EEOC: Employers, be Proactive vs. Workplace Harassment

Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

Uber Misclassification? Employee or Independent Contractor?

In July 2015, the Department of Labor issued guidelines regarding the “misclassification” of workers. It argued that any worker who is “economically dependent” on the employer should be considered an employee. A worker who is involved in a business independently however, on behalf of himself or herself should be regarded as an independent contractor. Multiple factors are considered in determining whether a worker is an employee or an independent contractor. This test is sometimes referred to as the “economic realities test.”

The classification of a worker as either an employee or independent contractor is significant for a company and its workers. The rationale behind such classification is that employees should be better protected and entitled to benefits as they are financially and professionally dependent on their employer. Independent contractors, however, are seen as having their own business and thus cannot claim several benefits from the business for which they are providing services including, but not limited to, minimum wage, overtime compensation, family and medical leave, unemployment insurance, and protections ensuring a safe workplace. As such, whether a business classifies its staff as employees or independent contractors will inevitably have major implications as it relates to overhead, payroll, profit margins, and taxes.

This classification again became newsworthy for Uber drivers when Uber, an on-demand car service, was confronted with the issue of whether its drivers should be considered independent contractors or employees. It is Uber’s longstanding practice of classifying its drivers as independent contractors rather than employees. Now the California Labor Commissioner, presented with this specific question, has opposed, in its interpretation of law, Uber’s basic and longstanding practice.

On September 16, 2014, an Uber driver named Barbara Ann Berwick filed a wage complaint with the California Labor Commissioner. Berwick sought, among other things, reimbursement for business expenses, such as gas and bridge tolls. Uber argued that since Berwick was not an employee, she could not be compensated for such expenses. In June 2015, the California Labor Commissioner argued in favor of the driver. It disagreed with Uber and awarded Berwick over $4,000 in business expenses and interest. In arriving at its decision, the Labor Commissioner applied the “economic realities” test adopted by the California Supreme Court in S. G. Borello& Sons, Inc. v. Department of Industrial Relations. Variations of this “economic realities” test are applied throughout the country, including New York. Based on this multifactor test, the Labor Commissioner held that Berwick was in fact an employee. Uber lost the case but has appealed the Commissioner’s decision.

            If you have questions regarding the classification of employees, independent contractors, and the implications of either classification, or need advice regarding labor and employment law, please call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan

Teacher Loses Employment Discrimination Case Against School District

What does employment discrimination mean and when is an individual entitled to bring a workplace discrimination claim? How does employment discrimination law apply to Education Law?

 Generally, under Federal and New York State Laws employment discrimination occurs when a person or a group of persons is treated unequally based on race, gender, age, disability, religion, national origin, marital status, sexual orientation, veteran status, and political affiliation or beliefs, which has a negative affect on that individual. Therefore, job discrimination is prohibited and several Federal Acts have been enacted to support this objective, such as:

  1. Title VII of the Civil Rights Act of 1964 (Title VII),
  2. Equal Pay Act of 1963 (EPA),
  3. Age Discrimination in Employment Act of 1967 (ADEA),
  4. Title I and Title V of the Americans with Disabilities Act of 1990 (ADA),
  5. Civil Rights Act of 1991,
  6. Sections 501 and 505 of the Rehabilitation Act of 1973, and
  7. Title II of the Genetic Information Non-discrimination Act of 2008 (GINA);

 In a recently issued verdict that was tried before the U. S. Eastern District of New York Court in Central Islip, a middle school employee lost a racial discrimination case against Malverne public school officials. A middle school mathematics teacher who was denied a promotion or reassignment initiated the suit. The teacher alleged the District discriminated against him due to his race. At the conclusion of the trial, an eight-member jury examined all the evidence and determined that the teacher had failed to establish the school district and/or its administrators had violated federal laws prohibiting discrimination. In reaching this conclusion, there are several requisite factors which must be considered. In light of these requirements, the federal jury unanimously came to the conclusion that the school’s decision in refusing to promote or reassign the teacher an additional class was not racially motivated and as a result there was no basis to grant the teacher damages.

 Where, however, a court finds that a person has been unlawfully discriminated at their workplace, the substantial remedies are available including, but not limited to, hiring, promotion, backpay, reinstatement, front pay, emotional distress damages, and reasonable accommodation.

 If you have questions or concerns regarding employment discrimination, or have any questions relating to workplace law, call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan, Esq.

Spanish Speaking Employees Bring Lawsuit Over English-only Rule At Work

Can an employer require its employees to speak only English at work? That question will be answered in a lawsuit brought against Delta Airlines by a group of Spanish speaking airplane cabin cleaners. The employees claim that a shift manager barred workers from speaking Spanish after a company, Gate Gourmet, took over the contract to clean Delta’s planes at Los Angeles International Airport. Most of the 14 employees speak little to no English but had been performing their jobs for years.

According to the national counsel for the Mexican American Legal and Educational Fund which is representing the plaintiffs, “They’re essentially muted. They’ve got to walk around with their mouth shut. So it is humiliating and denigrating, and it makes it harder for them to do their job.” Gate Gourmet said that the comppany does not have an English-only rule. Under California law, employers can require employees to speak English only if there is a legitimate business reason.

The court complaint alleges that employees must rapidly clean airplane cabins and restock supplies before passengers board the planes. They communicate over radio regarding when and where they need to go. The employer did not warn employees what penalty would be imposed if they violated the language rule. The company may have difficulty in defending the case as it appears that the shift policy is only applied to workers on the evening shift. Morning and night crews continue to speak in Spanish, according to the complaint.

The employees assert that they complained to the human resources department but received no answer. The action seeks to require Gate Gourmet to withdraw the rule and pay damages and attorneys’ fees.

If you have any issues with a claim, potential claim, or questions regarding the issues raised by this lawsuit or other workplace policies, please calll the Gilbert Law Group at 631.630.0100.

 

 

Arbitrator Holds Employer MLB Did Not Have Right To Suspend Josh Hamilton For Violating Employer’s Substance Abuse Policy

             In a stunning decision laid down on April 3, 2015, an independent arbitrator ruled that baseball athlete Josh Hamilton, an outfielder for the Los Angeles Angels, would not be suspended for self-reporting a drug relapse on February 25. Major Leave Baseball as a substantive substance abuse policy in its Collective Bargaining Agreement and the slugger’s contract had specific language not permitting him to drink alcohol or ingest drugs. The decision shocked Hamilton’s employer, perhaps because he had already been in a sports treatment program due to a history of drug and alcohol issues. Instead of being suspended, Hamilton will be eligible to play and will be able to collect $23 million as part of his salary with the Angels. The matter was submitted to an independent arbitrator after a treatment board created by Major League Baseball’s joint drug program could not determine whether Hamilton’s actions were a violation of his treatment program. The arbitrator did not give any reasons for finding in favor of Hamilton.

            Major League Baseball, the party advocating for his suspension, expressed disappointment with the arbitrator’s decision and in a statement said it would “seek to address deficiencies in the manner in which drugs of abuse are addressed under the program in the collective-bargaining process.” The current collective bargaining agreement is in place until after the 2016 baseball season.

            Employers who find themselves in a similar situation to that of the Los Angeles Angels should consult an attorney for counsel as to their collective-bargaining agreements contain controlling language when matters are left to independent arbitrators.

Employers Be On Alert: Employment Retaliation Claims Are At an All-Time High

Employers be on alert: employment retaliation claims are at an all-time high.

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in the past year reached the lowest level since 2007, based on published statistics from the EEOC. Retaliation charges, on the other hand, are at their highest percentage ever of claims filed ever.

The EEOC’s Strategic Enforcement Plan for fiscal years 2013-2016 lists retaliation issues as one of six areas of priority for the agency. The EEOC describes this priority as “targeting policies and practices which discourage or prohibit individuals from exercising their rights under the employment discrimination statutes or that impede EEOC’s enforcement efforts.”

The 2014 statistics, and the priority placed on EEOC retaliation enforcement, are a significant reminder that employers should take the necessary steps to minimize the chance of a retaliation claim even when the underlying discrimination claim is not meritorious. Employers should make sure to consult a knowledgeable employment attorney to ensure their employment policies are up to date. Where there is an active discrimination claim against an employer, there are many acts which if taken, could constitute retaliation. In such circumstances, is important that the that an employer seek counsel before taking action.

New Law Regarding Franchise Joint Employer Liability

The Office of the General Counsel of the National Labor Relations Board (NLRB) recently issued 13 complaints against McDonald’s franchisees as well as their franchisor, McDonald’s USA, LLC alleging various labor law violations.  The complaints follow the NLRB General Counsel’s announcement in July 2014 that McDonald’s USA may be held to be liable as a “joint employer” for unfair labor practices committed by its individual franchisees. This represents a departure from a long-standing precedent regarding franchise joint employer liability.

The 13 complaints allege that the individual franchises violated their employees’ right to engage in protect concerted activity. In other words, they took actions against them for engaging in activities aimed at improving their wages and other terms and conditions of their employment. This includes participating in nationwide fast food worker protests during the past two years. If successful, this would mean that under certain circumstances, a franchisor can be held liable for any unfair labor practices perpetrated by any of its franchisees. Such a precedent would have have a significant impact on franchise joint employer liability.

The NLRB posted on its website a “McDonald’s Fact Sheet” in which it  claims McDonald’s USA “through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees” sufficient to share liability for its franchisees’ violations of the National Labor Relations Act.

The results of these complaints will not be determined for some time. Franchisors should take note, however, there are steps a franchisor can take to mitigate its risk of being declared a joint employer of its franchisees’ employees under the current law, as well as potentially under any new law.  These steps will also lessen the risk of a finding of common law vicarious liability for a franchisee’s employment practices in most states.

For more information regarding franchising and/or ways to avoid being declared a joint employer and therefore avoid liability for a franchisees’ employment issues call Gilbert Law Group today. 631-630-0100.

An Epic Heist: Nike Trade Secrets and Breach of Non-Compete

Nike has sued three former employees who left to work for Adidas. The company is suing for breach of contract, theft of trade secrets, fraud, conspiracy and more. In the Complaint, Nike details fairly shocking allegations against the defendants who launched a plot to leave the Company, steal numerous Nike plans and products and then parlay that into lucrative new careers at Adidas.

The three employees all have a relatively long tenure at Nike. Two of the defendants have worked at Nike for 9 years. The remaining defendant has worked there for 6. Their collective experience covers soccer, football, basketball, cross-training, women’s apparel, running. All three of them climbed the corporate ladder. It is unsurprising that the defendants signed agreements that contained non-compete and non-disclosure provisions. Those provisions themselves were quite reasonable: a one-year non-compete, a one-year non-solicitation and a two-year non-disclosure.

During their years at Nike, all three of these individuals exemplified a great deal of talent and intellect—which explains them reaching such high-level positions within such a major corporation. But greed and arrogance can quickly cancel out other positive qualities like talent and intellect. In April 2014, the defendants began executing the plan for their departure from Nike.

Noteworthy is the fact that defendants launched this plan while still working for Nike. In May 2014, after one of the defendants had a visa issue, Nike paid more than $50,000 to relocate him and his family to Italy, on the understanding that one of the defendants would remain employed with the Company long-term. Upon securing Nike’s commitment to fund his relocation to Italy, the defendants allegedly discussed how the move to Italy would serve their scheme well because Italy was one of those “countries where [Nike’s] non-compete is difficult to enforce.”

While still at Nike, the defendants signed lucrative deals with Adidas. Shortly after resigning from Nike, the defendants began a sloppy attempt to steal as much Nike information as possible and then destroy any evidence.  One defendant copied all of his laptop’s contents onto an external hard drive, then damaged the laptop to a point he thought would render it inoperable and shipped it back to Nike. The defendant sent an email to his personal email address containing a zip file with design drawings for an unreleased shoe tied to a prominent, Nike-sponsored athlete. Unlike in most such instances, where the plaintiff offers vague assertions about confidential information and trade secrets, the materials at issue in this case are certainly confidential and  trade secrets. Between their collective efforts, the Defendants walked away from Nike with a treasure trove of information, including:

  • High-level strategic development plans for the next 3 to 4 years. These plans included proposed and prospective product offerings and the timing of releases.
  • Unreleased product design materials for the next 2 to 3 years. This included models, sketches and designs for soccer footwear and other soccer related products (e.g. team uniforms). These design plans included very detailed information on fabrics, cuts, colors, manufacturing and more.
  • Financial data including both a historical breakdown of all Nike footwear sales by product for the past year and a forward looking projection of growth my product for the next twelve to eighteen months.
  • Documents regarding Nike’s product marketing strategies including documents on product promotions, in-store presentations, pr campaigns, product launches, plans for specific sponsored athletes and plans for specific Nike-sponsored sports teams.

Nike is suing the defendants for every claim imaginable, and rightfully so. Turns out, Nike was, rather obviously, able to retain enough electronically stored data to present a very compelling Complaint. In many cases, especially many non-compete and trade secret cases, there is another side to the story. In many cases, the Complaint talks vaguely about wrongful conduct, confidential information and trade secrets, but never really gives specifics. Here, Nike’s complaint is filled with specific, credible and highly damaging allegations. There is unlikely to be anything the Defendants can say that would mitigate their liabilities.

Pregnancy Discrimination Takes Center Stage at Supreme Court

The Supreme Court will decide whether UPS violated the Pregnancy Discrimination Act (PDA) when it refused to provide a temporary light duty assignment to Peggy Young when she was pregnant 7 years ago before giving birth to her daughter, Triniti. The assignment would have allowed Young to work but avoid lifting heavy packages, as her physician had ordered. The issue is whether UPS violated the law by its policy of providing temporary light duty only to employees who had on-the-job injuries, were disabled under the Americans with Disabilities Act, or lost their federal driver certification.

It is well-settled that drawing a distinction between pregnant and nonpregnant employees in the workplace is generally unlawful, unless there is a legitimate business reason to justify the distinction. In 1978, Congress passed the PDA in response to the Supreme Court ruling that workplace rules that excluded pregnant workers from disability benefits and insurance coverage were not sex discrimination under Title VII of the Civil Rights Act of 1964. In this case UPS argues that unless Young can show that it intentionally discriminated against her, she has no case. Young contends that UPS “told me basically to go home and come back when I was no longer pregnant.” Young is now 42 and it has taken 7 years to get before the Court.

The Obama administration and 120 Democrats in Congress have submitted a brief supporting Young’s position. Moreover, the EEOC has updated guidance to employers to clarify that they should accommodate workers like Young. Likewise, UPS has since changed its policy so that pregnant employees are eligible for the light duty assignment.

Nonetheless, the Court’s decision is expected to have far-reaching impact in workforces across the nation as 75% of women entering the workforce today will become pregnant at least once while employed, and many will be forced to work throughout their pregnancies, or face possible termination during their pregnancies or upon their return. Stay tuned for the decision.

For workplace issues, such as pregnancy, sex discrimination, light duty or leave policies, contact the Gilbert Law Group at 631.630.0100.

Offensive, Discriminatory Costumes At Work: From the Racist to the Racy

Halloween is a good time for children and adults alike. But what the holiday represents to children can be far different than what adults look forward to come the end of October. Typically, adults perceive Halloween as an opportunity to get creative with their costumes while taking advantage of the fact that it is easier to get away with wearing an outfit which may not be considered appropriate at any other time of year. In one’s free time and in the company of their friends and family, surely this mindset should not be a problem, most of the time. Frequently however, employees attending Halloween parties at the office or at a work function take it too far by wearing costumes which could easily offend a co-worker. In doing so, one can open themselves or their employers up to liability for harassment and discrimination and and can be disciplined or terminated.

Costumes which should not be worn to work include those that are overly violent, gruesome, controversial, insensitive or grotesque. Some examples include bloody zombies, terrorists, police brutality victims, ebola patients, etc.

Other categories of costumes which will not be tolerated in the office or at a work event range from the racist to the racy. Obviously, if you dress as a nazi or kkk clan member, and the employer allows it, that can be considered blatant and willful discrimination based on race, color, national origin, etc. Likewise, inappropriate, sexually lewd or explicit costumes will lead to allegations of sexual harassment.

Another issue to consider is those employees who may be religious. If employees dress as the anti-christ, or a character from the Book of Mormon, it may lead to some claiming discrimination based on religion.

From an employer’s point of view, one need not be the costume police. An employer does not have to give a list of costumes which will not be tolerated. If you are going to have an event, tell employees that they are to use proper judgment and common sense; that any costumes deemed to be offensive or inappropriate, will lead to a supervisor inevitably telling the employee to change. It is always helpful to encourage employees to ask questions in advance. If there is an HR Department, it may be a good idea for them to speak to an HR rep before they show up in a hazmat suit, as not everyone will find that to be funny or appropriate. It is also important that employers have a policy as it relates to social media. Posting photos of Halloween costumes at work can lead to a negative perception of the company among other unintended legal consequences.

For questions or concerns relating to discrimination, sexual harassment, other workplace, or labor and employment issues, call Gilbert Law Group: (631)630-0100.