Lev Craig

On April 12, 2017, the Second Circuit affirmed the district court’s decision in Saleem v. Corporate Transportation Group, Ltd., finding that a group of black-car drivers had been properly classified as independent contractors under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The court held that the drivers’ significant degree of independence prevented them from establishing that they were employees within the meaning of the FLSA or NYLL.

Under New York law, black cars are defined as a “type of for‐hire vehicle (along with livery vehicles and limousines) that provide ground transportation by prearrangement with customers.” The Saleem plaintiffs are a group of black-car drivers serving clients throughout the tri-state area; the defendants were operators and administrators of a black-car dispatch, which sells black-car franchises to individual drivers and refers the dispatcher’s clients to the driver. Each driver signed an agreement with a franchisor, stating that the driver was not an “employee or agent” but instead a “subscriber to [the franchisor’s] services offered,” that the driver would “at all times be free from [the franchisor’s] control or direction,” and that the franchisor would not “control, supervise or direct” the driver’s work. The agreements did not prohibit drivers from transporting customers for other companies, including competitors, but did require that drivers comply with policies set out by each franchisor, such as rules concerning dress code and vehicle cleanliness.

Lev Craig

On March 13, 2017, the U.S. Court of Appeals for the First Circuit reversed the district court’s granting of summary judgment in O’Connor v. Oakhurst Dairy, an unpaid overtime case brought by delivery drivers for Oakhurst Dairy (“Oakhurst”), a Maine local milk and cream company. The First Circuit found that the district court had incorrectly categorized the drivers as exempt from overtime under an ambiguous section of the Maine state wage-and-hour law—all, as First Circuit Judge David J. Barron wrote in the O’Connor opinion, “[f]or want of a comma.”

The O’Connor plaintiffs filed suit in the United States District Court for the District of Maine in May 2014, seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”) and the overtime provisions of the Maine state wage-and-hour statute, 26 M.R.S.A. § 664(3). They alleged that Oakhurst had misclassified them as exempt under Exemption F of the Maine state overtime law, which states that employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of […] [p]erishable foods” do not receive overtime protections.

Lev Craig

In October, we reported that the U.S. Court of Appeals for the Seventh Circuit had vacated its July 2016 decision in Hively v. Ivy Tech Community College, where a former adjunct college professor brought suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that her employer had refused to hire her for a full-time position because she is a lesbian. Yesterday, April 4, 2017, the Seventh Circuit reversed the district court’s decision and became the first Court of Appeals to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

Kimberly Hively, who is openly gay, started teaching part-time at Ivy Tech Community College in 2000. Between 2009 and 2014, she unsuccessfully applied for six different full-time positions. When the college also failed to renew her part-time contract in July 2014, Hively filed a charge of discrimination with the Equal Employment Opportunity Commission and subsequently brought suit pro se in the U.S. District Court for the Northern District of Indiana, alleging that she had been denied employment opportunities because she is a lesbian. The district court dismissed Hively’s complaint on the grounds that Title VII did not cover sexual orientation discrimination, and Hively appealed.

Lev Craig and Harrison Paige

On March 27, 2017, the United States Circuit Court of Appeals for the Second Circuit reversed and remanded in part and affirmed in part the district court’s decision in Christiansen v. Omnicom Group, Incorporated, et al. Plaintiff Matthew Christiansen brought claims against his former employer under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of his HIV-positive status and his failure to conform to gender stereotypes. The lower court dismissed Christiansen’s federal claims for failure to state a claim; the Second Circuit upheld the dismissal of the ADA claim, but reversed the dismissal of the Title VII claim, finding that Christiansen had plausibly alleged a Title VII gender stereotyping claim.

Christiansen, an openly gay man who is HIV-positive, was the creative director for DDB Worldwide Communications Group Incorporated (“DDB”), an international advertising agency and Omnicom subsidiary. According to the complaint, Christian’s direct supervisor, Joe Cianciotto, subjected Christiansen to a “pattern of humiliating harassment targeting his effeminacy and sexual orientation.” Cianciotto allegedly drew offensive, obscene caricatures of Christiansen on an office whiteboard, the most explicit of which depicted Christiansen naked with an erection, captioned with a mocking comment about same-sex marriage. On another occasion, according to the complaint, Cianciotto created a “Muscle Beach Party” poster, which he circulated amongst office members and posted on Facebook, displaying DDB employees’ heads photoshopped onto the bodies of people in swimwear; on the poster, Christiansen’s head was pasted onto a photo of a woman in a bikini, lying on the ground with her legs upright in the air “in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

Shelby Krzastek

Hello, readers of the blog! My name is Shelby, and I have been working as a legal intern at The Harman Firm, LLP, for the past five months. In that time, I hope you’ve been able to read some of my posts about employment law and workers’ issues. Today is my last day, and I wanted to leave you with some insights about my time here.

The Harman Firm is small, but I benefited from this experience because I got to work closely with everyone. To be honest, I was extremely nervous when starting this position. I had never worked in a law office before and am glad The Harman Firm believed in my capabilities and gave me this chance to work as their legal intern.

Lev Craig

Earlier this month, the United States Court of Appeals for the Eleventh Circuit affirmed in part and vacated and remanded in part the district court’s decision in Evans v. Georgia Regional Hospital, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) does not prohibit sexual orientation discrimination in the workplace.

Jameka Evans worked at Georgia Regional Hospital (the “Hospital”) in Atlanta, Georgia, as a security officer. Evans, who is a lesbian, had a masculine gender presentation at work: she wore the men’s security officer uniform, men’s shoes, and a short, masculine haircut. According to Evans’ complaint, the Hospital discriminated against her because of her sexual orientation and because she did not behave in a “traditional woman[ly] manner.” Evans alleged that she was denied equal pay, harassed, physically assaulted, targeted for termination, and retaliated against after making a complaint of discrimination to the Hospital’s Human Resources department.

Shelby Krzastek

On March 8, 2017, Anita Poe-Smith filed suit against Epic Health Services, Inc. (“Epic”), and Leo and Sherrie Weigand, alleging sexual harassment and retaliation. Ms. Poe-Smith works for Epic as a home health aide.

In February 2015, Epic assigned Ms. Poe-Smith to work for a client residing in the home of Leo and Sherrie Weigand. Ms. Poe-Smith claims that from February 2015 to May 2015, Mr. Weigand sexually harassed her by directing sexual innuendos and inappropriate comments toward her and, ultimately, physically assaulting her when, according to Ms. Poe-Smith, Mr. Weigand pushed her down and hit her on her buttocks. After reporting the incident to Epic, Ms. Poe-Smith was offered a new assignment, which she was unable to accept because it interfered with her familial obligations. Several weeks later, Epic offered her another full-time assignment, which she accepted. Ms. Poe-Smith then sued Epic Health Services and the homeowners for sexual harassment and retaliation.

Harrison Paige and Lev Craig

On February 27, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed the lower court’s ruling in Kalu v. Florida Department of Children and Families, a gender discrimination suit brought under the Equal Pay Act (“EPA”). The Eleventh Circuit affirmed the district court’s summary judgment in favor of the defendant, a Florida state hospital, finding that plaintiffs—two female nurse practitioners at the hospital—had failed to show that a $20,000 disparity between their pay and a male nurse practitioner’s salary constituted unlawful gender discrimination in violation of the EPA.

Plaintiffs Patricia Kalu and Susan Linder-Wyatt worked as nurse practitioners at a hospital managed by the Florida Department of Children and Families. When plaintiffs discovered that they made nearly $20,000 less than Michael Peel, a male nurse practitioner with identical job responsibilities, they filed suit in the United States District Court for the Northern District of Florida, alleging that the pay disparity between female and male nurse practitioners violated the EPA. The district court granted summary judgment, finding that plaintiffs had failed to show that the hospital’s pay disparity was discriminatory, and plaintiffs appealed to the Eleventh Circuit.

Owen H. Laird, Esq.

Today, the United States Senate will hold its second day of confirmation hearings for Supreme Court Nominee Neil M. Gorsuch. Judge Gorsuch currently serves on the United States Court of Appeals for the 10th Circuit. Although his confirmation hearings have been contentious, President Trump’s nominee is likely to be confirmed, as Republicans control enough votes in the Senate to do so. As the Supreme Court is presently split 4-4 between liberal and conservative Justices, Judge Gorsuch would likely represent the swing vote on the Court.

Judge Gorsuch has a long history of judicial decisions and legal writing to parse for clues as to what type of a Supreme Court Justice he might be. Putting aside some of the judicial issues that have received more attention recently—such as abortion, gay marriage, healthcare, use of force by the police—the incoming Supreme Court Justice will have a significant impact on the state of employment law in the U.S. in light of the Court’s current mixed political makeup.

Harrison Paige

The U.S. District Court of Colorado recently certified a class action lawsuit filed against GEO Group, Inc. (“GEO”), a billion-dollar private prison conglomerate. Plaintiffs claim that they were forced to clean the Aurora Detention Facility (the “Facility”) while detained and awaiting immigration hearings, in violation of federal slave labor laws, and that GEO was unjustly enriched by Plaintiffs’ work. This is the first time that a court has certified a class action claiming that a private U.S. prison violated the Trafficking Victims Protection Act (“TVPA”). The TVPA’s prohibitions against forced labor state that obtaining labor or services via means or threats of force, restraint, harm, abuse, threatened abuse of law, or deceptive schemes is illegal. The approval of class action status means that up to 60,000 current and former inmates of the Facility “are now part of the lawsuit without having to actively join as plaintiffs.

First, Plaintiffs claim that GEO violated the TVPA “by requiring detainees to clean the private and common areas of the Facility without any compensation and under the threat of solitary confinement and other punishments.” Allegedly, GEO chooses a handful of inmates each day and forces them to work as janitorial staff for the 1,500-bed Facility, violating Immigration and Customs Enforcement’s (“ICE”) own sanitation policy, which only mandates that “all detainees perform personal housekeeping,” like making their own beds, organizing their bunk area, and keeping the floor free of clutter. The sanitation policy does not include any mandate regarding detainees working as janitorial staff for the entire Facility. Thus, Plaintiffs claim that Facility staff’s threats of solitary confinement and additional criminal charges to solicit detainee labor violates the forced labor provision of the TVPA (18 U.S.C. §§ 1589, 1595).