Tuesday, March 27, 2012

EEOC Settles Race Harassment and Retaliation Claim Against Port-A-Potty Supplier for $50,000

The Equal Employment Opportunity Commission (EEOC) has announced a settlement in a suit filed alleging racial harassment and retaliation filed against a supplier of portable toilets, Northern Nevada-based Sierra Restroom Solutions, for $50,000.  From the EEOC press release on the settlement:
According to the EEOC, driver Michael Scales endured racist comments, epithets and harassment from his supervisor and his coworker during the one and a half years he worked for Sierra Restroom Solutions. His supervisor used the N-word to refer to Scales in conversation with others, and in another instance, made fun of white employees for performing worse than Scales on a work-related test. In addition, his co-worker flaunted a swastika tattoo and talked about the need to keep the white race “pure.” After Scales complained to his supervisor a second time that month about his co-worker’s racist behavior, he was fired just two days later.
The facts in this case were quite egregious and I am glad to see a good settlement reached.  The case was EEOC v. Sierra Restroom Solutions, LLC., Civ. No. 3:09-CV-00537.

Wednesday, March 21, 2012

March Employment Law Blog Carnival

The March 2012 edition of the employment law blog carnival has been posted over at Attorney Philip K. Miles' blog, Lawffice Space and is available here.  Happy reading!

Tuesday, March 20, 2012

Illinois and Maryland Considering Legislation to Ban Employers from Asking Applicants for Facebook Passwords

In an emerging issue with employment applicants and even those already employed, lawmakers in two states, Illinois and Maryland, are taking steps to make it easier for people to avoid application pitfalls by passing legislation that would prohibit employers from requesting job applicants to disclose their Facebook password and login information.  Sure applicants can simply decline to provide the passwords but that obviously makes a bad impression and hurts an applicants chances of landing the job so this legislation avoids that situation altogether and allows applicants to maintain their privacy.


The ABA's website has a short article on the prospective legislation and cites famous law professor Orin Kerr:  "It's akin to requiring someone's house keys."


The Milwaukee Journal Sentinel is asking readers whether they would provide their password to their current employer.

Wage & Hour Litigation Exploding

New figures and statistics are out on wage & hour claims filed and it was revealed that claims under the Fair Labor Standards Act (FLSA) have increased more than 15% from 2010 to 2011 and increased more than 325% over the last 10 years.  From the Law.com article on the trend, "[i]n the reporting year ending March 31, 2011, there were 7,006 wage and hour claims filed in federal courts across the United States. [Richard Alfred, Boston-based head of the national wage and hour practice of Seyfarth Shaw] says that number is higher than the total filings of all other types of employment cases combined. Aside from a 2008 dip from 6,786 to 5,302 cases, the number of lawsuits filed has been on a steady upward trajectory."
The remainder of the Law.com article discusses how Alfred, an employer-side attorney, believes the FLSA needs revising as it is antiquated and does not take into account the modern workplace centered on technology.  The Supreme Court hasn’t heard a wage and hour case since 2004. This spring, SCOTUS will weigh in on white-collar exemptions for the first time in Christopher v. SmithKline Beacham Corp. Arguments in that case will be heard April 16.

Monday, March 19, 2012

MN Publishing Company to Pay $150,000 to Settle Sexual Harassment Claim Filed by Several Female Employees

The Equal Employment Opportunity Commission (EEOC) has announced a major settlement in a case filed against a music print publishing company in Minnesota, Hal Leonard Publishing Company, filed by a class of female employees.  The case has settled for $150,000 after the EEOC's investigation revealed "that [the] women were subjected to unwelcome grabbing and squeezing as well as sex-based comments and actions at Hal Leonard’s facility in Winona, a city of 50,000 in southeast Minnesota.  The harassment was perpetrated by co-workers and, despite multiple complaints to Hal Leonard management, the misconduct did not cease.  Following an investigation of the discrimination charge, the EEOC determined that there was reasonable cause to believe the company violated Title VII of the Civil Rights Act of 1964."


In addition to the $150,000 to be paid by Hal Leonard, the employer has also agreed to:


(1) provide an apology to the former employee who filed the original discrimination charge; 
(2) conduct annual anti-discrimination training for three years which the EEOC may observe; 
(3) provide the EEOC with documentation of an accountability provision in performance evaluations of managers, supervisors and lead employees; and 
(4) provide the EEOC with documentation of all sexual harassment complaints for three years. 

Will an Attorney Take My Case on a Contingency Fee Arrangement?

A very common question I get--and understandably so--is whether I take cases on a contingency.  That is, potential clients want to know whether attorneys are willing to work on cases and only get paid a certain percentage upon any potential recovery (usually 33.3%).  This is ideal for potential clients as their out-of-pocket expenses to pursue lawsuits are minimal and forces an attorney to work hard to receive any pay for their efforts.  The short answer to this commonly-asked question is: "it depends."

In employment law cases, it depends on a number of factors but mostly depends on the value and strength of the case.  Unfortunately, not every case of discrimination is going to be worth a lot of money despite the egregious conduct of an employer.  As discussed in a previous blog post, it may be harder to get attorneys to take employment law cases on a contingency fee arrangement at the state level before the Equal Rights Division as Governor Scott Walker is expected to sign legislation that repeals a prevailing party's right to punitive and compensatory damages under the Wisconsin Fair Employment Act (WFEA).  So, for example, if a complainant files a discrimination claim and then "mitigates their damages" by either finding new employment that pays as much or more money or is reinstated by the employer with the exact same pay and working conditions, it could be that such a case before the ERD is not worth very much in damages (money) and an attorney may not be willing to work on a contingency fee arrangement in that situation.  However, if a complainant was making a fairly good salary and out of work for, say, a year or more, that case may be extremely valuable and an attorney would be more likely to take such a case on a contingency fee arrangement but it would still depend on the strength of the case.

It is always best to call an attorney to run your case by them so they can attempt to assess the value of the case.  Often times potential clients like to "Google" what other plaintiffs and complainants have won in their cases and that is not a good way to value your case as every case's facts are different and not worth the same.    It is also not fair to get upset with attorneys if they are not willing to handle your case on a contingency fee arrangement.  So, it is best to be patient and call around if you are not happy with the responses you receive but keep in mind that if 9/10 attorneys decline a contingency fee arrangement, that may be telling of your case.

Wednesday, March 14, 2012

7th Circuit: "The ADA does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified."

The Court of Appeals for the Seventh Circuit recently released an opinion in an Americans with Disabilities Act Case, EEOC vs. United Airlines, Inc., Case No. 11-1774, holding that the ADA does not require employers, as a reasonable accommodation, to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified.  


The 7th Circuit's opinion was very short as the issue had been addressed in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), but the EEOC attempted to argue that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling.  However, the 7th Circuit maintained that "several courts in this circuit have relied on Humiston- Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality."


At issue was United's "Reasonable Accommodation Guidelines that address accommodating employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines note that “transfer . . . [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guidelines specify that the transfer process is competitive. Accordingly, an employee will not be automatically placed into a vacant position. Instead, employees needing accommodation will be given preference, meaning they can submit an unlimited number of transfer applications, they are guaranteed an interview and they will receive priority consideration over a similarly qualified applicant."  The EEOC filed suit alleging this policy violated the ADA asking the Court to reconsider its stance and find reassignment required by employers to reasonably accommodate disabled employees.

Tuesday, March 13, 2012

Should I File My Employment Discrimination Claim with the EEOC or the ERD?

A commonly misunderstood and confusing part of employment law litigation for employees who feel they have been discriminated against in Wisconsin is whether to file their claim with the Wisconsin Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC).  While both entities were created to allow people to file discrimination complaints, there are very big differences between the two agencies that people ought to be aware of before filing their discrimination claims.


Equal Rights Division
The ERD is a state-level administrative agency under the Wisconsin Department of Workforce Development that processes and handles employment discrimination claims filed under the Wisconsin Fair Employment Act (WFEA).  The ERD does not deal with federal laws like the Americans with Disabilities Act (ADA or Title VII, but the WFEA covers disability and race discrimination claims, among other things.  The difference with filing a claim with the ERD is that it tends to be a faster process but the downside, now, is that claimants are limited in the damages (money) they can be awarded if they prevail.  As discussed in a previous blog post,  Wisconsin is very close to repealing the law enacted to allow prevailing claimants to be awarded punitive and compensatory damages, which are available under federal laws.  Thus, prevailing claimants who file claims with the ERD are limited to what is known as a "make-whole remedy."


The other important differences with filing a claim with the ERD is that there is no filing fee, it's easier and simpler to file a claim as they are not subject to a motion to dismiss and the ERD recently began offering a mediation service that is free of charge handled by ERD administrative law judges.  People who feel discriminated on the basis of their arrest and conviction record or sexual orientation must file their claim with the ERD as there is currently no federal law that protects against this type of discrimination.


Equal Employment Opportunity Commission
The EEOC is the federal agency that processes claims filed under federal laws like the ADA, ADEA, Title VII, EPAand GINA.  While the EEOC is an excellent agency, it often takes claims much longer to be investigated and processed and more often than not, the EEOC does not prosecute claims and issues charging parties a "Right to Sue" letter, which gives charging parties 90 days to file suit in federal court on their own with the assistance of a private attorney, if they choose and can afford one, or forever have their claim dismissed.  Once a charging party receives a Right to Sue letter, they have to pay a filing fee, serve the defendant and then follow the Federal Rules of Civil Procedure which are quite onerous.  One of the major advantages to pursuing claims under federal law is the ability to pursue compensatory and punitive damages--that is, a successful plaintiff is eligible to receive a lot more money if they prevail.  


People who feel they have been discriminated against in their employment are encouraged to discuss their case and options with a local employment law attorney prior to filing their claims, even if they feel they cannot afford an attorney.  

Monday, March 12, 2012

Wisconsin Law Allowing Compensatory and Punitive Damages Soon to be Repealed

A very short-lived law in Wisconsin that allowed winning complainants in discrimination cases in the Equal Rights Division (ERD) a chance to be awarded compensatory and punitive damages is on the verge of repeal after the state Assembly passed Senate Bill 202, which seeks reversal of the Governor Doyle-signed bill from 2009.


Governor Walker is expected to sign the bill and that will leave discriminated employees with the option of filing with the ERD and only receiving what is called a "make-whole" remedy limited to back pay, lost benefits, costs and attorney's fees or filing in federal court, which is a much more onerous and difficult route.  Attorney Aaron Graf has a good article on the Wisconsin Journal's website here on the law change.

Wisconsin Governor Scott Walker Signs Job Training Bill

Wisconsin Governor Scott Walker signed a job training bill that creates a pilot program to give people on unemployment a chance to take part-time training jobs with employers that could lead to full-time work.  Participants in the one-year program will get an additional $75 a week in unemployment benefits.  The Milwaukee Journal Sentinel has a very brief article on the signing of the bill here.

Tuesday, March 6, 2012

Have I Been Properly Labeled as an Exempt Manager for Overtime Purposes Under the FLSA?

As many people are aware, some employees are exempt from over time pay but don't necessarily know why.  The Fair Labor Standards Act (FLSA), the law that governs wage & hour law and overtime pay, specifically excludes--or exempts--from overtime pay, “any employee employed in a bona fide executive, administrative, or professional capacity.”  However, simply labeling an employee a "manager" or "supervisor" will not automatically exempt that employee from receiving overtime pay.  

The FLSA sets forth specifics guidelines that must be met for an employee classified in a managerial or other exempt status to be classified correctly.  To qualify for the executive exemption under the FLSA, an employee must perform office or non-manual work, and the employee’s duties must meet all of the following criteria:
  • The employee must have a “primary duty” of managing the enterprise or a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees (or the equivalent); and
  • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.
An employee classified as exempt must also be an authority over a legitimate subordinate set of employees.  That is, an employee will not qualify as an exempt executive unless the employee manages a “customarily recognized department or subdivision.” The “department or subdivision” must be a recognized unit within the employer’s organization; it cannot simply be a collection of individuals. The employee must do more than merely supervise two or more employees; he or she must be in charge of and have as his or her primary duty the management of the recognized unit.

Most employers are accurate and in good faith properly classify their employees though some court cases have shed light on those who have classified improperly.  In  Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 173 (2000), the court held that having "manager" in an employee's title is not enough to qualify as exempt if they merely manage a function, project, account, etc.  In  Ely v. Dolgencorp, LLC, 2011 U.S. Dist. LEXIS 140882 (E.D. Ark. 2011), the Court noted that areas of business like retail need to be careful as many employees labeled in management may spend the majority of their time performing non-exempt work as part of a multi-level management system.

In addition to the work performed by an employee in an exempt position is the compensation they receive.  The FLSA requires the exempt employee must regularly receive a pre-determined amount of compensation every pay period, regardless of the quality or quantity of the employee’s work. The minimum amount required by the FLSA is $455 per week. Some states, such as California, require higher minimum salaries. Certain deductions from the employee’s salary could cause the employee not to meet the salary basis requirement and, therefore, not qualify for the exemption.

Thus, it is not always black-and-white or so easy to determine whether an employee has been properly classified as exempt from overtime pay under the FLSA so if you believe you are improperly classified, contact a wage & hour attorney to assess your case.

EEOC Settles Religious Discrimination Suit Over Applicant Rejected for Not Being Able to Work Saturdays

The Equal Employment Opportunity Commission (EEOC) has announced a settlement in a religious discrimination suit filed against Convergys Customer Management Group, a subsidiary of the Cincinnati-based Convergys Corp, a global provider of customer management services.  Convergys will pay $15,000 to the Plaintiff, Shannon Fantroy, who applied for a job with the Defendant but was cut off during the interview when he told the Defendant that he could not work Saturdays for religious purposes.  Specifically, Fantroy’s religious beliefs as a Hebrew Israelite require him to observe the Sabbath from sunup until sundown on Saturday. A recruiter for Convergys interviewed Fantroy and told him that he would have to work weekends. The Commission said that Fantroy informed the recruiter that he was unable to work on Saturdays due to his religious beliefs. The recruiter then told Fantroy that the interview was over unless he could work Saturdays, the EEOC asserted.


Part of the settlement agreement also included a consent decree, which will have to be approved by the court, that provides injunctive relief, including training for recruiters on religious discrimination and accommodation law, and a new procedure for recruiters that will allow applicants to request a religious accommodation once they are offered a job, and will require the interview/application process to be completed even if the applicant informs the recruiter about the need for a schedule adjustment. In addition, all applicants during the decree’s two-year term will receive written notice that they may be entitled to an accommodation.


The case is EEOC v Convergys Customer Mgmt Group, No 4:11-cv-00395-AGF