Lev Craig

Last Friday, the parties submitted a settlement agreement for approval in Cote v. Walmart, a class action suit filed in federal court alleging that Walmart discriminated against gay Walmart employees by denying spousal health insurance coverage to same-sex married couples. The settlement would provide $7.5 million for current and former Walmart employees who could not obtain employer health insurance benefits for their same-sex spouse.

The suit was the first class action filed on behalf of gay employees after the Supreme Court’s June 2015 ruling extending marriage equality in Obergefell v. Hodges, according to the Boston-based LGBT legal advocacy group GLAD. Jackie Cote filed suit in the District of Massachusetts in July 2015, bringing claims against Walmart under Title VII of the Civil Rights Act of 1964 (Title VII) and the Massachusetts Fair Employment Practices Law on behalf of Walmart employees who were married to a same-sex spouse and did not receive spousal health insurance benefits from Walmart between 2011 and 2013.

Edgar M. Rivera

As reported by Reuters, Democratic New York State Assemblyman Joseph Morelle has proposed introducing legislation that would allow workers at gig-economy companies to opt into a company-funded portable benefits program. Gig-economy companies use independent contractors to provide rides (like Uber and Lyft), deliveries (like UberEats), housecleaning (like Handy), and other services through websites and apps. They claim not to employ their workers but instead hire independent contractors to provide their customers services. However, independent contractors generally do not receive basic employment benefits, including health insurance, and as more workers join the gig economy, more are forced to secure health insurance elsewhere or go without. Assemblyman Morelle said that he plans to introduce the legislation early next year; it would be the first bill of its kind in the United States.

Perhaps anticipating the sting of impending legislation, Handy, a web-based home cleaning services company, has circulated a draft bill that would establish guidelines for a portable benefits plan for New York workers at gig-economy companies.  Its draft bill establishes a program whereby participating gig-economy companies would pay the equivalent of 2.5% of workers’ income into individual health savings accounts. Handy’s cleaners in New York earn approximately $20 an hour and work, on average, 10 hours a week. A 2.5% health stipend deposited into an individual account would amount to about $800 a year for a Handy worker earning $33,000—less than one third of the cost of an individual silver plan on the New York State health insurance market, according to the Kaiser Family Foundation.  n return, workers who enter into the program accept their classification as nonemployees, which proscribes them from suing for benefits like overtime pay, joining unions to collectively bargain for better benefits, and receiving mandatory employer payroll contributions, like Social Security and Medicare.

Shelby Krzastek

On November 23, 2016, a jury returned a verdict for the plaintiffs in Ridgeway v. Wal-Mart Stores, Inc., finding that the retail giant Wal-Mart owed approximately 850 former Wal-Mart truck drivers back pay for hours worked for which they had not been compensated. These hours included time spent on pre- and post-trip inspections, 10-minute rest breaks, and mandatory 10-hour layovers. The jury awarded the drivers $55 million, with the bulk of the award earmarked for Wal-Mart’s failure to pay drivers the minimum wage for the aforementioned mandatory layovers.

The Ridgeway decision came out of the Northern District of California, where the case was approved for class certification and ultimately tried. Plaintiffs claimed that Wal-Mart failed to pay its truck drivers the minimum wage and failed to pay them for all work done. The drivers alleged that Wal-Mart’s compensation scheme, which paid drivers based on activities performed rather than hours worked, meant that drivers were not paid the minimum wage for all hours worked. The payment structure calculated wages for drivers based on mileage, activity pay, and non-activity pay; “activity pay” refers to pay for regular compensable job duties, and “non-activity pay” to pay for events at Wal-Mart dispatch and home offices, as well as unplanned events.

Edgar M. Rivera, Esq.

Arbitration agreements between employees and employers often strongly favor the employer’s interests at the employee’s expense. As a result, an unsuccessful opposition to a motion to compel arbitration can be disastrous to a plaintiff’s case. Although a commercial case, the Tenth Circuit’s recent decision in Ragab v. Howard is relevant for plaintiffs and may help defeat a motion to compel arbitration.

In Ragab, the Tenth Circuit affirmed the District Court of Colorado’s denial of Ultegra Financial, its CEO Muhammad Howard, and Clive Funding, Inc.’s motion to compel arbitration.  There were six agreements between plaintiff Sami Ragab and defendants Ultegra and Clive Funding relevant to Ragab’s claims. The agreements contained clear but conflicting arbitration provisions, including conflicts regarding the essential terms of any arbitration, like which rules would govern and how the parties would select the arbitrator. The Circuit Court found that these conflicts between essential terms demonstrated that the parties did not have a meeting of the minds and, therefore, there was no actual agreement to arbitrate.

Lev Craig

Last week, a Texas federal district court granted a temporary injunction in State of Nevada v. U.S. Department of Labor, blocking the implementation of a new Department of Labor (DOL) overtime regulation that was previously scheduled to go into effect today, December 1, 2016.

The new regulation was developed in response to a 2014 directive from President Obama to the Secretary of Labor, instructing the DOL to revise federal regulations for executive, administrative, and professional overtime exemptions, aiming to ensure that the salary threshold for these exemptions—i.e., the minimum annual salary an employee must make before they could possibly be considered “exempt” from overtime requirements—more accurately reflected current income distribution.

Owen H. Laird, Esq.

Protesters across the United States engaged in coordinated demonstrations yesterday, demanding an increase in the minimum wage to $15 an hour. Activists took to the streets in New York City, Los Angeles, Boston, Chicago, and many other U.S. cities on the four-year anniversary of the launch of the “Fight for 15” campaign, initially begun by the Service Employees International Union in 2012.

The efforts of the Fight for 15 movement have resulted in increases in the minimum wage in various municipalities for some workers. For example, in New York, where the Fight for 15 campaign began, the New York Department of Labor has implemented a series of annual increases to raise the minimum wage. These increases mean that fast food workers in New York City will earn a minimum wage of $15 an hour by 2019, and fast food workers across New York State will earn $15 an hour by 2021.

Lev Craig

In Moebius v. TharpeRobbins Co., Matthew Moebius brought wrongful termination and disability discrimination claims against his former employer, TharpeRobbins, under the Americans with Disabilities Act (ADA) and Massachusetts state law, alleging that TharpeRobbins had discriminated against him because of his severe depression. The U.S. District Court for the District of Massachusetts recently denied TharpeRobbins’ motion for summary judgment. In its November 1, 2016 order, the court found that triable questions remained as to whether Moebius’s depression substantially limited a major life activity, whether TharpeRobbins had failed to provide Moebius with a reasonable accommodation, whether Moebius had been terminated because of his disability, and whether TharpeRobbins’ proffered legitimate, non-discriminatory reasons for Moebius’s termination were pretextual.

For over seven years, Moebius worked as a senior network engineer for TharpeRobbins, which develops and provides software programs designed to measure and reward employee performance. In late 2013, Moebius began experiencing symptoms of severe depression related to his recent divorce. Moebius alleges that, around this time, he began using more paid time off due to his depression and asked on two occasions if he could work from home as an accommodation. However, Moebius’s supervisor prohibited him from doing so and required him to be physically present in the office to manage other employees and maintain servers. Moebius’s attendance began to grow worse, and in September 2014, he was terminated, purportedly for unsatisfactory performance.

Shelby Krzastek

On September 7, 2016, the New York State Department of Labor (“NYDOL”) enacted a regulation setting the conditions by which employers in New York State can pay wages to their employees. The final regulation details the four permissible methods for paying employee wages—cash, check, direct deposit, and payroll debit cards—and outlines the strict notice and consent requirements for paying wages by direct deposit or payroll debit cards. The regulation addressing payroll debit cards are especially important, as this payment method has until now been less regulated than more traditional payment methods, like cash and check. The regulation will be implemented March 7, 2017, and incorporates most of the provisions that the NYDOL initially proposed on June 5, 2016.

The regulation requires an employee to provide “consent” to receive wages by direct deposit or payroll debit card, prohibits employers from taking adverse employment actions against employees who decline to accept wage payments by direct deposit or payroll debit card, mandates that employers provide notice to employees naming other available ways of paying wages, and applies many conditions that limit an employer’s ability to pay employees’ wages by payroll debit card.

Edgar M. Rivera, Esq.

On November 4, 2016, the Western District of Pennsylvania—joining the Middle District of Alaska, District of the District of Columbia, District of Oregon, and Central District of California—held that a gay person has standing to bring a sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). In EEOC v. Scott Medical Health Center, the Complainant, Dale Baxley, alleges that his supervisor, Robert McClendon, Scott Medical Health Center’s telemarketing manager, subjected him to a hostile work environment because he is a gay man. After Scott Medical Health Center’s president and chief executive officer allegedly ignored his complaint about the discrimination and harassment, Mr. Baxley quit.

In the complaint, Mr. Baxley alleges that Mr. McClendon called him a “fag,” “faggot,” “fucking faggot,” and “queer,” and, after learning that Mr. Baxley had a male partner, made statements such as “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” The Equal Employment Opportunity Commission (EEOC) argued that Title VII covered this type of harassment as, had it not been but for Mr. Baxley’s sex, he would not have been subjected to this harassment. The court agreed, stating that Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation.

Shelby Krzastek

On October 27, 2016, Blythe Asher, former Senior Vice President of Talent Development and Casting at E! Entertainment Television, Inc. (E!) and NBC Universal (NBC), brought a wrongful termination suit against her former employer, alleging that E! had discriminated against her because of her age and disability. Asher began working at E! in 2009, where she oversaw casting, talent development, and talent management for the E! network, eventually working her way up to Senior Vice President in July 2013. Although Asher was never in front of the camera herself, her position demanded substantial personal interaction with numerous celebrities, directors, producers, and industry executives.

In summer 2014, Asher was diagnosed with breast cancer and underwent surgery, chemotherapy, and radiation treatments. Asher continued to conduct business and oversee her department via telephone and e-mail throughout her cancer treatment, even on the morning of her surgery and from her hospital bed during her recovery.