September 19, 2014

Good for Plaintiff, but Probably an Aberration: Fifth Circuit Reverses Summary Judgment in Case of Religious Discrimination by Employer

On August 26, 2014, the Fifth Circuit Court of Appeals reversed a grant of summary judgment by the Houston, TX District Court in the case Lois M Davis v. Fort Bend County. The District Court had dismissed both of the plaintiff's claims. The dismissal of the second claim, retaliation for a complaint of sexual harassment, was affirmed by the appeals court, but the first claim of religious discrimination was reversed.

In her complaint, plaintiff Davis alleges that her employment as an IT Technician for Fort Bend County for two unlawful reasons: first, in retaliation for bringing a sexual harassment complaint against her supervisor to human resources, and eventually the Texas Workforce Commission Civil Rights Division (TWCCD); second, as punishment for being unwilling to work, setting up computers and such, on the specific day that her office was being relocated to a different building. Her reason for being unwilling to work that day was that she had previously committed to attend a "community service event" for her church, at which she was a an avid and active member, on that specific Sunday.

She argues that, because attending this event was part of her religious practice, and because she was terminated for being unavailable for work on that day, her employer discriminated against her on the basis of her religion. The District Court found that the plaintiff failed to state a prima facie case for religious discrimination, for two reasons: (i) "being an avid and active member of a church does not elevate every activity associated with that church into a legally protectable religious practice;" and in this case the plaintiff's absence from work was "due to personal commitment, not religious conviction," and (ii) Fort Bend County's "undue hardship" argument--that the absence of any one employee would have required the other employees to assume a disproportionate workload, that for this reason none could be permitted to miss work that day, and that there was therefore a sufficient non-discriminatory reason for her termination.

The Appeals Court majority rejected both of these reasons. As to (i), they noted that the question of whether a certain activity constitutes part of a person's religious practice "in his own scheme of things" depends on whether it is that person's "sincere and meaningful belief." But whether a belief is central to the person's religion, i.e. whether the belief is a true religious tenet, is "not open to question." Thus, the Court seems to conclude, the relevant question is whether attending the event in question was part of the plaintiff's religious practice, believes it was, and the Court has no choice but to defer to that belief. Thus, she was terminated for practicing her religion.

As to (ii), the Appeals Court noted that the District Court had ignored a key fact: that one of Davis's co-workers had offered to fill in for her, which would have stopped her absence from causing any hardship at all. Because her supervisor chose not to allow this other person to fill in, any hardship caused by her absence was due to his decision not to allow her to attend the church event.

Thus, they concluded, the District Court's decision was in error; the plaintiff's case is viable and raises genuine issues of fact.

But this is one of those cases wherein the dissenting judge makes a stronger argument than the majority. First, perhaps Davis believed that attending the church event was part of her religious practice, and perhaps she believed this sincerely, but that is not really the issue. In fact, there are two separate questions here: first, did she sincerely believe her religion, and second, was the event in fact part of her religious practice? The question is not whether the person's affirmative answer to the second question is sincere; that is a factual question that a court can decide. And this makes sense: we do not want people to be able to create a discrimination claim simply by thinking up religious reasons for the things they want to do. Courts have indeed held that there must be some objectivity to this question, then, and Judge Smith in his dissent points out that "no circuit has held has held--in a published or unpublished opinion--as the majority does today."

We vigorously argue against religious discrimination in the workplace, of course, but in order to do this we must have standards for deciding which activities do or do not constitute religious practices.

If you believe you have been the subject of religious discrimination by your employer, please contact The Harman Firm, PC.

September 16, 2014

Repeating Our Mistakes: Paycheck Fairness Act Fails in Senate for Fourth Time

For largely political reasons, Democrats in the U.S. Senate introduced S. 2199, the Paycheck Fairness Act, for a vote, and for largely political reasons Senate Republicans decided not to filibuster before voting unanimously against it. Little has changed.

The opposition's arguments on this issue are feeble, as explained in our May 23, 2014 blog. This time the arguments were the same, except that John McCain and others complained that the introduction of the bill at this stage of an election cycle was political opportunism rather than a real attempt to make policy.

It is surely true that Democrats are using the failure of this bill in their campaigns to increase their already-substantial advantage among women voters. This fact is clearly understood on both sides: for example, Nebraska Senator Deb Fischer said "It's a one-sided vote for political reasons, so (Democrats) can use it in campaigns."

It is also true, as opponents of the bill point out, that many attorneys support the legislation. In some cases there are self-interested reasons in play, but there have also been principled defenses of the principles behind the law. For example, Thomas M. Susman, Director of the Governmental Affairs office of the American Bar Association, penned a template letter for people to send to their senators, in which he concisely rebuts several common arguments against the bill.

The kernel of the argument for the law--which has not been refuted because it is simply true--is that women are often paid less than their male counterparts because they are told that their employer can and will fire them if they so much as ask a question about pay equity in their workplace. Women, and in general those who favor pay equity, are threatened into silence. This situation is wrong, the Paycheck Fairness Act would change it.

It is not a political stunt, at least not more of a political stunt than opposing it just because one doesn't want to see the President accomplish something. It does not pose an economic threat, at least not more of an economic threat than continuing to failing to incentivize women's work in the market.

The Paycheck Fairness Act is the real solution to a real problem. Hopefully it is only a matter of time before we come to our collective senses, overcome the forces of reaction and delay, and pass this important--and aptly named--piece of legislation.

September 15, 2014

Judge for Southern District of New York Dismisses Equal Pay Case, Second Circuit Vacates and Remands

On February 13, 2014, the Second Circuit Court of Appeals reversed a New York federal court's dismissal of Mary Ellen Chepak's complaint in Chepak v. Metropolitan Hospital. Plaintiff Chepak alleged that she interviewed for a position that had been occupied by males, and was told that she would be doing the exact same work that her predecessors had been doing.

When she was hired, the plaintiff was told that her position title would be civil service Social Work Level I, and that the position came with a barely-negotiable salary of $44,123.

After she had been hired to this position, Ms. Chepak discovered that her male predecessors, who had indeed done the exact same work as she had been doing, had been given the higher title of "Coordinating Manager," which came with a negotiable salary. This allowed the males doing her job to earn about $35 per hour, about 1/3 more than she earned, despite having less education and experience than she. She complained to the Hospital's in-house EEOC representative, and nothing happened. She complained to the Director of Social Work about her unequal pay, and the financial problems it created for her family, and again nothing was done.

Eventually she sued the hospital, alleging that they had discriminated against her based on her sex in violation of the Equal Pay Act (EPA), Title VII, and New York Human Rights Law. The district court dismissed her claim.

The appeals court first points out that the bar is very low for plaintiffs, and particularly pro se plaintiffs like Chepak, at the pleading stage. A plaintiff need not allege facts sufficient to establish a prima facie case of discrimination, and she need to allege facts sufficient to defeat summary judgment; she need only bring factual allegations sufficient 'to raise a right to relief above the speculative level." The appeals court found that the district court erred when it concluded that the plaintiff had failed to state an actionable claim.

One conclusion by the appeals court is especially important. The District Court had found that Chepak was not being paid less for doing the same work as male employees, because those male employees had had different job titles and slightly different job descriptions. But the appeals court found that this was clearly an error by the district court, because the latter had "dismissed Chepak's EPA and Title VII discrimination claims the job descriptions submitted by Metropolitan Health," but "the job content and not job title or description is the standard for determining whether there was a violation of the anti-discrimination laws."

In short, the defendant argued that there could be no viable claim of gender discrimination by Chepak, because the company had given her slightly different job titles and descriptions than comparable male employees. But the appeals court insisted that the case be decided based on substance rather than semantics. After all, the relevant questions in a case like this aren't about job titles or descriptions, or how the company officially classifies or characterizes the job. The issue is whether someone gets paid less and actually doing essentially the same work because they belong to a protected group.

If you believe an employer has discriminated against you based on your sex, please contact The Harman Firm, PC.

September 12, 2014

Legal Medical Pot + Drug Testing at Work = Legal Disaster

The current regime of laws about marijuana has started to generate new hard cases: those involving employers who take adverse action against their employees for using marijuana to treat severe medical conditions where medical marijuana has become legal under the laws of several states. Many people are now in a seemingly indeterminate legal situation--under state law they can legally use marijuana, but under federal law their employers are free to test them for marijuana and punish them for having used it.

This conflict within the law is real. In states that have legalized medical marijuana, most companies continue to maintain strict anti-drug policies and subject employees to drug testing. Most of the new state laws legalizing medical marijuana have been silent on these questions, in effect allowing employers to punish employees, or refuse to hire them, for legal behavior that is unrelated to their jobs.

One prominent case shows how courts have typically reasoned about these issues. In Casias v. Wal-Mart Stores, Inc., et al., the Federal Court for the Western District of Michigan ruled that, contrary to the Plaintiff's claim, the relevant state law, the Michigan Medical Marihuana Act ("MMMA") "addresses potential adverse action by the state; it does not regulate private employment. Accordingly, his claims must be dismissed." "Under Plaintiff's theory," the Court states, "no private employer in Michigan could take any action against an employee based on an employee's use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan."

Other courts have reasoned in much the same way. For example, a Colorado Court of Appeals in Beinor v. Industrial Claim Appeals Office concluded that (1) the medical use of marijuana by an employee holding a registry identification card under state constitutional medical marijuana amendment does not constitute the use of "medically prescribed controlled substances" under statute governing disqualification from unemployment compensation benefits; (2) medical marijuana amendment does not give medical marijuana users the unfettered right to violate employers' policies and practices regarding use of controlled substances; (3) use of medical marijuana was prohibited under employer's zero-tolerance drug policy prohibiting "illegal drugs"; and (4) evidence supported finding that employee violated employer's zero-tolerance drug policy.

On June 18, 2014, a Physician Assistant in Albuquerque, NM sued her former employer, Presbyterian Healthcare Services ("Presbyterian"), for violating the New Mexico Human Rights Act by firing her for using physician-prescribed marijuana and thereby failing to accommodate her medical condition. The Plaintiff in that case is a veteran who was diagnosed with post-traumatic stress disorder (PTSD) resulting from a sexual assault, and had been prescribed marijuana as part of her treatment. Asked about the case, representatives of Presbyterian have affirmed the company's commitment to maintaining a "drug free workplace." Based on recently-developed precedent, I think we know how this case is likely to end up.

New York's medical marijuana law defines all legal marijuana users as disabled, and thus entitled to certain protections from their employers, but how much protection this will actually provide to workers is far from clear. As in other states, New York's policy will be worked out through a costly, painful, and avoidable process.

Inconsistency and indeterminacy are the enemies of a legal system like ours. We should fix this problem at the federal level.

If you believe your employer has discriminated against you because of a disability or medical condition please contact The Harman Firm, PC.

September 10, 2014

Plaintiff in Disability Discrimination Case Against Cornell University Defeats Second Summary Judgment Motion

On March 21, 2014, the Federal Court for the Northern District of New York denied the defendant's motion for summary judgment in the case Zavala v. Cornell University.

Plaintiff Jose A. Zavala alleges that while employed by Cornell University he was subject to discrimination because of his disability. Zavala worked as a network technician at Cornell, one of the core members of the department known as the "backbone team." After suffering from type I Diabetes with complications for years, in October 2009 he was treated for swelling in his foot and was diagnosed with early-stage kidney failure. At that time Zavala asked his supervisor Jeremy Butler ("Butler") to reduce the amount of walking he would have to do at work. Instead, Butler assigned him to different tasks that required more walking.

On his next performance evaluation, the Butler told Mr. Zavala that he had been downgraded because he had missed time for medical appointments, which slowed the work of his team. When he refused to sign the evaluation Director of Operations Sasja Juijts ("Huijts") threatened him and demanded that he do so. Zavala then applied for and was granted a three-week leave to address his and his wife's health conditions.

When he returned from leave, Juijts was moved to a customer service position, and his tools and company vehicle were not returned to him. Asking to return to his previous position, Zavala gave Juijts a fit-for-duty letter from a nurse who had treated him, which Juijts rejected. Plaintiff then requested a meeting with human resources manager Mittman, who ignored his complaints and then disclosed information from the meeting in violation of company policy. Mittman advised him to speak to a different representative from human resources if he still believed his transfer to customer service was discriminatory, which he did. He was then offered his original position, under the supervision of Juijts and Butler, which he refused.

"To establish a prima facie case of disparate treatment under the ADA," the Court noted, "a plaintiff must show that (1) her employer is subject to the ADA, (2) she was disabled within the meaning of the ADA; (3) she was otherwise qualified to perform essential functions of the job, with or without reasonable accommodation; and (4) she suffered adverse employment action because of his disability." The Defendant's arguments in support of its motion are all attempts to show that Plaintiff has failed to meet condition (4)--that is, he has failed to allege any adverse employment action by Cornell.

The Court thoroughly rejects these arguments. Assuming the Plaintiff's narrative of the relevant events were true, Cornell would have taken several adverse actions against Zevala. They demoted him to a position with significantly different responsibilities, in this case doing far less interesting work than he had done as a member of the "backbone team." They also withheld his equipment, took his company vehicle so that he had to arrange rides with coworkers, required him to do more walking despite knowing about his requests for accommodation, and gave him a negative performance review that probably led to his demotion to a lower position that offered less complex work and fewer opportunities for overtime. And by taking these actions, Juijts and Butler might well have created a hostile work environment.

Defendant argues that because Zavala turned down his old job when it was offered, his reassignment cannot have been an adverse action. Rejecting this argument, the Court writes: "That Plaintiff declined an offer to return to the Backbone team does not alter the fact that, at least for some time, he was reassigned without the right to return to his former position." In short, the Plaintiff was subject to several adverse actions, and a viable claim of disability discrimination.

If you believe your employer has discriminated against you because of a disability, a medical condition, or a request for medically-required leave, please contact The Harman Firm, PC.

September 8, 2014

Court Denies Defendant's Appeal, Affirms Class Certification for About 800 Allstate Claims Adjusters Trying to Recover Unpaid Overtime

One Sept. 3, 2014, the 9th Circuit Court of Appeals considered and rejected Defendant Allstate Insurance Company's appeal of a California district court's grant of class certification to hundreds of Claims Adjustors, who allege that the company had a practice of requiring them to work unpaid overtime.

Before 2005, Allstate's claims adjustors in California had been paid annual salaries and treated as exempt from the Fair Labor Standards Act's overtime requirements. Then all were converted to hourly employees. They continued to work about the same number of hours as before, but more than 40 per week, but each time they worked overtime their local office manager had to file a timekeeping "exception" or "deviation" to the default 40-hour week. No one kept records of the hours worked by these employees; each adjustor had to request an exception each time. But each local office manager has a non-negotiable compensation budget, which "creates a functional limit on the amount of overtime a manager may approve." In effect, then, adjustors worked overtime, then had to file requests which often would not get approved by their managers, and ended up not getting paid for many hours of overtime they had already worked.

Plaintiffs alleged in their complaint that after reclassifying them as hourly employees, Allstate had an unofficial policy of continuing to require adjustors to work overtime but discouraging them from reporting it so it could be compensated. In effect, the company continued to treat them as salaried employees for whom paid overtime was an "exception" that required special approval case by case. They further allege that company knew or should have known that class members were doing this, and "stood idly by without compensating (them) for such overtime."

In its appeal of class certification, Allstate argued that the district court had abused its discretion in certifying the class, because the purported class fails to satisfy the commonality requirement under Rule 23 since not all of the legal questions raised in the lawsuit apply to every class member. The Appeals Court disagreed, concluding that the relevant issue was whether the questions at the core of the case, questions the answers to which were "apt to drive the resolution of the resolution of the litigation," and that in this case the central question in the case did in fact apply to the class generally. That question is whether the company required its claims adjustors to work more than forty hours per week while discouraging them from reporting those hours or collecting overtime pay. The Court concluded that "the district court did not abuse its discretion in determining that these three common questions contained the 'glue' necessary to say that 'examination of all the class members' claims for relief will produce a common answer to the crucial question[s]' raised by the plaintiffs' complaint."

So about 800 plaintiffs are now posed to recover many hours' worth of overtime pay after Allstate properly reclassified them, but without adjusting its payroll policies accordingly.

If you are an employee and you believe your rights under Fair Labor Standards Act or corresponding state laws have been violated, please contact The Harman Firm, PC.

September 4, 2014

NLRB Says Owners Acted Unlawfully by Firing Employees for Facebook Conversation, Orders Reinstatement with Back Pay

On August 22, 2014, the National Labor Relations Board released its Decision and Order in a pair of cases against Respondent Three D, LLC d/b/a/ Triple Play Sports Bar and Grille ("Triple Play"). The cases were brought by two former employees who were fired in 2011 in response to a conversation they had on Facebook about their employer.

The panel of three Judges agreed that the Triple Play violated the National Labor Relations Act (NLRA) by terminating two employees for participating in a Facebook conversation during which they criticized and complained about their employer. This Facebook conversation began when one of the employees posted the following status update:

"Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"

Other employees joined the conversation, which centered around the company's withholding too little from their paychecks for state tax, causing each of them to receive an unexpected tax bill at the end of the year. Section 7 of the NLRA grants employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection;" Section 8(a)(1) then prohibits an employer from acting so as to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." The Board decided that Triple Play had violated these sections of the Act because this Facebook conversation by the employees was "concerted activity" by the employees "for the purpose aid or preservation," and therefore protected by the NLRA. Criticism, even including some potentially offensive language, is generally protected under the law.

The Judges acknowledged the need to balance the law's protection of concerted activity by employees against the employer's need to protect its reputation by preventing employees from publicly disparaging the company or discussing its confidential information. In the present case, Triple Play argued that the employees had lost the protection of the Act by demonstrating disloyalty to, and making defamatory and disparaging comments about, their employer. The Board made several interesting determinations about this defense: first, that the comments were about the employees' working conditions, not e.g. about the company's product, and thus protected; second, that the correct legal standard, from Linn, was that the NLRA protected employees' complaints against their employer unless those complaints were "circulated with malice:"--that is, either "with knowledge of their falsity, or with reckless disregard of whether it was true or false." The complaints made by employees in this case were not malicious in this sense; third, and most interestingly, that the context of this conversation, whether or not the participants' Facebook settings made their comments private, were "not directed to the general public," and thus more akin to private conversation than public pronouncements.

Upon learning about this Facebook conversation, the owners of Triple Play met with the employees, interrogated them about their posts, issued several threats including the threat of a lawsuit, then ultimately terminated them.

In its decision the Board addressed one other important issue. Reversing the decision of the Administrative Law Judge who first heard the case, the Board concluded that Triple Play's Internet/Blogging policy itself violated the NLRA by being too broad. Following the legal reasoning in many recent cases, two of the three judges found that the language of the company's social media policy, with its general prohibition on "inappropriate discussions about the company, management, and/or coworkers," could reasonably be interpreted by employees as prohibiting "discussions and interactions protected by Section 7" of the Act.

The internet is where a lot of pro-labor conversation happens nowadays, and--much to the chagrin of companies and their lawyers--courts and regulators are beginning to recognize this fact and extend the NLRA's protection to various social media.

If you are an employee and you believe your rights under the National Labor Relations Act have been violated, please contact The Harman Firm, PC.

September 2, 2014

Federal Court for New York's Southern District Awards $396,992.64 to Three Plaintiffs in Wage-and-Hour Case Against Rosa's Pizza and Pasta Restaurants

On August 26, 2014, magistrate Judge James L. Cott issued his Report and Recommendation in the case Yuquilema et al v. Manhattan's Hero Corp et al., which included detailed calculations that the Court was required to make itself because the Defendants defaulted by failing to appear. The Plaintiffs' allegations in the case ran a familiar gamut--that the Defendants required them to work extensive overtime without ever paying time-and-a-half; that Defendants paid all Plaintiffs in cash and failed to keep records in order to conceal their underpayment of wages; that Defendants paid tipped employees less than minimum wage while requiring them to spend more than 20% of their work hours doing non-tip-generating tasks; that employees were never notified that they were entitled to minimum wage and overtime pay, or that Defendants intended to claim a tip credit; that they failed to pay "spread of hours" pay of one hour at minimum wage for shifts longer than 10 hours--all in violation of both the Fair Labor Standards Act and the New York Labor Law.

A striking fact about the Magistrate's Report is the detailed calculation of each Plaintiff's award based on estimates of hours worked at various wage-rates, and in the performance of various tasks, during different periods of time. The Court generated detailed--and frankly impressive--charts to explain the basis of its recommended judgment:

*For Plaintiff Orea, $90,864 in compensatory damages for unpaid wages, $2,500 in statutory damages for failure to receive wage statement, $34,920 in federal liquidated damages, and $25,298 in New York liquidated damages
*For Plaintiff Velendez, $33,160 in compensatory damages for unpaid wages, $2,500 in statutory damages, $23,094.48 in federal liquidated damages, and $16,978.38 in New York liquidated damages
*For Plaintiff Carrasco, $73,899 in compensatory damages for unpaid wages, $2,500 in statutory damages, $45,666 in federal liquidated damages, and $35,611.57 in New York liquidated damages
In addition, Plaintiffs would also be awarded $8,810 in attorney's fees and $430 in costs.

The damages awarded this case might have been even greater, but for the fact that Plaintiff Yuquilema and his attorneys failed to provide the Court with consistent and timely information about his hours worked. Concluding that it could not calculate damages for Yuquilema on the basis of the information provided, the Court ultimately decided to deny entry of judgment for damages in his favor. The total judgment of nearly $400,000 is for only three of the four original Plaintiffs.

The Court's award of damages might have been greater for another reason, too. Under New York Labor Law, if a company fails to provide its employee with a wage notice within ten business days of the start of her employment, then annually each February thereafter, the employer must pay fifty dollars for each week in which this violation occurred or continued to occur. NYLL ยง 198(1-b). However, the Court notes: "Oddly, the NYLL extends this private cause of action to employees whose employer fails to provide the initial notice at their hire, but not for subsequent failures to furnish the annual notice in following a consequence, none of the Plaintiffs here may recover under this provision of the NYLL--even though Defendants failed to provide the requisite annual each commenced employment prior to April 9, 2011." In other words, only the company's notification at the initial time of the employees' hiring matters legally, but that time is outside the statute of limitations in this case.

If you believe your rights under the Fair Labor Standards Act or State Labor Laws have been violated, please contact The Harman Firm, PC.

August 30, 2014

Damage Awards and Attorneys' Fees Survive Appeal in Donning and Doffing FLSA Case Against Meat Packing Behemoth Tyson Foods

On August 19, 2014, the Tenth Circuit Court of Appeals rejected every argument raised by Tyson Foods, Inc. in its appeal of a decision by the Kansas District Court in Garcia v. Tyson Foods, Inc., a wage-and-hour case in the class of plaintiffs claim underpayment in violation of both the Fair Labor Standards Act (FLSA) and the Kansas Wage Protection Act (KWPA). Plaintiffs in the case alleged that they were required to spend an average of about ten to twenty minutes each shift putting on and taking off protective clothing and walking to and from their workstations, but were paid for only four to seven of those minutes under Tyson's company policies. The case went to trial, and the jury ultimately awarded the plaintiffs $166,345 for their FLSA claims, 336,666 for their KWPA claims, plus 3,389,207.41 in attorneys' fees.

An interesting feature of the plaintiffs argument here is that the defendant actually acknowledged its obligation to pay employees for "donning and doffing" time and maintained policies for doing so. Under its wage policy, workers "were paid through two systems: (1) "gang time," which was intended to compensate for time spent working on the production line, and (2) "K-Code" time, which was intended to compensate for time spent on pre- and post-shift activities, such as putting on protective clothing and equipment, taking them off, and walking to and from the work stations." So the allegation is not that Tyson simply failed to pay workers for this extra time, but that the company didn't pay enough to cover all the hours spent.

In its appeal, Tyson raised three arguments against the District Court's ruling. First, they argued, the Court was incorrect to accept and continue the certification of the class, based on dissimilarities between some of the plaintiffs and gaps in the information about them; however, the Court found that "there was a reasonable basis for the jury's finding of systematic undercompensation," and that this evidence was also "sufficient for the finding of class-wide liability." Second, Tyson argued that some members of the class were not underpaid, and thus the jury's calculation of damages could not have been correct. Finally, the Defendants argued against the almost-3.5 million awarded for attorneys' fees. They argued that the company was entitled to itemized records of attorney time spent on the case by plaintiffs' counsel, that they were not entitled to collect fees for time spent pursuing unsuccessful motions, and that the jury award was far out of proportion with the amount of the award in the case (about 8%, actually). The court, acknowledging the disproportionality of the attorneys' fees relative to the damage awards, concluded that the District Court had acted well within its discretion in assessing those damages, and cited case law in which the Supreme Court and others had concluded that awards for attorneys' fees can far out of proportion with the amount of the settlement or verdict and yet be within the Court's discretion to accept.

If you are an employee and you believe your employer has failed to pay all the wages you are owed, including time-and-a-half for hours worked beyond 40 in any given week, please contact The Harman Firm, PC.

August 27, 2014

Appeals Court Reverses Summary Judgment for Defense in Case of Company That Denied FMLA Leave for Depression

On August 18, 2014, the Seventh Circuit Court of Appeals reversed a decision by the U.S. District Court for the Eastern District of Wisonsin to grant summary judgment to the defendant in Hansen v. Fincantieri Marine Group LLC. The plaintiff in this case alleged that his employer, Fincantieri Marine Group ("FMG") interfered with his rights under the Family and Medical Leave Act and then terminated him in retaliation for exercising the same rights.

The key question for the Appeals Court in this case was whether the employer had the right to make Mr. Hansen's FMLA leave conditional on his providing an expert opinion supporting his claim that his condition--depression--was serious and rendered him unable to perform his job. The Wisconsin District Court had accepted the Defendant's argument that they were legally permitted to deny Mr. Hansen's request for leave because i) the notification they received from Mr. Hansen's doctor estimated that he would need intermittent leave when his depression flared up, about four times every six months for 2-5 days each time, but he took leave exceeding that predicted amount of time; and iii) the evidence Mr. Hansen provided to the company substantiating his FMLA claims did not include an expert medical opinion. The Appeals Court rejected this conclusion and remanded the case back to District Court.

FMG has an attendance policy, under which employees accumulate points for missed work time. An employee gets one point for each time they miss more than four hours of a scheduled work day, and is subject to termination if they have ten points. Plaintiff Hansen had nine points, then requested FMLA leave for two additional episodes of depression. If he had been granted FMLA leave, these two absences would not have counted toward his attendance points. However, FMG denied his requests, because he had "exceeded his frequency" as outlined in his doctor's notice to the company and his certification for additional FMLA leave was incomplete or insufficient. He received additional points and was terminated.

The Family and Medical Leave Act guarantees an employee the opportunity to cure any claimed deficiency in the cerficiation of a request for leave before the employer may deny the request. Hansen was not given this opportunity. FMG rejected the medical certification he provided because it was not the testimony of a medical expert commenting on Mr. Hansen's incapacity to do his job. But FMG never informed Mr. Hansen that they had found his certification incomplete, thus denying him his right to attempt to "cure the deficiency."

The Court also explained no grounds had been provided for the company's claim that Hansen had "exceeded his leave," since his doctor's statement about his condition was only an estimate of how much leave he was likely to need: "...none of the other authorities cited by FMG establish that the estimated frequency and duration of intermittent leave act as absolute limits on the employee's entitlement to leave." The company was legally obligated to find out whether certification could be provided for Hansen's additional absences, and to give him an opportunity to correct any problems with this certification, before they could terminated him.

If you are an employee and you believe your rights under the FMLA have been violated, please call The Harman Firm, PC.

August 25, 2014

Applebee's Restaurants Sued for Paying Sub-Minimum Wage to Servers for Un-Tipped Work; Court Grants Motion for Class Certification

On August 24, 2014, the Western District of New York Federal District Court granted class certification to Plaintiffs in the case Hicks et al v. T.L. Cannon Management Corp. et al. The Defendants own almost sixty Applebee's franchises in New York and employ hundreds of servers who earn most of their money from customers' tips. As is typical in the restaurant industry, these servers are paid a base wage that is well below the minimum wage. Normally a server will expect their earnings with wage plus tips to be much more than the minimum wage, and it is Applebee's policy that servers who make less than the minumum wage are paid enough to make up the difference between what they actually earned and what they would have earned if paid the minimum wage.

So far, so good. But the plaintiffs claim that they were also regularly paid the subminimum-wage base rate for hours they spent on tasks unrelated to their tip-earning customer service work. Plaintiffs enumerage several examples of such unrelated work in the Complaint:
*cleaning the dining room and all wood work with Murphy's Oil Soap
*dusting the artificats and memorabilia hanging on the walls
*windexing all the photos on the walls
*scrubbing the legs of all the chairs
*dusting all TVs
*wiping down the wrought iron
*cleaning out the cracks of the booths
*cleaning and cutting vegetables, spices, fruits
*preparing sanitation buckets
*preparing dessert shooters
*setting up the salad bar
*setting up the expo line
*breaking apart and cleaning the soda machine
*breaking down the salad bar
*breaking down the expo line
*removing and cleaning light fixtures
*scraping the gum from under every table
*removing all the items on the shelves
*cleaning and wiping down all the shelves in the kitchen
*vacuuming, sweeping, dusting, sanitizing
*replacing all paper products in the bathrooms
*cleaning bathroom floors
*washing the store's windows
*bleaching coffee cups, mugs, pots, tea kettles
*cleaning dishes and skillets
*rolling silverware
*filling creamers
*filling salt and pepper shakers
*doing expediter duties
*stocking beverage stations
*preparing entrees and appetizers

Plaintiffs allege that it was Defendants' policy not to adjust their pay to at least minimum wage when they performed these jobs, even when they spent more than 20% of their work day on these non-tip-earning tasks.

In its August 24th Order, the Court made three key decisions that favored the Plaintiffs. First, it granted the motion for class certification, with some adjustments to the Plaintiffs' proposed definition of the class.

Second, the Court found the Defendants' most straightforward argument--that businesses do not have to pay the minimum wage to tipped employees, but only a separate and lower base wage--"without merit" and "flatly contradicted by the statute, the regulations, and the relevant case law." Defendants argued that "food service workers do not receive a tip allowance or credit" that offsets part of what the employer would normally pay them; rather, they argue, food service workers simply earn a lower wage. The Court pulls up this argument by its roots, concluding that "Defendants have not cited a single case in which a court held that food service workers were subject to a completely different hourly minimum wage, as opposed to receiving a tip credit against the standard minimum wage. Cao, the sole case Defendants cite in support of their argument, actually states the opposite..." In short, the Court accepts the Plaintiffs' premise that they were entitled to at least minimum wage for all hours they worked.

Finally, third, the Court concluded that Defendants had failed to meet their legal obligation to properly notify Plaintiffs that they would be claiming a "tip credit" for money earned by servers which brought them up to the level of the minimum wage. They also failed to notify servers that they were entitled to makeup pay if they did not earn at least the minimum wage from wages plus tips. Plaintiffs won a consequential victory when the Court granted summary judgment on this point, since it implies that Defendants "were not entitled to take a tip credit and they are therefore liable to (Plaintiff) for paying her less than the standard minimum wage."

If you are an employee and you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

August 22, 2014

Massachusetts is Latest State to Require Employers to Provide Domestic Violence Leave

On August 8, 2014, Massachusetts Governor Deval Patrick signed a new law that offers leave from work to domestic violence victims and their family members; so that they can take necessary steps such as getting medical attention; seeking victim services; submitting police reports; talking to attorneys, police or courts; making arrangements for child custody; etc. The Family and Medical Leave Act offers only limited leave for the specifically medical needs of the victim, but the new law recognizes many other ways in which domestic violence can disrupt the victim's working life.

About a dozen other states have enacted similar laws. The provisions of those laws vary widely. Washington D.C.'s law is the only one that mandates paid leave. The laws vary in the activities for which leave is allowed. They also vary in the amount of time granted: some offer a set number of days, others require only a "reasonable" amount of leave, while others are silent about the length of time and only prohibit disciplining or firing employees who take time off for reasons relating to domestic violence. The Massachusetts law mandates "up to 15 days of leave from work in any 12 month period."

The new law also specifies that, while employees can be required to provide "appropriate advance notice of the leave to the employer...if there is a threat of imminent danger...the employee shall not be required to provide advanced notice of leave; provided, however, that the employee shall notify the employer within 3 workdays that the leave was taken or is being taken under this section." An obvious problem for domestic violence victims is that they can suddenly miss work, violate their employer's policy regarding notice for absences, and lose their jobs. The employee will now be guaranteed 30 days to provide any required documentation to the employer regarding the reason for their absence from work.

Under the new law, an employer can require the employee to provide documentation substantiating the domestic violence. Importantly, though, the employer cannot require the employee to provide an arrest, conviction, or other law enforcement documentation; notes from doctors, admissions from the abuser, sworn statements from counselors or shelter workers, or the employee herself are sufficient. Whatever information the employee provides must be kept confidential by the employer.

Massachusetts new "Act Relative to Domestic Violence" has two important limitations. First, before taking leave, the employee is required to exhaust "all annual or vacation leave, personal leave and sick leave" that is available. (Presumably this provision is there as a disincentive to anyone who would inappropriately claim leave under the law.) A second, more worrisome limitation is that the law "shall apply to employers who employ 50 or more employees." Lawmakers' hesitance to impose costs on small businesses is obviously understandable, there must be hundreds of victims of domestic violence who work for businesses with less than 50 employees. Surely they should be protected as well.

If you believe your employer has violated your legal rights, please contact The Harman Firm, PC.

August 20, 2014

New York is 23rd State to Legalize Medical Marihuana

On July 7, 2014, New York Governor Andrew Cuomo signed into law the Compassionate Care Act, creating a regulatory framework for the controlled growth of a new marijuana industry in the state that could benefit both patients and public coffers. New York becomes the twenty-third state to legalize medical marijuana.

Critics raise many different kinds of objections to the law. Pro-legalization advocates complain that the law is disappointingly limited. It includes a complex array of regulatory requirements including licenses for users and producers; the law sunsets in seven years unless the legislature acts to renew it; it limits possession by individual users to a 30-day supply or 2.5 ounces; it specifies that there can be only five manufacturers producing medical marijuana legally in the state; and the list of diseases for which marijuana can be prescribed arguably leaves out many patients who could benefit. The new law also arguably inflates the drug's cost by forbidding whole-plant sales, prohibiting production or sale of medical marijuana in its most-common smokable form, and imposing a seven percent tax on the drug.

On the other hand, New York's law is relatively sweeping in one way: it classifies all individuals who are prescribed medical marijuana as "disabled," which implies that employers will have to make allowances--and even provide reasonable accommodation for medical marijuana users. We can expect a lot more arguments by legislators, and probably a good amount of legal activity, aimed at deciding exactly which accommodations legal marijuana users must be provided by their employers.

Other criticisms have to do with the new law's requirement that these five new large entities that will be collectively responsible for production of all legal pot in New York are required by statute to have all their employees represented by "bona fide labor organizations" and to enter into "labor peace agreements" with their employees' unions. Indeed, the first section states:

The legislature finds that the financial viability of such organizations (producers) would be greatly diminished and threatened by labor-management conflict, such as a strike at a facility that cultivates marijuana, especially because of the need for enhanced security concerning the products. Replacements during a strike would be difficult to arrange and cause delay far more significant than a strike elsewhere. Accordingly, the legislature finds that the state has a substantial and compelling proprietary interest in this matter, and finds that labor peace is essential for any organization to conduct business relating to the sale of medical marihuana."

Critics argue that this requirement will greatly increase the cost of labor and, ultimately, the product. Others simply oppose union activity generally and see the law's provisions about "labor peace" as a victory for their pro-union adversaries. Interestingly, the authors of the law seem to be most interested in making the state's new marijuana industry economically stable, by putting employees under agreements that offer them benefits in return for agreeing not to engage in disruptive activities like strikes.

If you believe your rights under New York's new Compassionate Care Act have been violated at work, please contact The Harman Firm, PC.

August 18, 2014

Home Depot Settles FLSA Misclassification Case with Fourteen Plaintiffs for $376, 941.91; Over 100 Opt-Ins Dismissed Without Prejudice and Able To Bring Further Actions

On August 11, 2014, the U.S. District Court for the Southern District of California approved a settlement in the case Ambrosino, et al. v. Home Depot, U.S.A., Inc, which would award about $224,000 to the plaintiffs and about $113,600 to their counsel.

There was extensive legal wrangling about the constitution of the class of plaintiffs, and about confidentiality provisions in the settlement agreement, but the basic complaint in this case was relatively straightforward. Plaintiffs allege that Home Depot intentionally misclassified certain employees as managers in order to avoid paying them time-and-a-half for hours worked in excess of forty per week. Specifically, while the company paid its Department Heads, Supervisors, Store Managers, and Store Managers hourly wages and premium time-and-a-half pay when they worked overtime, another category of employees--Merchandising Assistant Store Managers (MASMs)--were classified as exempt from overtime pay under the Fair Labor Standards Act (FLSA) and never paid overtime.

In their complaint, plaintiffs allege that Home Depot classified them as "executives," and thus as exempt under the FLSA, despite the fact that their job duties consisted primarily of non-managerial duties such as "packing and unpacking freight; setting product; cleaning the bathrooms and the store; picking up and taking out the garbage; returning shopping carts from the parking lot to inside the store; running registers; receiving trucks; building displays; cutting wood; painting displays; fixing tools; labeling product in overhead; and loading customers' cars ('tasking'). When Plaintiffs were not tasking and were on the floor, Plaintiffs spent the majority of their time providing customer service."

Nationwide, the losses suffered by Home Depot's "Assistant Managers" because of this policy are substantial: they are were required to work a minimum of 55 hours per week, and regularly have to work more than this, without ever receiving overtime pay. Plaintiffs characterize Home Depot as doing all of these things in willful violation of the FLSA, simply in order to save money on labor costs.

In the present case and several other, similar cases, judges have recently ordered that putative classes of plaintiffs be broken up and their cases transferred to different courts where those plaintiffs have resided and worked. For example, just as Judge Lorenz denied the Plaintiffs' motion for class certification in Ambrosino, a judge in the District Court for Connecticut granted defendant Home Depot's motion in James D. Costello, et al. v. Home Depot U.S.A., Inc. to sever the claims of thirty-five plaintiffs and transfer their cases back to their home states.

Hopefully other attorneys will be as determined as those representing the plaintiffs in the Ambrosino case, since the basic question of whether Home Depot misclassified its Merchandising Assistant Managers in order to avoid paying them overtime wages seems to be getting answered in the plaintiffs' favor in court.

If you believe your rights under the Fair Labor Standards Act to minimum wage or overtime pay have been violated, please contact The Harman Firm.

August 13, 2014

Appeals Court Reverses Summary Judgment in FMLA and Title VII Retaliation Case, Criticizes Defendant for Tactics

On August 7, 2014, the Seventh Circuit Court of Appeals reversed the decision by the United States District Court for the Northern District of Illinois to grant summary judgment to the Defendant in Malin v. Hospira, Inc. Judge Hamilton, writing the Court's Opinion, criticized the District Court's reasoning and actually rebuked the Defendant for the arguments it gave in seeking and defending summary judgment.

Plaintiff Deborah Malin alleged Title VII and FMLA retaliation by her employer, Hospira, Inc. (Abbott Laboratories, at the time she was hired), arguing that she was repeatedly denied promotion from about 2003 through 2007 in retaliation for either (i) pursuing a sexual harassment complaint, (ii) telling management she would need FMLA leave, or (iii) some combination of (i) and (ii).

In July 2003, Plaintiff Malin told her direct supervisor Bob Balogh that she intended to complain to Human Resources about sexual harassment by her indirect supervisor Satish Shah. Balogh then called Shah's boss, Mike Carlin, and told him about Malin's intention to complain. Balogh made this call in Ms. Malin's presence, and she heard Carlin shouting through the phone and, when Balogh hung up, he told Malin that Carlin had told him to do everything in his power to stop Malin from going to Human Resources. Malin then made a formal sexual harassment complaint. Abbot investigated Malin's complaint, and eventually issued him a counseling memorandum and written warning, but no further action was taken.

Malin would continue to work under Carlin's decision-making authority for at least five more years. The Court found that she had provided enough evidence that Carlin might have remained hostile toward her over this entire time, and that the Plaintiff could plausibly argue that he made a series of decisions which denied her advancement opportunities because of his continued hostility about the sexual harassment complaint. While she received glowing reviews from just about everyone else, as long as Carlin remained the final decision-maker for all promotions in the IT department, Malin's career stagnated. In fact, as part of a company reorganization she was actually demoted from level-2 to level-3 manager, after a new position was created above hers. That position remained open for over a year, until Carlin Malin's new manager to hire an external candidate for the position. Malin's application for the position was never considered.
The Defendant had argued in District Court, and the Judge had agreed, that the three-year gap between Malin's complaint and the reorganization undermined any inference about retaliation by Carlin. But the Circuit Court cites several decisions in which it was made clear that the mere passage of time between protected activity and adverse action does not undermine a retaliation complaint.

Regarding the FMLA retaliation claim, the Defendant had argued that Carlin's decision not to promote Malin could not have been retaliation for her FMLA claim, since that claim was made days after a meeting in which the decision not to promote her had already been made. Again poring over the evidence, the Appeals Court found that this claim was disputable, especially considering that no evidence was offered porporting to show that such decisions had been made then.

The Circuit Court Judges closed their Opinion paper by scolding the Defense for "misrepreset(ing) the record and Malin's legal arguments" by "cherry-pick(ing) isolated phrases from Malin's deposition..." They warn Defense counsel that "this approach to summary judgment...quickly destroys their credibility with the court." At one point the Judges referred to the Defendant's legal strategies as "shenanigans," and highlighted the dangers they involve.

If you believe you have been retaliated against for claiming FMLA leave from work, or for complaining to management about unlawful behavior at work, please contact The Harman Firm, PC.