Wednesday, October 30, 2013

ENDA Could Finally Make Progress in Congress As Early as Next Week

Today Twitter was buzzing about news that the Employment Nondiscrimination Act (ENDA) is expected to be introduced in the Senate by Senator Harry Reid of Nevada, the majority leader, as soon as Monday.  60 votes are needed to overcome a filibuster and it appears there's about 59 votes in support of ENDA.  The New York Times reports:  

The Republicans who are expected to vote yes are Susan Collins of Maine, Orrin G. Hatch of Utah, Mark S. Kirk of Illinois and Lisa Murkowski of Alaska. Ms. Collins and Mr. Kirk, who are cosponsors of the bill, have been working to persuade colleagues on their side of the aisle.
So far, the most likely undeclared Republican supporter appears to be Rob Portman of Ohio, who said this week that he was inclined to vote yes. Mr. Portman said earlier this year that he had come around on the issue of same-sex marriage after learning that his son is gay.
While Mr. Manchin’s support makes it much more likely that the bill will get through the Senate, the Republican-controlled House of Representatives is another story.
Along with no federal protection against  discrimination against people on the basis of sexual orientation and gender identity, there are also 29 states that also do not provide such protection as well.  Wisconsin, under the Wisconsin Fair Employment Act (WFEA), does provide such protection.

I have previously written about ENDA and those posts can be found here.

Happy Birthday, Pregnancy Discrimination Act of 1978

Today the Pregnancy Discrimination Act of 1978 turned 35 years old!  Though the legislation has been important and useful to expecting workers, more protection is still needed that the Pregnant Workers Fairness Act would provide but has yet to make progress in Congress.

Tuesday, October 29, 2013

5th Circuit Holds "Locker Room Talk" in All-Male Workplace Constitutes Sexual Harassment

In an interesting decision out of the Court of Appeals for the Fifth Circuit, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII.  

The case, EEOC v. Boh Brothers Construction Company, involved an iron worker and structural welder, Kerry Woods, who had a supervisor, Chuck Wolfe, that allowed and cultivated what the 5th Circuit called, "an undeniably vulgar place" where "very foul language" and "locker room" talk was commonly used.  After Woods revealed that he used “Wet Ones” instead of toilet paper at the work site, he was consistently targeted by Wolfe for being “kind of gay” and “feminine,” and was called a “princess,” a “pu–y,” and a “fa–ot,” two to three times per week.

The facts get even worse:

Wolfe approached Woods from behind and simulated anal intercourse with him, exposed his penis to Woods while urinating, suggested that Woods perform fellatio on him, and made crude remarks about Woods’ daughter — all of which caused Woods to feel “embarrassed and humiliated.”  The evidence suggested, however, that while Wolfe thought that Woods was “not manly enough,” he did not in fact believe Woods to be a homosexual.  The evidence also suggested that Wolfe used similar language in speaking with other workers, and that vulgarity was commonplace there.

The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Woods against the employer, Boh Brothers, and a jury found that Boh Brothers was liable for damages arising from the sexual harassment of Woods by Wolfe. Boh Brothers appealed to the 5th Circuit.  

The Fifth Circuit held that a sexual harassment claim could be established by showing “evidence of sex-stereotyping” and thus “the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”  In this, the Court held, the focus is on the alleged harasser’s subjective perception of the victim.

In other words, the Court did not “require a plaintiff to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective proof; here, for example, that Woods was not, in fact, ‘manly.’” Here, Wolfe’s subjective believe that Woods was not manly enough was sufficient to establish that he harassed woods “because of . . . sex,” as required under Title VII.
In so ruling, the Fifth Circuit explained that Title VII is not “a general civility code of the American workplace.”  However, Judge E. Grady Jolly, in his dissent, accused the majority of doing just that: “The vulgarities can cast turmoil on a strong stomach, but that does not mean that the laws of the United States have been violated, and it does not require Title VII and the EEOC to serve as federal enforcer of clean talk in a single sex workforce.”
The dissenting opinions took aim at the decision fearing it may spark an avalanche of litigation in response to vulgar language in the workplace, which they claimed is "ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment."

Two Recent Developments in Overtime and Wage & Hour Law

Attorney Danny Wash over at his blog, "Texas Employee Rights," has an excellent summary of two developments in wage & hour law:

The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked. 
The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). 
The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.
These are fairly complex and complicated areas to understand so if you believe you are not being paid correctly, it is best to consult with a wage & hour attorney.

Wednesday, October 16, 2013

October Edition of the Employment Law Blog Carnival is Live!

Attorney Tim Eavenson, at his blog, Current Employment, hosted this month's edition of the Employment Law Blog Carnival, titled, "Haunted House Edition."  Be sure to check it out!  #ELBC

Amazon Sued in Class Action For Unpaid Security Screenings

Popular online merchant Amazon has been sued by a Pennsylvania employee who filed a class action law suit alleging that Amazon put him and other workers through extensive 10-20 minute security screenings when they were off the clock. The screenings took place when employees entered the building and again after they clocked out for lunch and for the day, during which they were not being paid.

Inside Counsel has a short write-up of the lawsuit: 

The complaint was filed in a Philadelphia court house and alleges that daily, over 100 workers were subjected to these extensive and unpaid security screenings. The suit attempts to recoup lost wages for the time associated with the frisks.
“Defendants have never paid warehouse workers for time spent processing through this required post-shift screening process prior to exiting the Amazon Fulfillment Center,” Amazon said in court documents stated. “As a result of the compensation practice utilized by defendants, warehouse workers are not compensated for all time during which they were required to be on the premises of the Amazon Fulfillment Center.”  
This is the second suit against Amazon alleging improper compensation in relation to security screening time. A similar suit was brought in September by a group of workers in a Tennessee fulfillment center. Plaintiffs in that case where offered a settlement that reimbursed them for the time that they lost during the frisks.
This often-litigated issue is known as "compensable time" under the Fair Labor Standards Act (FLSA).

Monday, October 14, 2013

New York Court Rules Unpaid Interns Not Able to Pursue Sexual Harassment Claims Against Workplace

A New York federal district court ruled last week that an unpaid intern from China, Lihuan Wang, could not pursue  a sexual harassment claim under New York human rights laws because she was not paid, and therefore not considered an employee.  Most people are probably not aware that most every employment law statute only governs an "employee-employer" relationship and often times the focus of litigation may be whether this relationship exists.  It's part of the reason there is the independent contractor label and the issue of potential employee misclassification. 

Yahoo! Finance has a nice write-up of the court decision:

In a lawsuit, she said the station's Washington D.C. bureau chief Zhengzhu Liu sexually harassed her after luring her to his hotel room on the pretext that he wanted to talk about her job performance and the possibility of hiring her full time.

When the two were alone, Wang alleged that Liu threw his arms around the then 22-year-old intern, tried to kiss her and "squeezed her buttocks with his left hand." After she refused to let him go any further and left the hotel, she said Liu no longer expressed interest in permanently hiring her.

New York Judge Kevin Castel ruled that Wang can't assert these claims, because as an unpaid intern, she didn't have the status of an employee.

"It is uncontested that Wang received no remuneration for her services," Castel wrote. "New York City's Human Rights Law's protection of employees does not extend to unpaid interns."

The Yahoo! story also points out that only one state, Oregon, has broadened out the standards for harassment to protect unpaid interns. The state passed a law in June that extends such protections to all interns, whether they're paid or not.

It is possible Wang could have pursued her harasser in his individual capacity under common laws or any specific New York law fitting the facts but employers tend to have the bigger, deeper pockets making it impractical to bring such suits against individuals.  However, if liability cannot be imputed upon the employer, then Wang, as an unpaid intern, unfortunately has to experience the harsh reality of the way employment laws are written currently.

Friday, October 4, 2013

10th Circuit Overturns Decision in Abercrombie Religious Headscarf Case

Last month I reported on a religious discrimination case filed by the Equal Employment Opportunity Commission (EEOC) against retailer Abercrombie & Fitch whereby a Court held the retailer violated Title VII when it terminated a Muslim employee for wearing a head scarf after a district manager visited the store and saw the employee's attire.  In another case involving the same claims with different facts, Abercrombie appealed a federal district court's grant of summary judgment in favor of the EEOC and against them and the Court of Appeals for the Tenth Circuit reversed and ruled in favor of Abercrombie.

From the case:

Abercrombie & Fitch ("Abercrombie") appeals from the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission ("EEOC") and the court's denial of summary judgment in favor of Abercrombie, on the EEOC's claim that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee, Samantha Elauf, in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. @@ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. @ 1291, we reverse the district court's grant of summary judgment to the EEOC. Abercrombie is entitled to summary judgment as a matter of law because there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or "hijab" for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy. Accordingly, we remand the case to the district court with instructions to vacate its judgment and enter judgment in favor of Abercrombie, and for further proceedings consistent with this opinion.

The opinion is over 90 pages long and the case is: EEOC vs. Abercrombie & Fitch Stores, Inc., Case No. 11-5110 (10th Cir. Oct. 1, 2013)