Lev Craig

On August 10, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated the lower court’s dismissal of the plaintiff’s sex discrimination and FMLA interference claims in Shultz v. Congregation Shearith Israel of the City of New York. The Second Circuit found that the defendant’s notice to the plaintiff of her future termination constituted an adverse employment action, even though the notice of termination was later revoked.

Alana Shultz began working as Program Director at a New York City synagogue in 2004. In June 2015, Shultz, who was pregnant at the time, got married and notified her employer that she was pregnant. Shortly after Shultz disclosed her pregnancy, the synagogue notified Shultz that her employment would be terminated effective August 14, 2015, purportedly due to “restructuring.” Suspecting that the supposed “restructuring” was pretext for terminating her because of her pregnancy and because the synagogue’s leadership “disapproved of the fact that she was pregnant at the time of her marriage,” Shultz retained counsel, who then notified the synagogue of Shultz’s intent to pursue legal claims. Several days later, the synagogue rescinded its notice of termination, telling Shultz that it had “reinstated” the Program Director position and that she would therefore retain her position.

Lev Craig

On August 3, 2017, the U.S. Circuit Court of Appeals for the Seventh Circuit ruled against the plaintiffs in Allen v. City of Chicago, a Fair Labor Standards Act (FLSA) collective action brought by Chicago area police officers. The court found that the officers were not entitled to overtime pay for off-duty work they had performed on their mobile devices because the city had not known that plaintiffs were not being compensated for their work and because plaintiffs had not been prevented from requesting overtime pay.

The FLSA requires employers to compensate employees for all hours worked, and to compensate most employees at the overtime premium rate for all hours worked in excess of 40 in a work week. This requirement is strict: So long as an employer is aware that an employee has performed work, the employer must fully compensate the employee for all hours worked, “even if [the employer] did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.” If an employer does not want employees to work overtime hours, it is the employer’s obligation to “exercise its control and see that the work is not performed,” not the employee’s obligation to avoid working overtime hours. However, the FLSA’s mandate does not go so far as to cover work that the employer “did not know about, and had no reason to know about”; employees also have a duty to accurately report their time to their employer, and employees who fail to do so or who actively prevent their employer from learning of their hours worked are not covered by this protection.

Edgar M. Rivera

On July 5, 2017, Pennsylvania’s Judicial Conduct Board announced that Judge Michael R. Muth, a magisterial district judge for the East Stroudsburg Borough of Monroe County, Pennsylvania, is facing ethics charges after multiple court clerks complained about his viewing of pornography in his judicial chambers. Several court clerks claim that, while passing by Judge Muth’s desk over the last four years, they saw him watching videos and viewing pictures of women performing sexual acts on each other. Judge Muth’s computer was allegedly in plain view of the clerks passing by, and Judge Muth apparently made no attempts to hide what he was watching when a clerk entered his chambers.

Over half of working men, and one-third of working women, admit to watching porn on the job. Although no one has raised sexual harassment charges against Judge Muth, X-rated habits can lead to hostile work environment claims and sexual harassment claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). In Patane v. Clark, the Second Circuit found that a plaintiff stated a hostile work environment claim where she observed her superior viewing pornography, handled pornography when opening her supervisor’s mail, and discovered that her supervisor had viewed “hard core” pornography on her own working computer. The presence of pornography in the workplace and plaintiff’s forced interaction with the pornography were enough for the Second Circuit to deem that the plaintiff adequately pled a hostile work environment claim based on sex.

Owen H. Laird and Walker G. Harman, Jr.

On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.

Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.

Lev Craig

On July 19, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated a jury verdict for the defendant in Woods v. START Treatment & Recovery Centers, Inc. In Woods, the plaintiff claimed that she had been terminated in retaliation for taking leave under the Family and Medical Leave Act (FMLA). The court held that FMLA retaliation claims should be evaluated using the “motivating factor” causation standard and found that the jury had been incorrectly instructed on the applicable law, as the Woods jury had been instructed to apply the “but-for” causation standard, not the motivating factor standard. Accordingly, the Second Circuit vacated the lower court’s verdict and remanded the case for a new trial.

In 2007, Cassandra Woods began working as a substance abuse counselor at START, a New York–based nonprofit providing treatment and counselling to individuals addicted to narcotics. Woods has several debilitating medical conditions, including severe anemia. According to Woods, she repeatedly asked to take FMLA leave due to these medical conditions during her employment at START, but was denied on multiple occasions. In April 2012, Woods was hospitalized for a week, a period which START acknowledged was protected by the FMLA. Shortly after Woods’s return to work, START terminated her employment, purportedly because of performance deficiencies.

Owen H. Laird, Esq.

The tech companies of California’s Silicon Valley are playing an ever-expanding role in the world economy and redefining how people live their lives. However, in recent years, many of these companies have come under fire for their treatment of their workers, whether for overuse of “independent contractors” or numerous allegations of racism or sexism in the predominantly white, male field. Numerous lawsuits have been filed by current and former workers of all stripes, and class actions brought on behalf of entire classes of workers; one of the most broad-reaching actions addressing discrimination in Silicon Valley is not a single or multi-plaintiff lawsuit but an investigation by the United States Department of Labor into a potential gender pay disparity at Google.

Google is not only one of the wealthiest and most powerful companies in Silicon Valley, it is also a federal contractor, which means it must grant the Department of Labor access to information about its compliance with federal anti-discrimination and equal opportunity laws. The Department of Labor requested information on roughly 21,000 of Google’s employees as part of an investigation into a potential gender pay gap at the company. The Department of Labor’s investigation stems from pay disparities among Google employees identified in 2015.

Lev Craig

Last week, on July 6, 2017, the U.S. District Court for the District of Minnesota granted summary judgment in favor of defendant in EEOC v. North Memorial Health Care, finding that a Minnesota hospital had not violated Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew a nurse’s conditional employment offer after she requested a religious accommodation. The court held that the act of requesting a reasonable accommodation did not, in and of itself, constitute protected activity under Title VII. Consequently, North Memorial’s withdrawal of plaintiff’s job offer, as a matter of law, could never give rise to a Title VII retaliation claim. This decision contradicts the Equal Employment Opportunity Commission’s (EEOC) guidance, which includes requests for religious accommodations as protected activity.

Emily Sure-Ondara, the plaintiff in North Memorial, is a nurse and a practicing Seventh Day Adventist (a Protestant Christian denomination). In November 2013, Sure-Ondara was recruited for a registered nurse position at North Memorial. She applied for the job, and, after a series of successful interviews, North Memorial extended her a conditional offer of employment. According to the terms of the conditional job offer, Sure-Ondara was scheduled to work the night shift—11:00 p.m. to 7:00 a.m.—and weekends, every other weekend.

Edgar M. Rivera, Esq.

In McKeen-Chaplin v. Provident Savings Bank, FSB, the Ninth Circuit ruled that mortgage underwriters employed by a bank were entitled to overtime compensation for hours worked in excess of 40 in a work week.  The Ninth Circuit held that, because the mortgage underwriters’ primary job duty did not relate to the bank’s management or general business operations, they did not fall under the administrative exemption to the overtime requirements of the Fair Labor Standards Act (FLSA).

To show that an employee qualifies for the FLSA’s administrative exemption, an employer must demonstrate that the employee’s primary duty involves office or “non-manual work directly related to the management policies or general business operations” of the employer or its customers. This requirement is met if the employee engages in “running the business itself or determining its overall course or policies,” not just in the day-to-day carrying out of the business’ affairs. Said otherwise, “an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.”

Lev Craig

Last week, on June 26, 2017, the U.S. Supreme Court denied plaintiff Richard Villarreal’s petition for a writ of certiorari, declining to review the U.S. Circuit Court of Appeals for the Eleventh Circuit’s decision in Villarreal v. R.J. Reynolds Tobacco Co., a case arising under the Age Discrimination in Employment Act of 1967 (ADEA). In Villarreal, the court was asked to consider whether the ADEA permits job applicants who have been disadvantaged in the hiring process because of their age to bring disparate impact claims. The Eleventh Circuit ruled against Villarreal, holding that the ADEA only creates a disparate impact cause of action for existing employees, not job applicants. The Supreme Court’s refusal to grant certiorari means that the Eleventh Circuit’s decision will stand and, for now, the issue will remain open to interpretation by lower courts and the other Circuits.

In 2007, Richard Villarreal applied for a position as a territory manager at R.J. Reynolds, a large tobacco manufacturer and distributor. R.J. Reynolds rejected Villarreal, who was 49 years old at the time, based on a set of standardized internal guidelines. These guidelines stated that the ideal candidate for the territory manager position would be “2–3 years out of college” and instructed reviewers to “stay away from” applicants whose résumés stated that they had been “in sales for 8–10 years.”

By Owen H. Laird, Esq.

As you may know, many municipalities and local governments have enacted minimum wage increases over the past few years as part of a “fight for $15” campaign. New York City, Los Angeles, and Seattle are a few of the cities that are implementing increases in the minimum wage, ultimately raising it to $15 an hour for most workers. Illinois is in the process of passing a wage bill that would increase the minimum wage statewide.  Proponents of these bills and laws generally take the position that raising the minimum wage will result in higher wages and better working conditions for employees. Two recent studies attempted to assess the economic effects of Seattle’s wage laws and came to strikingly different conclusions.

In January 2016, Seattle increased its minimum wage for large companies to $13 per hour, as part of a series of increases that would ultimately move the minimum wage in the city from $9 per hour in 2014 to $15 in the future.  Two studies—one by UC Berkeley’s Institute for Research on Labor and Employment, the other by economists from the University of Washington—reached opposite conclusions on the impact the increases have had on workers in Seattle, with the Berkeley study finding that workers earned more money and the University of Washington study finding that they earned less.