Edgar M. Rivera

On August 31, 2017, in State of Nevada v. United States Department of Labor, the U.S. District Court for the Eastern District of Texas invalidated the Department of Labor’s final rule, which increased the salary threshold for “white collar” exemptions under the Fair Labor Standards Act (FLSA).

Employers claiming that an employee is exempt under the executive, administrative, or professional exemption from FLSA overtime requirements (called the “white collar” exemptions since they pertain to white-collar workers) must show that the employee performs specific job functions (the duties test) and is paid a salary above a certain threshold (the salary test). Under the Obama Administration, the Department of Labor promulgated a final rule that would double the salary threshold, moving it from $455 a week (or $23,660 annually) to $913 a week (or $47,476 annually). The new salary level is based on the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage and most impoverished U.S. census region—the South—which comprises the states Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Georgia, Florida Tennessee, Kentucky, West Virginia, Maryland, Delaware, Virginia, Washington D.C., North Carolina, and South Carolina. The final rule was intended to go into effect on December 1, 2016.

Owen H. Laird

On Monday, millions of people across the United States enjoyed their Labor Day by doing what people do on Labor Day: getting one last day in at the beach, holding a cookout, spending time with family and friends, catching a baseball game, or any of the other quintessentially American activities that spring to mind when you think of Labor Day.

Labor Day, however, is not “celebrated” in the way most other holidays are.  That is, people do not, generally, take time on Labor Day to consider or observe the meaning of the holiday.  Labor Day is typically viewed as simply a day off marking the end of summer, rather than bearing any special significance about workers’ rights.  With organized labor fading, economic inequality growing, and workers’ rights being curtailed, it is important to remember the origin and significance of Labor Day, and to continue the fight that led to its creation.

Owen H. Laird

Earlier this month marked the twenty-fourth anniversary of the passage into law of the Family and Medical Leave Act (“FMLA”). This groundbreaking piece of legislation has, over the last nearly quarter-century, been among the only federal protections for employees who need to take medical leave to care for themselves or for a family member.

In short, the FMLA allows certain employees, under certain circumstances, to take up to 12 weeks of leave in order to seek treatment for their own serious medical condition or to care for a family member. Without the FMLA, most employees would have no protection in the event of an emergency and would be forced to rely on the goodwill of their employer or—if they had one—a short-term disability policy. The FMLA was trailblazing legislation at the time of its passage and has helped millions of Americans in need from the early years of the Clinton administration through today. However, much still needs to be done to protect people in the workplace who need to take time off because of a medical issue.

Edgar M. Rivera, Esq.

On August 22, 2017, in Edwards v. Nicolai, the First Department Appellate Division—the appellate court of the counties of New York and the Bronx—overturned the trial court’s decision to dismiss gender discrimination claims, allowing Plaintiff Dilek Edwards to pursue her claims against Defendants Charles V. Nicolai and his wife, Stephanie Adams, a former Playboy Playmate. Ms. Edwards alleges that Mr. Nicolai and Ms. Adams—co-owners of Wall Street Chiropractic and Wellness (WSCW)—discriminated against her by terminating her employment because she was sexually attractive.

In April 2012, Mr. Nicolai hired Ms. Edwards as a yoga and massage therapist. According to Ms. Edwards, her relationship with Mr. Nicolai was “purely professional,” and Mr. Nicolai “regularly praised Plaintiff’s work performance throughout her period of employment.” In June 2013, however, Mr. Nicolai allegedly “informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.” Approximately four months later, Ms. Adams sent Ms. Edwards a text message stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Ms. Edwards allegedly received an email from Mr. Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

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.