Archive for December, 2015

Court Tosses Contract Attorney’s OT Suit

It’s straight time–not overtime–for a contract attorney who worked long hours for a New York City law firm doing document review.

Attorney William Henig struck out Wednesday in his lawsuit to recover overtime for the plus-40 hours he put in, as a federal district court ruled that he was in fact practicing law when doing document review, no matter how dull and routine it often is.

A contract attorney doing routine document review for a law firm is not entitled to overtime under New York’s wage and hour law or the federal Fair Labor Standards Act, a federal district court in New York ruled on Wednesday.

The practice of law is specifically exempt from overtime under the FLSA.

The suit stems from two months of work Mr. Henig did in 2012 as a temporary attorney.  For $35 an hour, he looked through almost 13,000 documents to determine if they were relevant to a litigation Quinn Emanuel was working on and if they were considered privileged or confidential.

In his suit, Mr. Henig argued he was told to follow strict instructions and “was not required to and in fact could not utilize any legal knowledge and/or judgment.”

The court didn’t buy that argument, finding instead that he did have to exercise some discretion and independent thinking.

NLRB: Whole Foods’ Prohibition on Recording Conversations, Taking Videos Violates Labor Law

Employers should think twice before adopting any policy that restricts employees from taking their conversations or taking photographs in the workplace.

Whole Food’s policy prohibiting workers from taking photos or recording conversations inside a store “unless prior approval is received” from a manager or executive, or “unless all parties to the conversation give their consent” was a violation of federal labor law, the National Labor Relations Board ruled yesterday.

Ostensibly, Whole Foods put this policy in place for the benefit workers–“to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

In a 2-1 decision, however, an NLRB majority ruled that the policy violated the National Labor Relations Board and had the very chilling effect that Whole Foods claimed it sought to prevent. Such a blanket prohibition, for example, could forbid employees from taking photos that document unsafe working conditions, or recording statements that reveal discrimination.

You can download the ruling in the Whole Foods case from the NLRB’s website.

At a Loss: Some Pregnant Employees’ Jobs Disappear When They Take Maternity Leave

As 2015 draws to a close, sad to say that there are still some women who have been forced by their employers to choose between taking time off for pregnancy and working.

A story in Sunday’s Washington Post recited the saga of Kashawna Holmes, a coordinator of a senior companion care program at the University of the District of Columbia. Problem was when she became pregnant and her doctor put her on bed rest due to complications, her job at UDC disappeared. She’s filed a lawsuit in federal court over her termination.

Unfortunately, her experience is not an isolated one.

The Equal Employment Opportunity Commission received 5,217 pregnancy-related complaints in 2014. The story attributes the volume of complaints in part to the growing number of women in physical, low-wage fields, like waitressing and working in a warehouse–where pregnancy is regarded as incompatible with the job duties.

The EEOC earlier this year published guidance on employers’ legal requirement to accommodate women during their pregnancy just as it does other employees who are sick or disability leave.

That’s good if a woman needs an accommodation, but in Holmes case, she didn’t necessarily need an accommodation to fulfill her job responsibilities.

Under both local and federal law, a job like the one that Holmes has shouldn’t disappear when the incumbent gets pregnant.

If a non-pregnant disabled employee’s job would be there when he or she returns to work, the same should hold true for a female employee who is out on pregnancy leave.

Or, put this way by the website:

Must you keep the job of a pregnant employee open until she is ready to return to work following the birth of her child?

A. Generally, yes. Unless you are informed that she will not return to work, you must keep the job open on the same basis as jobs that are held open for employees on sick leave or disability leave for other reasons.


Report on FMLA Shines Light on Needs of Millennial Workers for Guaranteed Paid Leave

As part of its push for a nationwide paid parental leave program, the Center for American Progress is focusing on the needs of millennial workers, who it says the current unpaid leave under the Family and Medical Leave Act doesn’t address well enough.

In a just-issued report, CAP points out that while “the FMLA was an important first step toward creating more equitable work environments, it leaves out around 40 percent of the workforce and only guarantees unpaid leave, which many workers cannot afford to take. On its own, the FMLA fails to provide the resources that many families, especially Millennial families, need to be able to take time off without risking their economic stability.”

The FMLA’s shortcomings for millennials, according to the report (excerpts heavily quoted here), are:

  • The FMLA’s eligibility requirements exclude about 40 percent of the workforce and are especially difficult for young workers to fulfill. To be eligible for unpaid leave under the FMLA, workers must have at least 12 months of tenure with their employers, have worked at least 1,250 hours in the previous year, and work for an employer who employs at least 50 people within a 75-mile radius of the employee’s work site. These requirements eliminate many part-time and newer workers from eligibility—groups with a disproportionate number of young people. Contingent workers—including part-time workers and freelancers—were twice as likely as non-contingent workers to be younger than age 25 and less likely to be white than non-contingent workers, according to the last available U.S. Department of Labor data from 2005,
  • While employers can choose to offer their employees more comprehensive leave policies than the FMLA, only 13 percent of workers had access to paid family leave policies through their employer in 2014, and young parents are less likely than older parents to have access to paid leave
  •  For many Millennial workers struggling to make ends meet, unpaid leave is not an option, even for those who are eligible to take it without risking the loss of their job.

The full report is available here.

Earlier this year, I reported on another CAP report on how the experience of other countries with paid parental leave laws can inform U.S. policymakers.

Jury: Hawaii Condoned Harassment of Bomb Detection Canine Handler at Honolulu Airport

Rarely does an entire state government condone discrimination against an employee, but according to the U.S. Department of Justice that’s what the state of Hawaii did regarding the sexual harassment of a female former employee of the state’s Highway Department of Transportation’s Airports Division.

DOJ sued the state last year under Title VII of the 1964 Civil Rights Act on behalf of Sherry Valmoja, who it said was subjected to sexual harassment during her employment as an explosives detection canine handler at the Honolulu International Airport.

According to the DOJ, Valmoja was subjected to sexual harassment in the form of lewd and unwelcome comments and physical intimidation by a co-worker.  The unwelcome conduct and intimidation began as early as November 2008, when both Valmoja and her co-worker were employed by a private company that contracted with the defendants.  After both Valmoja and the co-worker became employed by the State of Hawaii, the harassment and intimidation continued, the lawsuit charged.

Despite timely complaints by Valmoja about her co-worker’s conduct, the defendants failed to take prompt and effective action to remedy the harassment, which continued until March 2011 and created an abusive and hostile working environment, DOJ said.

To compensate her for the pain and suffering she endured because of the harassment, the jury awarded Valmoja $38,000. Decisions about additional injunctive relief are still pending; the department has asked for a permanent injunction prohibiting the state of Hawaii from discriminating against its employees, review and revision of defendants’ sexual harassment policies and complaint procedures and training for its employees on discrimination.

Read more about the lawsuit and the jury’s findings.

EEOC Q/As Address Bias Against Muslims, Middle Easterners–or those Perceived to Be

Citing the Paris and San Bernadino attacks, the Equal Employment Opportunity Commission encouraged employers and employees to double down on their efforts to spot and prevent discrimination against individuals who are–or are perceived to be-Muslims or Middle Eastern.

To that end, the EEOC released two documents, in question-and-answer form, to help employers and employees, respectively, navigate these sometimes choppy waters that may raise issues of religion, race, and national origin.

One Q-A is addressed to employers.  Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern includes information about and examples of employer actions that may constitute discrimination on the basis of religion, race, or national origin. This technical assistance document also identifies steps employers can take to prevent and correct discrimination in the workplace.

The second Q-A is addressed to employees. Questions and Answers for Employees: Workplace Rights of Employees Who Are, or Are Perceived  to Be, Muslim or Middle Eastern explains federal protections against discrimination based on religion, race, or national origin in hiring, discharge, and other terms of employment. This technical assistance document also explains the prohibition against harassment and gives examples of religious accommodation in the workplace.

Here’s the EEOC’s announcement of the documents’ release, including a statement by EEOC Chair Jenny Yang on their significance.

$4 Million Pay Out Brings to Close Racial Harassment Suit Against Sara Lee Successor

As 2015 draws to a close, a shocking tale of alleged race discrimination at a Sara Lee plant in Paris, Texas is a reminder that we’ve a long way to go to improve race relations in the workplace.

The Equal Employment Opportunity Commission announced on Tuesday that Hillshire Brands Company, former known as the Sara Lee Corporation, agreed to pay $4 million to 74 African American former employees who endured a hostile work environment at the Paris, Texas plant.

According to the EEOC, these employees were subjected to racial graffiti on bathroom and locker room walls.

During work hours, the employees also were berated with racial slurs by managers and white co-workers, all the while management ignored the employees’ complaints about the harassment.

The misconduct continued at the facility until it closed in 2011, the EEOC charged.

Read more about the settlement.

Case of Harassment by Customer Is For Jury

When one of your customers stalks and harasses one of your employees, you could be just as liable under Title VII of the 1964 Civil Rights Act as if one of your employees was the wrongdoer.

Because warehouse retailer Costco allegedly didn’t do enough to prevent a customer from stalking and harassing one of its female employees, it will have to defend itself in court against the Equal Employment Opportunity Commission’s sexual harassment lawsuit, a federal district court judge in Illinois has ruled.

According to the EEOC, the court found evidence that the employee, who worked at the company’s Glenview, Illinois warehouse, was subjected to harassment by a customer for more than a year, including staring, unwanted physical touching, unwanted requests for dates and overly intrusive personal questions.

Despite being talked to by Costco’s managers and the Glenview police to avoid her, the customer interactions continued to escalate. Added together and considering the length of time over which the harassment occurred, they amounted to a hostile work environment, the court found.

Also, Costco didn’t act quickly or forcefully enough to stop the harassment, the court found.

Bottom line: A jury will have to determine whether there’s liability under Title VII or not.

Read more about the lawsuit.

EEOC: McDonald’s Denied Sign Language Interpreter for Deaf Applicant During Interview

The duty of reasonable accommodation under the Americans With Disabilities Act applies not only during employment but also during the job application process.

According to the Equal Employment Opportunity Commission, a McDonald’s restaurant in Belton, Missouri, violated that ADA requirement by denying a sign language interpreter for a deaf applicant who was interviewing for a job at the restaurant.

The EEOC is alleging that the restaurant manager cancelled the interview after learning that the applicant needed an interpreter, yet continued to interview other candidates for the same job, all the while the applicant had made several attempts to schedule an interview.

The EEOC filed its ADA lawsuit against McDonald’s Corp. and McDonald’s Restaurants of Missouri in the U.S. District Court for the Western District of Missouri.

Read more about the lawsuit here.


EEOC Recovers $5M for Indian Guest Workers Mistreated in Katrina, Rita Rebuilding Efforts

By many accounts, the rebuilding of the Gulf Shore following Hurricane Katrina in 2005 was a success, as storm-battered houses and businesses got back on their feet.

But the Katrina aftermath wasn’t so good for nearly 500 Indian guest workers, who were taken advantage of by Signal International, LLC, a Mobile, Ala. ship building and repair company, the Equal Employment Opportunity Commission alleged.

The EEOC said on Friday that Signal had agreed to pay $5 million to settle a race and national origin discrimination lawsuit.

According to the EEOC, Signal International recruited the workers from India through the federal H-2B guest worker program to work at its facilities in Texas and Mississippi in the aftermath of hurricanes Katrina and Rita.

EEOC alleged Signal subjected the men to a pattern or practice of race and national origin discrimination, including unfavorable working conditions and forcing the men to pay $1,050 a month to live in overcrowded, unsanitary, guarded camps. As many as 24 men were forced to live in containers the size of a double-wide trailer, while non-Indian workers were not required to live in these camps.

Read more about the lawsuit and settlement here.