Owen H. Laird, Esq.

We regularly write about overtime issues for employers and employees.  The Fair Labor Standards Act (FLSA) creates a baseline right to overtime for millions of employees, and many states have enacted their own labor laws to enhance those rights.

However, the FLSA and its state counterparts do not require employers to pay all employees overtime; these statutes include large swaths of workers who are “exempt” from the overtime pay requirements.  For example, the FLSA includes exemptions for “professional” employees, which includes individuals such as doctors, teachers, architects, and most employees who need to have an advanced degree; “executive” employees, which includes many individuals who have managerial or supervisory responsibilities; “administrative” employees, which includes individuals who, roughly, perform office work related to the employer’s business operations and can function autonomously; and more specific exemptions for certain industries, such as outside salespeople and agricultural workers.  These exemptions are complex, and the single-sentence summary above does not do justice to the millions of hours that thousands of attorneys have spent litigating these issues.  In short, lawyers, judges, and administrators must look at an employee’s specific job responsibilities to determine whether they are exempt or not.

Lev Craig

Last year, we reported on North Carolina’s Public Facilities Privacy & Security Act, better known as “HB 2.” HB 2, which was passed in March 2016, required North Carolina public schools and agencies to separate bathrooms by “biological sex,” preventing many transgender people from using the bathroom consistent with their gender identity. In the wake of the passage of HB 2, many companies reduced or withdrew their business in North Carolina, and musicians and speakers cancelled scheduled events in protest of the new law. The state was even drawn into conflict with the federal government when, in May 2016, the United States filed suit against the State of North Carolina and Pat McCrory—the state’s Republican governor at the time—on the grounds that HB 2’s “bathroom provision” violated several federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964.

The widespread opposition to HB 2 caused a serious hit to North Carolina’s economy and reputation, and in the year and a half since the law was passed, a number of North Carolina politicians and activists have pushed to repeal it. In March 2017, North Carolina repealed HB 2 with the passage of HB 142. The new bill was hampered, however, by two significant concessions to Republican legislators: a provision stating that regulating “access to multiple occupancy restrooms, showers, or changing facilities” would be left to the state, and a provision prohibiting local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” These components of HB 142 mean that transgender North Carolinians remain vulnerable to discrimination; the state retains its power to control bathroom access, and local governments aren’t able to pass their own laws protecting LGBT constituents from discrimination in the workplace or public accommodations.

Edgar M. Rivera, Esq.

The U.S. Equal Employment Opportunity Commission (EEOC), which promotes equality and diversity in the workplace by enforcing federal laws prohibiting employ­ment discrimination, strongly closed out the 2017 fiscal year with 202 actions, 184 merits lawsuits, and 18 subpoena enforcement actionsnearly 100 more lawsuits than in 2016. In fact, the EEOC filed more lawsuits in the last three months of 2017 than it did during all of 2016, with 88 in September alone.

While claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) still account for most of the agency’s filings, the EEOC brought 77 cases under the Americans with Disabilities Act (ADA) this year, making the ADA the second most active statute. Between 2015 and 2016, the EEOC’s disability charges increased by 6 percent and were the third largest category of charges filed: retaliation – 42,018 (45.9 percent); race – 32,309 (35.3 percent); disability – 28,073 (30.7 percent) (Most filings include multiple charges, explaining how the above adds up to more than 100%). It follows that now, in 2017, disability claims make up a larger portion of the EEOC’s docket.

Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

Lev Craig

On September 29, 2017, the U.S. District Court for the Northern District of Illinois dismissed all claims in Demkovich v. St. Andrew the Apostle Parish, finding that the First Amendment’s “ministerial exception” precluded a gay music director at a Catholic church from bringing wrongful termination claims after he was fired just days after marrying his male partner.

In 2012, St. Andrew Parish and the Archdiocese of Chicago hired Sandor Demkovich as music director, choir director, and organist, where he was responsible for selecting and performing music played during mass at St. Andrew. Reverend Jacek Dada, the pastor at St. Andrew, knew that Demkovich was gay and engaged to a man. But shortly before Demkovich married his now-husband in September 2014, Demkovich’s coworkers told him that Reverend Dada intended to ask him to resign after the wedding and had already started telling St. Andrew employees that Demkovich had been fired.

Lev Craig

On September 26, 2017, the U.S. District Court for the District of Connecticut denied defendants’ motion to dismiss in Shakerdge v. Tradition Financial Services, Inc., allowing Jo Layla Shakerdge to move forward with her claims that her previous employer, Tradition Financial Services (TFS), retaliated against her for filing a complaint about discrimination at TFS by sabotaging her subsequent job search.

Shakerdge was employed as an energy commodities broker at TFS, a brokerage firm, where she alleges that she was subjected to sexist and racist comments and sexual harassment. Shakerdge describes a workplace that “objectified and degraded women”: her male coworkers allegedly openly viewed pornography on their computer screens, made offensive comments about TFS clients and employees, including Shakerdge herself, and subjected Shakerdge to physical sexual harassment, including an incident where TFS’s CEO attempted to whip Shakerdge with a riding crop Shakerdge had brought to the office to use for horseback riding. After her termination in June 2015, Shakerdge filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO), bringing hostile work environment, wrongful termination, and retaliation claims.

Lev Craig

On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Owen H. Laird, Esq.

The U.S. Supreme Court recently agreed to hear two cases that will have major ramifications for workers across the country. One case threatens one of organized labor’s most important rights, and the other impacts employees of car dealerships nationwide.

The Court agreed to hear arguments on Janus v. American Federation of State, County and Municipal Employees, which concerns a union’s right to take dues from non-members who are in the same bargaining unit as members the union represents. This issue of union dues has been long, and corporate interests have been successful in gradually rolling back organized labor’s ability to raise funds.

Edgar M. Rivera, Esq.

Arbitration between employees and employers favors employers’ interests at employees’ expense. Ostensibly, arbitration merely requires that any employment claims be litigated in a private forum; in reality, it discourages employees from suing their employers because, as compared to litigation, employees are less likely to win and generally recover lower damages. As such, many employers require their employees to sign arbitration agreements.

Indeed, a report from the Economic Policy Institute has found that, since the early 2000s, the number of workers subject to mandatory arbitration has more than doubled, covering 60 million U.S. private-sector non-union workers. These agreements prevent 55 percent of U.S. workers from accessing the courts to protect their employment rights.  This figure increases to 65.1 percent among large companies—those with 1,000 or more employees.  Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that about 25 million employees also lose the right to address widespread employment rights violations through class action.  For large companies, the number of employees subject to class action waivers increases to 41.1 percent. In total, 23.1 percent of private-sector non-union employees no longer have the right to bring or participate in a class action against their employers.

Edgar M. Rivera, Esq.

On May 4, 2017, Mayor Bill de Blasio signed a law prohibiting employers from inquiring about a prospective employee’s salary history, which goes into effect on October 21, 2017. The Office of the Mayor hopes that preventing employers from asking questions during the hiring process about an applicant’s previous compensation—which is often used as a benchmark for a new employee’s starting pay—will end the “perpetuating cycle of suppressed wages” for minorities.

The new law prohibits an employer from asking about or using a job applicant’s compensation history to determine their salary during the hiring process, including the negotiation of a contract. An applicant’s salary history includes their current or prior wage, salary, benefits, or other compensation.  Employers are still allowed to discuss expectations about salary, benefits, and other compensation with a job applicant.  Further, if an applicant, voluntarily and without prompting, discloses their salary history to an employer, the employer may consider that information in determining the applicant’s salary, benefits and other compensation.