Lev Craig

On Wednesday, President Trump rescinded protections implemented by the Obama administration which had, among other things, allowed transgender students to use the school restrooms and facilities corresponding with their gender identity.

Title IX of the Civil Rights Act of 1964 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs, but does not explicitly protect transgender individuals. As a result, Last May, the Obama administration issued guidance regarding transgender students to all public schools in the U.S. in a joint letter from the Departments of Justice and Education. The guidance stated that both departments interpret Title IX’s prohibition against sex discrimination as encompassing “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” and that the departments “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Effectively, the guidance required schools to treat transgender students the same as non-transgender students of the same gender for Title IX purposes—for example, schools could not subject transgender girls to different rules and policies than non-transgender girls.

By Shelby Krzastek and Lev Craig

On May 17, 2016, the Medical Marijuana Act (MMA) took effect in Pennsylvania. The MMA allows patients with certain serious medical conditions—including HIV/AIDS, autism, cancer, and post-traumatic stress disorder—to use marijuana in pill, oil, vapor, liquid, tincture, or topical form to treat their symptoms. Once the MMA is fully implemented in early 2018, Pennsylvania residents with an approved medical condition will be able to apply for a medical marijuana ID card issued by the Pennsylvania Department of Health, which will allow them to legally obtain marijuana for medical use. While the MMA has received praise from many Pennsylvania residents, the act also creates new challenges for employees who become certified to use medical marijuana under the MMA.

Although a growing number of states have legalized marijuana use, marijuana remains illegal under federal law, where it is classified as a Schedule I controlled substance under the Controlled Substances Act. Because marijuana is illegal under federal law, employers are not required to allow employees to use medical marijuana as a reasonable accommodation under the Americans with Disabilities Act. In addition, workplaces that are federally mandated to be drug-free—such as federal contractors and certain safety-sensitive industries—require employees to report positive marijuana test results, even if an employee’s use of marijuana is for medical purposes. As a result, if an employee tests positive for marijuana use, the employer may terminate the employee for failing to comply with drug-free workplace policies.

By Shelby Krzastek

Former UBS Securities, LLC (UBS) employees Shannon Zoller and Alexander Beigelman claim that UBS forced laid-off employees to release claims against UBS to receive deferred compensation to which they were already entitled under their employment contract. The policy allegedly breaches UBS’s employee contract and violates New York and Illinois state labor laws, the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act. On December 12, 2016, Zoller and Beigelman filed a putative class action against UBS in the U.S. District Court of Illinois.

The suit alleges that, in February 2013, numerous subsidiaries of UBS implemented a policy requiring any employee laid off during staff reductions to sign a waiver and release of claims in order to receive previously earned deferred compensation. According to Zoller and Beigelman, UBS hid the policy in an appendix to a document accompanying the employee contract.

Shelby Krzastek

Bill Brown alleges that Stevens Transport, one of the four largest refrigerated trucking companies in the United States, refused to hire him as a truck driver because he takes medication to control his bipolar disorder. On November 30, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit in U.S. District Court for the Northern District of Texas on Mr. Brown’s behalf.

Mr. Brown applied for employment as a driver with Stevens Transport in March 2015. Stevens Transport told Mr. Brown they would not hire him as a truck driver because he regularly took a certain medication to manage symptoms of bipolar disorder, due to a a company policy prohibiting drivers from taking medications including Lexapro, Zoloft, Paxil, Celexa, and Latuda. Mr. Brown objected, as he had fulfilled a course in advanced truck driving and passed the Department of Transportation (DOT) physical that is required to hold a commercial driver’s license (CDL). Mr. Brown claims that neither Stevens Transport nor its physician made an individual assessment of him, as required by the Americans with Disabilities Act (ADA). Mr. Brown’s medical provider issued a report stating Mr. Brown was capable of driving safely while on medication. No U.S. DOT regulations prohibit people who take medication for bipolar disorder from commercial truck driving.

Shelby Krzastek

Bikram Choudhury is an Indian yoga teacher and the founder of Bikram yoga. In recent years, Choudhury has been surrounded by controversy amid allegations of discrimination, harassment, and sexual assault, resulting in multiple lawsuits. On Tuesday, December 13, 2016, a California judge ordered that Bikram Choudhury’s income and ownership of his signature yoga college be turned over to Minakshi Jafa-Bodden to satisfy a $6.7 million judgment in her sexual harassment case against him.

Minakshi Jafa-Bodden, Choudhury’s former in-house attorney, filed a sexual harassment and wrongful termination suit against Choudhury in 2013. According to Jafa-Bodden’s complaint, Choudhury degraded and harassed female students and employees, forced Jafa-Bodden to meet with him in his hotel room at night while female students massaged him, and, on one occasion, insisted that Jafa-Bodden join him on his bed during a meeting. Jafa-Bodden claims that, in addition to the sexual harassment she faced, Choudhury retaliated against her for investigating sexual assault allegations against him. In recent years, Choudhury has been surrounded by controversy amid allegations of discrimination, harassment, and sexual assault, resulting in multiple lawsuits.

In January, after a 12-day trial resulting in a verdict in Jafa-Bodden’s favor, a jury awarded Jafa-Bodden $4.6 million in punitive damages and nearly $1 million in compensatory damages for harassment she experienced while working at Choudhury’s Los Angeles headquarters. The jury also found in Jafa-Bodden’s favor with respect to her unlawful termination claim, finding that her complaints to higher-ups at Choudhury’s organization about the ongoing sexual harassment and gender discrimination had been a substantial reason for her termination.

Yet after the trial verdict, Choudhury refused to pay any of the award—and, in fact, fled the United States to avoid payment of this judgment. Earlier this month, on Tuesday, December 13, 2016, Los Angeles Superior Court Judge Mark A. Borenstein approved Jafa-Bodden’s request to divert to her the income Choudhury receives from agreements with vendors, yoga studio franchise agreements, and royalty and licensing payments based on his trademark, copyrights, and other intellectual property. The Court also granted a charging order to give Jafa-Bodden her former employer’s ownership interest in Bikram Yoga College of India.

Judge Borenstein also signed off on the appointment of a post-judgment receiver tasked with seizing and selling Choudhury’s trademarks, copyrights, and web domain names. Jafa-Bodden is also seeking several dozen luxury vehicles allegedly owned by Choudhury to satisfy the judgment, along with his diamond-encrusted watch and any remaining stocks or other investments of which he retains control.

All employees have the right to a workplace free of sexual harassment and gender discrimination. If you have been the victim of sexual harassment or gender discrimination in the workplace, contact the experienced employment attorneys at The Harman Firm, LLP. Continue Reading

Lev Craig

Last week, we blogged about proposed legislation that would open up health insurance benefits to New Yorkers who are members of the so-called “gig economy,” an emergent employment sector that is moving away from traditional employer-employee relationships in favor of short-term, task-based work. The New York City Council recently passed the Freelance Isn’t Free Act, a new bill—the first of its kind in the country—which creates protections for gig economy workers and freelancers in the New York metropolitan area.

A “gig” is defined by the U.S. Department of Labor as a “single project or task for which a worker is hired, often through a digital marketplace, to work on demand. While gig jobs and career paths have always existed—music, for instance, or graphic design—technological developments in the past decade have made it unprecedentedly easy for companies and clients to connect with a network of freelancers via websites and mobile apps. Services like Uber and TaskRabbit allow workers to pick up individual gigs, like driving a client to a destination or cleaning a client’s apartment, at their discretion. Nontraditional employment arrangements constitute a rapidly growing share of the labor force: a 2014 survey found that 34% of U.S. workers were engaged in some type of freelance work. Freelance work is particularly popular in the New York metropolitan area, which is home to an estimated nearly 4 million freelancers.

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.