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May 17th, 2012
The U.S. District Court for the District of New Hampshire recently reexamined the nature of the First Amendment rights of government employees. Chatel v. Lieutenant James Carney arose from the termination of Officer Louis Chatel from the Police Department in Weare, New Hampshire. Following his termination Officer Chatel filed suit against the Police Department claiming that he was terminated in violation of his First Amendment rights for his refusal to alter a police report in an undercover investigation.
Chatel wrote the contested police report at the request of his supervisor. The report was a narrative regarding Officer Chatel’s interviews with two suspects in a drug investigation. A few days after Officer Chatel submitted the report his supervisor requested that he remove a statement that (based on information Chatel had in his possession) the suspect would be charged with possession of controlled drugs, possession with intent to sell, transportation of controlled drugs and forgery. Chatel initially refused to remove the statement and then later made the requested change. Officer Chatel then filed a grievance against his supervisor and was later terminated. He then filed this suit alleging that his refusal to alter the report was protected by the First Amendment.
A public employee speaking in an official capacity does not receive the same First Amendment protection as a person speaking in the capacity of a private citizen. In determining whether a plaintiff made a particular statement in an official capacity, courts examine whether the speech was made pursuant to the employee’s professional responsibilities. In particular, courts examine whether an employee was on duty and in his work place at the time of the speech, although this factor is not determinative.
Officer Chatel did not dispute that his duties as a prosecutor included preparing narrative reports. He argued, however, that his refusal to submit an inaccurate report and his attempt to alert the county attorney’s office to the inaccuracy had a “citizen analogue” and was therefore protected. In support of his argument Officer Chatel cited the case of Jackler v. Byrne in which the Second Circuit held that a police officer’s refusal to alter his own witness statement had a civilian analogue. In Jackler, a probation officer had witnessed two other officers commit an assault and then refused to alter his account of the assault to cover up the criminal behavior of the other officers. The New Hampshire District Court rejected Officer Chatel’s argument, stating that, in this case, Chatel was not acting in any way that could be considered analogous to a witness of a crime or any other civilian.
Instead, the court found that Officer Chatel’s “statement” in refusing to alter the police report was speech made in his official capacity for the purposes of the First Amendment. Officer Chatel’s duties included drafting, editing, and finalizing narrative reports of interviews with suspects. His refusal to alter a report was therefore directly related to his official duties as a police prosecutor. Accordingly, the court held that Officer Chatel’s statement was not deserving of First Amendment protection.
Tags: First Amendment, Free Speech of Public Employees, Weare Police Department
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May 1st, 2012
The United States Court of Appeals for the First Circuit recently ruled what it described as “two of the many private lawsuits brought against healthcare providers throughout the country by a single law firm.” The plaintiffs sought to represent a potential class of hospital employees alleging a number of wage and hour violations, and related claims alleging fraud, negligent misrepresentation, and contract violations. The court found that the federal Labor Management Relations Act, which gives federal courts jurisdiction over suits for violation of collective bargaining agreements, pre-empted the plaintiff’s claims. Thus, the court ruled that the state law claims that depend at least in part on the interpretation of a collective bargaining agreement were properly removed to the federal court.
The court then turned to the question of whether such claims were properly dismissed so that the parties could pursue the remedies, such as arbitration, provided for in the applicable collective bargaining agreement. The court found that those claims that are “sufficiently intertwined” with the collective bargaining agreement would require the use of the processes provided for in the collective bargaining agreement. This would include state regulatory claims if (but only if) the issue before the court depended on interpretation of the collective bargaining agreement.
For example, the plaintiff’s claim under the Massachusetts Weekly Wage Act, requiring timely payment of wages, depended on figuring what wages were owed to the plaintiffs under the collective bargaining agreement. Therefore, this claim was properly dismissed for resolution by arbitration under the terms of the collective bargaining agreement. On the other hand, if there had been no dispute as to the amount owed, and the parties were merely litigating whether the wages owed were timely paid under state law, the collective bargaining agreement would not have been implicated and dismissal would not have been inappropriate.
In sum, many wage and hour claims, whether framed in terms of common law or regulatory law, may in fact be sufficiently related to a pending collective bargaining agreement to be properly resolved by a federal court and/or by the processes, such as arbitration, provided for in the applicable collective bargaining agreement. This may be true even if the claims do not specifically refer to the collective bargaining agreement, as long as the claims do in fact hinge on the interpretation of said agreement.
Cavallaro v. UMass Memorial Health Care, Inc., Nos. 110-1073 and 11-1793 (April 18, 2012).
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April 16th, 2012
The Supreme Court recently denied certiorari in a significant case dealing with the construction and application of the Federal tip credit under the Fair Labor Standards Act to non-tip producing activities. Under the Fair Labor Standards Act, an employer is permitted to credit a tipped employee’s tips towards their minimum wage salary so long as the minimum cash wage paid by the employer is no lower than $2.13 per hour.
In Fast v. Applebee’s International, 5,500 Applebee’s wait staff and bartenders claimed that the chain violated the FLSA by paying them the tip credit rate instead of the minimum wage for time spent working on preparation activities such as cleaning and rolling silverware that did not produce tips. Applebee’s moved for summary judgment claiming that it was entitled to pay employees the tip credit rate for time spent performing any incidental activities. The plaintiffs argued that they were entitled to the minimum wage when they spent more than 20% of their time performing side work and the District Court agreed.
Applebee’s then filed an interlocutory appeal to the Eighth Circuit. The main issue on appeal was whether the Department of Labor’s (“DOL”) interpretation of the federal law was entitled to deference. The DOL has promulgated a Field Operations Handbook that states that an employer may not take a tip credit where an employee spends more than 20% of their time doing non tip producing activities. Applebee’s argued that since neither the statute or the federal regulations imposed a quantitative limit on the amount of time a tipped employee may spend performing duties incidental to their occupation, the Department of Labor did not have the authority to impose such a constraint.
The Eighth Circuit disagreed with Applebee’s and instead found that the DOL’s interpretation was controlling. The court found that due to ambiguities in the statute as to how much time could be spent on side work, the DOL was entitled to issue an interpretation and the interpretation issued by the DOL was consistent with the Fair Labor Standards Act and the controlling federal regulation. The Eighth Circuit, however, declined to elaborate on which activities qualified as incidental to the wait staff and bartender positions held by the class of plaintiffs.
Applebee’s attempted to appeal the decision to the Supreme Court, but in January of 2012 the Court declined certiorari, leaving the Eighth Circuit’s decision untouched. In light of this decision, employers of tipped employee’s should ensure that they carefully follow the rules pertaining to tip credits as outlined by the Fair Labor Standards Act, the federal regulation, and the Department of Labor’s Field Operations Handbook.
Tags: Department of Labor, Department of Labor Field Operations Handbook, Side work, Tip Credit
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April 13th, 2012
Q: Are Seasonal Workers Entitled to the Minimum Wage?
A: Yes. A seasonal worker is generally subject to the Fair Labor Standards Act and must be paid the Federal minimum wage of $7.25 as well as overtime of 1.5 their hourly rate for any time worked over 40 hours in a given week.
Q: Can a Seasonal Worker Receive Unemployment Compensation?
A: Yes, in New Hampshire a seasonal employee may receive unemployment compensation.
Q: Who is a Seasonal Worker for the Purposes of Unemployment Compensation?
A: In New Hampshire, a seasonal worker is a person whose work is seasonal in nature such that similar work is not reasonably available during the off season. For example, paving equipment operators are typically laid off when weather conditions prohibit paving activities. Since there is not similar work available in the area because of these seasonal weather patterns, the paver would be considered a seasonal worker.
Q: Does a Seasonal Worker Have to Search For Work In the Off Season to Be Eligible For Unemployment Compensation?
A: Not necessarily. In New Hampshire, if the worker’s services are seasonal in nature, they do not have to conduct an off-season work search to be eligible for unemployment. In contrast, a worker who was simply most recently employed by a seasonal employee must still conduct an off-season work search.
Tags: minimum wage, Seasonal workers, unemployment compensation
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April 13th, 2012
Q: What Is Side work?
A: Side work is a term used to describe all of the tasks a server is required to perform to prepare the restaurant for public enjoyment. In other words, side work includes all of a server’s duties aside from waiting on customers and serving food.
Q: Who performs side work?
A: Every employee in a restaurant performs at least some side work, but the nature of the work may differ depending on an employee’s position.
Q: Why is Side Work Important?
A: The type and amount of side work an employee perform determines whether an employer can take a tip credit for the employee’s work. Under Federal law, Employees working in a “tipped occupation” are required to receive at least that minimum wage; however, their employers are permitted to pay a direct wage of $2.13 per hour, 29 U.S.C. § 203(m), and then take a “tip credit” to meet the $7.25 per hour minimum wage requirement. In New Hampshire, the tip credit wage rate is $3.27 per hour instead of the $2.13 required by Federal law. An employee however, must be engaged in work related to their tipped occupation for a tip credit to be permitted. A tip credit is therefore only permitted for side work that is “incidental” to an employee’s tip producing activities. An employer must pay the full minimum wage for any side work that is not incidental to an employee’s tip producing activities.
Q: Which Side Work Duties Are Considered Incidental to Tip Producing Activities?
A: The side work duties that will be considered incidental to tip producing activities depends on the occupation of the employee. There is no set list of duties that are considered incidental to each job in a restaurant, but the Department of Labor’s Field Operations Handbook advises that making coffee, cleaning and setting tables, rolling silverware, cleaning work stations and occasionally washing dishes or glasses will usually be considered incidental to the job of a waiter or waitress. In comparison, cleaning a restaurant’s bathrooms will generally be considered not incidental to a waiter or waitress job, meaning that the employer cannot take a tip credit for that time.
Q: How Much Side Work Can an Employee Perform and Still Be a Tipped Employee?
A: According to the Department of Labor’s Field Operations Handbook, an employee may be considered a tipped employee so long as under 20% of an employee’s time is spent doing side work. If an employee spends over 20% of their time doing side work, no tip credit may be taken for those duties. A tip credit may still be taken, however, on the time that the employee does spend engaged in tip producing activities.
Q: What Happens If A Tip Credit Is Taken For Side Work That is Not Incidental to Tip producing Activities?
A: Taking a tip credit for side work that is not incidental to tip producing activities is a violation of the Fair Labor Standards Act for paying an employee less than the minimum wage. Employers who violate the Fair Labor Standards Act may be liable for back wages and civil penalties.
Tags: Side work, tips
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April 13th, 2012
CHILD LABOR LAWS
Q: Who is considered a child or underage employee under the child labor laws?
A: Any employee under 18 is considered a minor, and their employment is subject to restriction by Federal and State laws.
Q: Which child labor law do I apply when the Federal and State rules are not the same?
A: Where Federal and State law differ, an employer should apply the rule that is more protective of the minor.
Q: Can I employ a minor?
A: Yes, under Federal law it is permissible to hire a minor that is over 14 years of age. Under New Hampshire state law the minor must be at least 12.
Q: Do I have to obtain working papers from a minor employee?
A: Not under Federal law. Under New Hampshire law, employees under 16 years old must present a “Youth Employment Certificate” to the employer within 3 business days of commencing their employment. Youth Employment Certificates are not required for employees between 16 and 18 years. Instead, an employer must obtain a signed permission form from the parents of employees between 16 and 18. The employer must keep the form on file.
Q: Who issues a Youth Employment Certificate?
A: Youth employment certificates are issued by a minor employee’s school principal. A school is only allowed to issue a certificate after making a determination that the student meets a satisfactory level of academic performance.
Q: Can I pay an underage worker less than the Minimum Wage?
A: No. Where it is permissible to hire an underage worker, they must receive the statutory minimum wage. However, under Federal law, an employer may pay employees under 20 years old a special minimum wage of $4.25 per hour during the first 90 days of their employment. After the first 90 days the Fair Labor Standards Act requires an employer to pay the full federal minimum wage.
Q: Are there times when an underage worker is not permitted to work?
A: Yes. Federal law only imposes time restrictions on 14 and 15 year old workers.
This age group may only be employed during non-school hours and can work only 3 hours on a school day and 8 hours on a non-school day with a maximum total of 18 hours on a school week and 40 hours on a vacation week. 14 and 15 year olds are also only allowed to work between the hours of 7 a.m. and 7p.m. but these hours are extended until 9 p.m. between June 1st and Labor Day.
In New Hampshire, workers under 16 cannot work before 7a.m. or after 9p.m. and they can only work three days a week during the school week. During vacations, a worker under 16 is limited to 48 hours per week. Workers ages 16 and 17 are likewise only permitted to work 48 hours a week during vacations and cannot be employed for more than 6 consecutive days in one week.
Q: What are the penalties for violating the Child Labor Laws?
A: Under Federal law, employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions of the Fair Labor Standards Act. Additionally, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee. Where the violation is determined to be willful or repeated these penalties may be doubled, so long as the amount does not exceed $100,000.
In New Hampshire, an employer who violates the youth labor laws will be guilty of a misdemeanor and will be subject to civil penalties of no more than $2,500 per violation.
Q: When is an underage worker permitted to serve alcohol?
A: In New Hampshire, an employee who is over 18 may serve alcohol and pour alcohol in a restaurant. A restaurant that also sells package liquor as part of its operation may employ a worker as young as 16 to work as a cashier selling liquor so long as a supervisory employee who is at least 18 is in attendance .
Tags: Child Labor Laws, minors, youth employment
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April 10th, 2012
The New Hampshire Senate Commerce Committee will hear House Bill 1574 this morning, which would increase the number of hours an employee may be required to work before being granted a half hour lunch break from 5 hours to 6 hours. New Hampshire’s current statute, RSA 275:30-a, requires that every employee within the scope of the statute be granted a lunch break, except for where it is feasible for the employee to eat during the performance of their work and the employer permits them to do so. HB 1574 narrowly passed the House on a vote of 168-161.
Tags: Mandatory Lunch Breaks, New Hampshire Lunch Break Law, RSA 275:30-a
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March 30th, 2012
The use of Facebook as a tool to evaluate job applicants has received national attention this week amidst recent reports that employers have begun requesting applicants’ Facebook passwords during job interviews. It has become common practice over the past few years for employers to look at a job applicant’s social networking profiles to learn more about an applicant. But many users of sites like Facebook use privacy settings to allow the public to only view a small portion of their profiles. Some employers have attempted to get around these privacy settings by asking a job applicant for their Facebook password, or to simply login to the site during their interview.
The legality of this practice is questionable at best. Facebook profiles often contain information about a user’s status as a member of a protected class such as their race, religion or sexual orientation, that could expose an employer to liability for discrimination if they subsequently decline to hire the applicant. New York Senator Charles Schumer and Connecticut Senator Richard Blumenthal have also voiced concerns that asking for Facebook login information may violate the Stored Communications Act or the Computer Fraud and Abuse act and are asking Attorney General Eric Holder, and the Equal Employment Opportunity Commission to investigate the practice. The Stored Communications Act prohibits intentional access to electronic information without authorization and the Computer Fraud and Abuse Act bars intentional access to a computer without authorization to obtain information.
Officials at Facebook itself have also spoken out against the practice and have announced that soliciting a user’s login information violates Facebook’s terms and conditions. In further support of its position that gaining access to a job applicant’s user information is an improper use of the website, Chief Facebook Privacy Office Eric Egan, stated that “as a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job… We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do.”
Tags: Employer Access to Facebook, Facebook, Using Facebook in the Hiring Process
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March 22nd, 2012
The U.S. District Court for the District of Columbia recently upheld the National Labor Relations Board’s (“NLRB”) rule requiring all private sector employers covered by the National Labor Relations Act (“NLRA”) to post notices notifying employees of their right to unionize as well as their right to strike and picket. The NLRB Rule further makes an employer’s failure to post the required notices a per se unfair labor practice under the NLRA.
As previously discussed on this blog space, many employers across various industries have objected to the posting requirement announced by the NLRB this past fall, as an unfair and disruptive intrusion by the NLRB into the workplace, essentially advocating for unionization. The National Association of Manufacturers (“NAM”) filed the instant lawsuit against the poster requirement on September 8, 2011, seeking an injunction to strike down the posting regulations as unlawfully exceeding the jurisdiction of the NLRB. On September 19, 2011, the United States Chamber of Commerce and the South Carolina Chamber of Commerce filed a second lawsuit seeking injunctive relief, as well as a declaratory judgment that the poster requirement violates various statutes. As a result of these lawsuits, the NLRB moved the effective date of the rule from November 14, 2011 until April 30, 2012.
In National Association of Manufacturers v. NLRB, the U.S. District Court for the District of Columbia upheld the overall legitimacy of the poster requirement, simultaneously invalidated several provision related to the rule’s enforcement. The Court found that while an employer’s failure to post the required notice could be considered an unfair labor practice under the NLRA, it could not be viewed as a per se unfair labor practice. Additionally, the Court found that the provision of the rule equitably tolling the statute of limitations for unfair labor practice charges simply due to an employer’s failure to post the notice was beyond the scope of the NLRB’s authority.
Despite the NAM’s partial victory, the Association has already filed a notice of appeal against the Court’s decision. Regardless, the NLRB notice requirements remains scheduled to take effect on April 30, 2012.
Tags: Employee Rights Under the National Labor Relations Act, Employer Posting Requirements, national association of manufacturers, national labor relations act, national labor relations board, nlra, NLRB, NLRB Poster, NLRB Poster Requirement
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March 20th, 2012
The New York Times is reporting that celebrity chef, Mario Batali has agreed to settle a class-action lawsuit by paying a $5.25 million dollars for alleged violations of state and federal wage law stemming from illegally withholding tips from restaurant employees. The lawsuit is a class-action brought by more than 1,000 restaurant employees, including servers, busboys, runners, and bartenders who worked at Batali-owned restaurants in Manhattan, such as Babbo, Del Posto, Casa Mono, Bar Jamón, Esca, Lupa and Otto. The class-action suit alleged that it was the policy at Batali’s restaurants to deduct an amount equivalent to 4 to 5 percent of total wine sales at the end of each night from the tip pool. Some employees understood that Batali and his business partner kept the money to boost their own profits, while others were told that the withheld tip money was used for wine research or other expenses. Whatever the motivation, if an allegation of withholding tips is true, it is likely to constitute a violation the Fair Labor Standards Act and most state laws. If a federal judge approves the proposed multi-million dollar settlement, the $5.25 million dollars will be divided among the plaintiffs/restaurant employees.
Tags: class action against Batali, class-action wage claim, Fair Labor Standards Act, tipped employees, wage and hour violations, withholding tips
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February 24th, 2012
Based on prior case law and the language of New Hampshire’s consumer protection statute, many have long believed that, in New Hampshire, insurance companies and public utilities were not subject to claims for multiple damages under our state’s version of the Consumer Protection Act. This differs from other states, in particular Massachusetts, where entities that do not fit the typical consumer medical, like an insurer for example, could be hit with claims for treble damages for alleged unfair and deceptive insurance practices. That said, the New Hampshire Supreme Court over the past 20 or so years has managed to issue a series of inconsistent rulings that have muddled this issue.
The New Hampshire Supreme Court recently made a significant ruling in Rainville v. Lakes Region Water Company, which clarified the issue. In brief, the court ruled that the New Hampshire Consumer Protection Act does not apply to alleged fraudulent conduct by regulated utility companies. This dramatically affects the potential liability to insurance companies and public utilities in New Hampshire as it allows them to avoid potential liability for penalties, multiple damages and attorneys’ fees in a case where they might otherwise have faced significant damages from a large number of plaintiffs. Between the analysis of the facts in this case and another recent decision, the Court goes through a fairly detailed analysis of what is and is not exempt from the Act.
Tags: Fraudulent Conduct, Multiple Damages, New Hampshire Consumer Protection Act, New Hampshire Supreme Court, Regulated Utility Companies
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February 16th, 2012
The U.S. Equal Employment Opportunity Commission (“EEOC”), just recently issued a series of Questions and Answers which clarified an earlier EEOC informal discussion letter about ADA requirements for employers who require applicants to have high school diplomas to qualify for certain jobs.
That November 17, 2011 letter opined that an employer who made high school graduate a job requirement may well violate the Americans with Disabilities Act (“ADA”), unless the employer could demonstrate that the requirement was 1) job related and 2) consistent with business necessity. The earlier EEOC letter also said that to the extent a learning disability prevented the job applicant from meeting the high school graduation requirement, the employer might also have to have to make an individualized determination whether a particular applicant could perform the essential functions of the job, with or without an accommodation, before the employer could deny the applicant a job on the basis of the failure to complete high school.
Now, the EEOC has clarified that its earlier letter did not make it illegal, per se, for businesses to require a high school diploma for a job. Rather, according to the EEOC’s recent Q & A discussion, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way. The new Q & A from the EEOC also made clear that its earlier opinion letter did not create protection in the ADA for people who do not graduate from high school, unless a disability as defined by the ADA was the reason that it was impossible for the job applicant to obtain a high school diploma. The Q & A’s issued by the EEOC also stated that an employer is not required to hire a person who is unable to graduate from high school because of a disability. The new EEOC Q & A’s do provide that as with any job criteria which may tend to screen out persons with disabilities, an employer who requires a high school education may have to evaluate whether there exists an ADA reasonable accommodation to allow a learning disabled person to perform the essential functions of the job. According to the EEOC:
Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.
The complete text of the EEOC’s Q & A can be found here.
Tags: ADA, ADA EEOC, ADA Job Description Requirements, ADA Learning Disability, Americans with Disabilities Act, EEOC, EEOC Questions, Equal Employment Opportunity Commission, Reasonable Accommodations
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February 10th, 2012
The Ninth Circuit recently upheld a California district court’s grant of summary judgment against a corporate owner of restaurant where copyrighted songs were performed without the artists’ permission. In Range Road Music, Inc., v. East Coast Foods, a group of copyright owners filed suit against the owners of Roscoe’s House of Chicken n Waffles (“Roscoe’s”) following a private investigator’s visit to the restaurant’s lounge where the investigator heard a live band perform several copyrighted “Coltrane standards” and a disc jockey play another set of copyrighted songs from a compact disc. The defendants, Herbert Hudson and East Coast Foods, argued that the plaintiffs had failed to state a claim for vicarious infringement liability because the restaurant at issue was owned by Shoreline Foods, an independent corporate entity.
The Ninth Circuit rejected the defendant’s argument on the grounds that the defendants’ had the requisite control over the restaurant to impose liability. To impose vicarious liability on a defendant for copyright infringement, a plaintiff must establish that the defendant exercises the requisite control over the direct infringer and that the defendant derives a direct financial benefit from the direct infringement. Control exists where the defendant has a legal right to stop or limit the directly infringing conduct as well as the practical ability to do so. The Court found that the evidence clearly demonstrated that the defendants exercised control over the restaurants and derived a financial benefit from the musical performances at the lounge as Herbert Hudson was the president of both East Coast Foods and Shoreline Foods. Furthermore, East Coast foods had managerial authority over Roscoe’s, and issued the paychecks of the restaurant’s employees. Accordingly, the Ninth Circuit affirmed the district court’s decision that the defendants were liable for copyright infringement.
In light of the Ninth Circuit’s decision in Range Road Music, Inc., restaurant owners should proceed carefully in allowing the performance of live music in their establishments. An owner of an establishment where live music is played should attempt to ensure that all publicly performed music is either not under copyright protection, or the appropriate licenses have been obtained.
Tags: Copyright Infringement, Live Music in Restaurants, Public Performance, Roscoe’s Chicken n Waffles, Vicarious Liability
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February 9th, 2012
The First Circuit recently refused to overturn a jury’s finding of retaliation under the Age Discrimination in Employment Act (“ADEA”) despite the defendant’s claims that the plaintiff had not established a prima facie case. In Munoz v. Sociedad Espanola de Auxilio Muto Y Beneficiencia De Puerto Rico, the Plaintiff was a cardiologist who was terminated by the defendant-Hospital one day after the Plaintiff was deposed in a lawsuit against the hospital for age discrimination. The Plaintiff then promptly filed a second suit against the Hospital claiming that he was terminated in retaliation for his pending age discrimination suit. The jury agreed with the Plaintiff and awarded him nearly $2 million. On appeal, the Hospital argued that its renewed motion for judgment as a matter of law should have been granted with respect to the Plaintiff’s retaliation claim because the Plaintiff had failed to establish a prima facie case of retaliation or any evidence of a causal connection between his protected conduct and his termination.
The First Circuit rejected the Hospital’s argument that judgment as a matter of law should be granted for the Plaintiff’s failure to make out a prima facie case on the grounds that it was “not the correct focus at this juncture.” The McDonnell-Douglas framework that requires the plaintiff to prove a prima facie case before putting the burden of proof on the defendant “is not a religious rite” but “merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of retaliation.” Once the question of retaliation has been submitted to the jury “backtracking serves no useful purpose.” The First Circuit therefore held that its correct focus on appeal was whether a jury reasonably could have inferred by a preponderance of the evidence that the Plaintiff was terminated because of his protected conduct.
The First Circuit went on to reject the Hospital’s argument that the Plaintiff had failed to establish the causal connection required to prove retaliation on the grounds that the evidence presented at trial was sufficient to support the finding, even if the determination was not “inevitable.” The Hospital’s argument hinged on the fact that Hospital decided to terminate the Plaintiff three weeks before the Plaintiff was deposed in his age discrimination case, claiming that the causal element of retaliation was therefore lacking in the Plaintiff’s claim. Although the Court agreed with the Hospital that an adverse employment action pre-dating the protected activity generally cannot support a retaliation claim, it found that the remainder of the evidence presented at trial supported the jury’s finding. Accordingly, the First Circuit affirmed the trial court’s decision.
Tags: Age Discrimination in Employment Act, Causal Connection, Judgment as a Matter of Law, McDonnell Douglas framework, Prima Facie Case, Retaliation.
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January 26th, 2012
For the second year in a row, there were a record number of private sector discrimination claims lodged in the EEOC in 2011, breaking the record set in 2010 by a small margin. The EEOC also announced that relief to workers in the form of settlements and as a result of litigation exceeded $455 million. This number exceeds the relief from 2010 by over $50 million and continues an upward trend in settlement and litigation awards to workers alleging discrimination. The EEOC itself filed 300 lawsuits and obtained over $90 million in awards to workers, reflecting another increase in the money recovered by the EEOC’s own litigation efforts.
For the second straight year, retaliation claims represented the largest single category of allegations of discrimination. This represents only the second time, along with 2010, that retaliation claims have constituted the largest category. Allegations of race and sex discrimination decreased, while allegations of disability and age discrimination increased. Age discrimination claims also represented the category of allegations resulting in the largest amount of money awarded, increasing my almost $30 million dollars. The largest subset of disability claims were made up of back impairments.
This was also the first full year that the EEOC has enforced the Genetic Information Nondiscrimination Act. This Act seeks to prevent discrimination based upon the genetic information of employees, which includes genetic diseases in their family histories. The EEOC received 245 charges under this Act, but none have yet proceeded to litigation.
The clear trend over the past few years reflects an increase in allegations of workplace bias and discrimination to record levels. These increases provide new challenges for employers as they attempt to navigate through this difficult economy. In any event, it provides a very real warning that employers must take workplace discrimination laws seriously, and enact workplace policies to prevent such conduct.
Tags: bias, discrimination, EEOC, employment policy
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January 20th, 2012
The Massachusetts Department of Public Health and the Department of Fish and Games Division of Marine Fisheries recently announced that they are considering using DNA testing to prevent fish mislabeling and are launching a pilot program in partnership with Legal Sea Foods that would trace seafood using barcodes. The announcement follows the results of the Boston Globe’s five month investigation revealing extensive seafood misrepresentation at Boston area restaurants. Seafood mislabeling puts consumers at risk by violating dietary restrictions, permitting customers to ingest chemicals banned in the United States, and increasing the potential for customers to suffer allergic reactions. The pilot programs will enhance trace-back procedures by using barcoding to follow fish products through the production system. The pilot programs will be accompanied by a statewide education and outreach effort by the Department of Public Health that will be aimed at alerting local officials and industry partners about the laws related to the sale of fish and fish products.
Tags: Boston Globe Seafood Investigation, DNA testing, Fish Barcodes, Seafood Mislabeling, Trace-Back Procedures
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January 12th, 2012
On Wednesday, the Supreme Court unanimously held that the First Amendment precludes the application of the federal employment discrimination laws to religious institutions. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Cheryl Perich, a teacher at a Lutheran Church and School developed narcolepsy and began the first semester of the 2004-2005 school year on disability leave. When Perich attempted to return to work in January 2005, the principal told her that the school had already contracted with another teacher to fill her position for the remainder of the school year. The school subsequently terminated Perich.
Perich filed a charge with the Equal Employment Opportunity Commission claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The District Court granted the school’s motion for summary judgment on the grounds that the ADA claim was barred by the First Amendment. The Sixth Circuit vacated and remanded on the grounds that Perich did not qualify as a minister under the exception. The Supreme Court reversed.
In a majority opinion written by Chief Justice Roberts, the Court acknowledged the existence of a ministerial exception grounded in the First Amendment that precludes the application of federal law to claims concerning the employment relationship between a religious institution and its ministers. The Court reasoned that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, interferes with the internal governance of the church and therefore the right of the religious group to shape its own faith and mission.
The Hosanna-Tabor Court further determined that the application of the ministerial exception was not limited to the head of a religious congregation. It refused however, to adopt a rigid formula for deciding when an employee qualifies as a minister within the scope of the exception. Instead, the Court examined the circumstances of Perich’s employment in reaching its determination that she qualified as a minister. In particular, the Court considered the formal title of “Minister of Religion” given Perich by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church. Accordingly, the Court concluded that Perich’s ADA claim was barred under the ministerial exception of the First Amendment.
The Hosanna-Tabor decision only applies to employment discrimination suits brought on behalf of a minister challenging their termination. The Court refused to state a view on whether the ministerial exception bars other types of suits such as actions by employees alleging breach of contract or tortious conduct by their religious employers claiming that “there will be time enough to address the applicability of the exception to other circumstances if and when they arise.”
Tags: Americans with Disabilities Act, First Amendment, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Ministerial Exception, Religious Schools
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January 9th, 2012
A New York Supreme Court Justice recently determined that a former partner of Holland and Knight, LLP was not protected by State and federal discrimination laws because he did not qualify as an “employee.” In Weir v. Holland & Knight, LLP, the former partner claimed that his expulsion from the firm at age 55 constituted age discrimination in violation of the Age Discrimination Act (ADA) and New York state law. In rendering its decision, the Court relied on a six part test that was originally created by the Supreme Court in Clackmas Gastroentorology Assoc., P.C. v. Wells, to determine whether a shareholder of a professional corporation was an employee for the purposes of the ADA. The six factors include: examination of whether the individual can be fired, if they report to someone higher within the organization, if and to what extent the individual’s work is supervised, if the individual shares in the profits and losses of the organization, the individual’s ability to influence the organization and whether the parties intended that the individual be an employee. The Clackmas factors have since been applied by courts to determine whether a partner is an employee under Title VII of the 1964 Civil Rights Act.
The Weir Court found that the former partner could not be considered an employee because he could only be expelled from the firm by a vote of at least 70% of the firm’s Directors committee, he had no specifically defined reporting responsibilities and his work was not supervised. Additionally, the plaintiff’s status as a partner was memorialized in a Partnership agreement and under that agreement he shared in the profits and liabilities of the firm. Due to these findings, the Court did not reach the merits of the plaintiff’s discrimination claims because they were unsupported by any evidence.
Tags: Age Discrimination Act, Clackmas Gastroentrology Assoc., Definition of Employee, Holland & Knight, P.C. v. Wells, Partnership Agreement, Status as Employee.
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December 29th, 2011
Last month, Massachusetts Governor Deval Patrick signed a new transgender equal rights bill, making Massachusetts the sixteenth state to prohibit discrimination based on gender identity. The bill goes into effect on July 12, 2012.
The bill prohibits discrimination based on gender identity in the areas of employment, education, housing, and credit. It also categorizes violence against transgendered individuals as a hate crime. “Gender identity” is defined in the bill as gender-related identity, appearance or behavior whether or not it is different from that “traditionally associated with the person’s physiology or assigned sex at birth.”
Connecticut also passed a transgender rights bill earlier this year. New Hampshire will now be the only New England state that does not prohibit discrimination based on gender identity.
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December 27th, 2011
In Barry v. Moran, seven civilian employees of the Boston Fire Department sued under 42 U.S.C. §1983. They claimed that they were routinely passed over for desirable promotions and positions within the department in favor of individuals who were friends, neighbors or relatives of influential Boston Fire Department employees, powerful people within city government or elected officials. They claimed that this pattern was a violation of their First Amendment right to freedom of association. (Note: Such constitutional claims apply only to employers that are also government entities.)
It is well-established that “non-policymaking public employees are protected from adverse employment decisions based on their political affiliation.” This is because “political belief and association constitute the core of those activities protected by the First Amendment.” The plaintiffs claimed that they were shut out of desirable opportunities within the department because they were not part of the favored political factions.
Last month, the U.S. Court of Appeals for the First Circuit affirmed judgment in favor of the Boston Fire Department. In doing so, the court stressed that the term “political” for purposes of the First Amendment “pertains to the conduct of government, public policy or public controversies.” For example, support for a political candidate is a political act for purposes of the First Amendment. In this case, however, plaintiffs used the term “political” in the sense of “office politics” and interpersonal relationships. For example, they did not allege that they are members of a rival political party, that a divisive political issue created a rift between them and the decision makers at Boston Fire Department or that they were discriminated against due to their political contributions or lack thereof.
Therefore, the court concluded that, while “unsavory,” the alleged cronyism that influenced employment decisions at Boston Fire Department did not constitute a violation of the First Amendment rights of disfavored employees.
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