Law Group attorney, Heather Campbell, was responsible for approximately 15,000 delinquency cases. These matters ranged from minor violations, such as vandalism and shoplifting, to much more serious crimes, including gang-related shootings prosecuted in adult court. The process and outcome of a delinquency proceeding can drastically impact the rest of a child’s life. As a juvenile defense attorney, Ms. Campbell provides her clients and their families with up-to-date knowledge of the criminal and juvenile legal systems as well as the diligent and individualized defense that every child deserves.

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Overview of Federal Discrimination Law

This post is Part I of a pair of posts that will provide a summary of federal employment discrimination law as it applies to private employers. The purpose of these posts is to provide employers with a background for a separate series of posts that we’re hoping to publish regularly regarding recent Equal Employment Opportunity Commission (EEOC) lawsuits. The second post in this two-part series explains the process of filing a discrimination charge against an employer and in what circumstances the employee or EEOC may sue an employer for an alleged violation of federal discrimination law. Our later ongoing series about current EEOC lawsuits will summarize certain new discrimination lawsuits filed by the EEOC against employers. We hope these posts will educate employers on practices to avoid and provide ideas to improve their anti-discrimination efforts. As stated before, these posts are summaries and are not meant to serve as legal advice for any particular entity or individual, nor do these posts create an attorney-client relationship. If you have specific questions or concerns about federal employment law, give us a call, and we’d be happy to help (479-316-3760).

Overview of Areas of Discrimination
Federal law protects employees and applicants from employment discrimination, including:

1. “Unfair treatment [or discrimination] because of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information;

2. Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information;

3. Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability;

4. Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit;” and

5. Unequal pay given by an employer to male and female employees who perform identical jobs or substantially equal jobs.

Some of the above requirements may not apply to private employers with 20 or fewer employees, or to private employers who have fewer than 20 employees who have worked for the employer for 20 or more weeks. However, beyond those limitations, most private employers (“covered employers”) in the U.S. are prohibited from discriminating against their employees as stated above.

Now let’s explore the specific rules regarding prohibited discriminatory practices.


• In General

Federal law prohibits discrimination by employers against employees or applicants who fall within any of the below-described protected classes “in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.” In short, covered employers may not discriminate against applicants, employees, or former employees in most any aspect of those employment relationships.

• Age Discrimination

This applies to employees or applicants who are 40 years old or older. The law allows employers to favor older workers over younger workers, even if both workers are 40 or older. An employer’s policy or practice that applies to all employees and/or applicants may be found to be discriminatory based on age if it has a negative impact on employees or applicants who are 40 or older and is not based on a “reasonable factor other than age,” as defined by law.

• Sex Discrimination

Sex discrimination includes discriminatory conduct based on an employee or applicant’s gender identity or sexual orientation. An employer’s policy or practice that applies to all employees and/or applicants may be discriminatory if it has a negative impact on employees or applicants “of a certain sex and is not job-related or necessary to the operation of the business.”

• Pregnancy The rules for sex discrimination also apply to unfavorable treatment of employees or applicants “because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”

• Disability Discrimination

Federal law prohibits unfair treatment against qualified employees or applicants with a disability because the employee or applicant has a disability, has a history of a disability, or is believed by the employer to have a disability. Also, employers may not treat an employee or applicant unfavorably based on their relationship with someone who has a disability. In this context, “disability” includes only those disabilities defined by law.

• Medical Exams

Disability discrimination may include an employer’s pre-offer request for an applicant’s medical or disability information. Federal law prohibits employers from asking an applicant medical questions, requiring an applicant to take a medical exam, or asking an applicant if he has a disability or about the nature of his disability before the employer extends a job offer to the applicant.

Post-offer, federal law allows employers to condition employment on applicant’s answering medical questions or completing a medical exam, but only if the employer requires the same of all new employees in that same type of job.

Once an employee has started working, federal law generally only allows employers to ask that employee medical questions or to require the employee to take a medical exam “if the employer needs medical documentation to support [the] employee’s request for an accommodation, or if the employer believes that [the] employee is not able to perform a job successfully or safely because of a medical condition.”

• National Origin Discrimination

“National origin” includes the country or part of the U.S. a person comes from and a person’s actual or perceived ethnicity. “National origin” also includes a person’s accent, but exceptions may be made if the accent would “seriously interfere[ ] with the employee’s job performance.” National original discrimination may also include discrimination based on the national origin of an employee or applicant’s spouse. National origin discrimination may still exist where a person discriminates against someone of the same national origin.

An employer’s policy or practice that applies to all employees and/or applicants may be discriminatory based on national origin if it has a negative impact on employees or applicants “of a certain national origin and is not job-related or necessary to the operation of the business.” For example, an employer may not institute a company-wide “English-only policy” unless doing so is necessary “to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”

Closely related to national origin, in many situations, federal law also prohibits discrimination based on an employee or applicant’s citizenship or immigration status. The law prohibits employers from refusing to accept lawful documentation that establishes a person’s employment eligibility, or from requiring submission of additional documentation regarding employment eligibility beyond what is legally required, when the employer does so for a discriminatory reason.

• Race/Color Discrimination

Federal law prohibits discrimination based on race or characteristics associated with race (e.g., skin color, facial features, etc.), or based on the fact that an employee or applicant is married to or associated with a person of a certain race or with certain racial characteristics. Race discrimination may still exist where a person discriminates against someone of the same race. An employer’s policy or practice that applies to all employees and/or applicants may be found to be discriminatory based on race if it has a negative impact on employees or applicants “of a particular race or color and is not job-related and necessary to the operation of the business.”

• Religious Discrimination

Federal law prohibits unfavorable treatment based on religion or religious beliefs, including in some cases the religion or religious beliefs of an employee or applicant’s spouse. Furthermore, the law prohibits employers from segregating employees in the workplace or by job based on religion, or from forcing employees to participate in religious activity as a condition of employment. “Religion” in this context includes traditional religions, including Christianity, Buddhism, Hinduism, Islam, and Judaism, and sincerely held religious, ethical, or moral beliefs. “Religion” may also include the religious apparel a person chooses to wear, or grooming habits.

• Discrimination Based on Genetic Information

Federal law prohibits discrimination based on genetic information and use of genetic information to make employment decisions. Also, federal law generally prohibits employers from requesting, requiring, purchasing, or disclosing genetic information. In this context, “genetic information” “includes information about an individual’s genetic tests and the genetic tests of an individual’s family members . . . an individual's request for, or receipt of, genetic services; participation in clinical research that includes genetic services by the individual or a family member of the individual[;]” and genetic information of a fetus or embryo carried or legally held by an individual or by certain family members of the individual.

2. Harassment

Employers may become liable for workplace harassment when a victim’s continued endurance of the harassment becomes a condition of continued employment, the harassment is so severe and frequent as to create a hostile work environment, or the employer takes certain adverse employment actions against an employee or applicant in relation to the harassment.

“Harassment” may include offensive remarks, racial slurs, physical assaults or threats, intimidation, the display of offensive symbols, etc. A harasser can be anyone, regardless of whether or not they are employed by the employer and regardless of what position they hold if they do work for the employer. Furthermore, a victim of harassment may not necessarily be the person harassed.

3. Reasonable Accommodation

Federal law requires employers “to reasonably accommodate an employee’s religious beliefs or practices” and “to provide reasonable accommodation to an employee or applicant with a disability,” unless doing so would cause undue hardship to the employer’s business operations. In this context, “disability” includes any condition related to pregnancy or childbirth, and employers must treat pregnant or post-childbirth employees the same as any other employee with a temporary disability. Reasonable accommodations may include adjusting an employee’s work environment, allowing flexible schedules, modifying workplace policies, etc.

4. Retaliation

Unlawful retaliatory conduct may include retaliation against an employee or applicant who files an EEOC charge, is a witness in a discrimination investigation, refuses to follow orders that would lead to discrimination, requests a reasonable accommodation for a protected matter (i.e. disability, religious practice, etc.).

5. Equal Pay

Equal pay violations may also count as sex discrimination. Equal pay violations based on sex specifically fall under the Equal Pay Act, but other federal discrimination laws also prohibit unequal pay based on race/color, religion, national origin, age, or disability.

Types of pay covered by the Equal Pay Act include “salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.” If an employer finds that men and women are not being paid equally, federal law prohibits that employer from decreasing wages to equalize the gap.

ReferencesCoverage, U.S. Equal Employment Opportunity Commission, by Type, U.S. Equal Employment Opportunity Commission, (and its associated links).


This article focuses only on federal, not state or local, employment discrimination law as it applies to private employers. For information about the effect of federal discrimination law on other types of employers, see Coverage, U.S. Equal Employment Opportunity Commission, State employment discrimination law is often similar to its federal counterpart. An example of a difference between federal and state employment discrimination law is that some states protect classes of people that federal law does not (for example, some states protect employees from discrimination based on marital status).
Federal employment discrimination statutes providing employee protections include Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Laws Enforced by EEOC, U.S. Equal Employment Opportunity Commission,
All quoted text in this post comes from the EEOC websites listed in the “References” section.

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Overview of Federal Discrimination Law Part II

This is Part II in our series summarizing federal employment discrimination law as it applies to private employers (see Part I). Today we’re going to discuss what happens when an employee believes her employer has violated a federal discrimination law. What does the employee do? Where does she go? Ideally, employers should encourage open-door policies for employees who believe they have been mistreated or discriminated against. Employers should do their best to listen to their employees and fix any problems in a timely fashion. However, even with open-door policies in place, an employee will sometimes seek legal remedies for the alleged discrimination or harassment. Below is a general summary of the administrative process that an employee must go through before she may file a lawsuit against her employer for alleged violations of federal employment discrimination law. Again, this is a summary of what usually happens. This post is not meant to serve as legal advice for any particular entity or individual, nor does this post create an attorney-client relationship. If you have questions about how the law applies to your business or a specific situation, give us a call as we’d be happy to help (479-316-3760).

Overview of the EEOC Complaint & Investigative Process

When an employee or applicant (we’ll call either an “employee”) believes he has been discriminated against by his employer or potential employer, he must generally file a Charge of Discrimination (or “charge”) with the EEOC before filing a lawsuit against the employer. A charge does not mean that an employer has necessarily violated federal employment discrimination law. If the charge is timely filed, the EEOC will often offer to resolve the dispute between the employee and employer through mediation. Compared to litigation, mediation often saves employers time and money, but it is not always successful. If mediation is unsuccessful, the EEOC may choose to investigate the discrimination charge.

The purpose of an EEOC investigation is to determine if there is “reasonable cause” to believe discrimination has occurred. To that end, the EEOC will gather information from both the employee and employer during the investigation. The EEOC may ask the employer for “statements of position,” policies, personnel files, etc. In addition, the EEOC may visit the employer on-site and conduct interviews of employees.

The EEOC’s investigation is generally limited to fact-finding regarding the charge or charges brought by the charging employee. However, in some cases, if the investigation reveals evidence of systemic discrimination by the employer, the EEOC may expand its investigation of an individual charge to a much broader “systemic investigation” to find out whether an employer has a discriminatory policy or practice of discrimination against a protected class of persons. Sometimes, the EEOC won’t even wait until it formally begins an investigation of an individual charge before it expands to a systemic investigation of the employer’s practices.

Whether the EEOC conducts an individual or systemic investigation, if the EEOC determines through its investigation that there is “reasonable cause” to believe discrimination or other unlawful conduct has occurred, and if informal settlement and conciliation are unsuccessful, the EEOC may decide to sue the employer. If the EEOC decides not to sue, and in cases where the EEOC determines there is no “reasonable cause” in the first place, the EEOC will give the charging employee a “right to sue” letter allowing that employee to sue the employer within 90 days. If a court or jury determines an employer has violated employment discrimination law, the employer may have to pay compensatory damages, punitive damages, or other legal fees or expenses, and/or take other corrective actions, such as reinstating an employee or ending discriminatory practices.


After a Charge is Filed, U.S. Equal Employment Opportunity Commission, a Charge , U.S. Equal Employment Opportunity Commission, , U.S. Equal Employment Opportunity Commission,


This article focuses only on federal, not state or local, employment discrimination law as it applies to private employers. For information about the effect of federal discrimination law on other types of employers, see Coverage, U.S. Equal Employment Opportunity Commission, State employment discrimination law is often similar to its federal counterpart. An example of a difference between federal and state employment discrimination law is that some states protect classes of people that federal law does not (for example, some states protect employees from discrimination based on marital status).
Federal employment discrimination statutes providing employee protections include Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Laws Enforced by EEOC, U.S. Equal Employment Opportunity Commission,

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