|
Archive for the ‘Diversity’ Category
Thursday, June 3rd, 2010
Employee class actions have increased the heat on national employers across all industries; just ask Novartis, Wal*Mart, Starbucks and Outback Steakhouse.?? Employee class actions can be expensive to defend against and harder to settle than single plaintiff litigation.?? In fact, the class action plaintiffs??? bar generally operates on a ???the bigger they are, the harder they fall??? model.?? For them, a class of sixty employees is just another case on the docket, but a class of sixty thousand can be national news, increasing public pressure on the employer to settle.
Case in point: a recent federal appeals court decision allowed a massive class action lawsuit to go forward against Wal*Mart, the nation???s largest private employer.?? On April 26, 2010, an eleven-judge panel of the Ninth Circuit ruled 6-5 that a class action alleging less favorable treatment of female employees filed on behalf of all women who worked at Wart*Mart from 1998 and the present could go forward.?? In 2001, at the time of filing, the named class was estimated to contain 1.5 million members.?? Wal*Mart unsuccessfully argued that such a lawsuit was inherently unmanageable, and is now considering an appeal to the Supreme Court.?? This is not an insolated incident for Wal-Mart, which in December 2008 alone settled 63 class actions for a total of $640 million.
Wal*Mart, of course, is not alone.?? A federal jury in Manhattan ruled on May 19, 2010 that Novartis Pharmaceuticals Corporation engaged in a pattern of discrimination against women from 2002 through 2007 and must pay $250 million in punitive damages.?? The jury found that Novartis discriminated against thousands of female sales representatives concerning pay, promotion, and pregnancy.?? The jury also awarded $3.3 million in compensatory damages to twelve women who testified in the class action suit.?? The compensatory award allows 5,588 other women to apply for compensatory damages, which will be determined on an individual basis.?? ??Obviously, the total payout could increase exponentially with the inclusion of the additional claims of the other class members.
Other recent cases point in a similar direction.?? In Chau v. Starbucks Corp., filed in California state court in 2004, the plaintiff class alleged that Starbucks violated California???s Labor Code by pooling tips left in tip jars and sharing those not just with baristas (part-time hourly employees), but also with shift supervisors (also part-time hourly employees), who spend 90 percent of their time performing barista tasks.?? The Plaintiffs alleged that this violated California Labor Code Cal. Labor Code ?? 351, which states that ???[n]o employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.???
The California superior court certified the class of current and former baristas, and after a bench trial, the trail judge found the tip pooling violated ?? 351 because the shift supervisors were ???agents??? of the employer.?? The class was awarded $86 million in damages.?? Recently, the California Court of Appeals overturned the multimillion dollar verdict, holding that under Starbucks??? team service concept, tips were left for the entire team of employees, including shift supervisors whom to customers were visually indistinguishable from baristas.?? Despite the ultimate victory in California, the original verdict led to copycat class-actions in Massachusetts and New York.?? Outcomes there may differ as the wage laws in the various states differ, but the threat of class action remains constant.
In EEOC v. Outback Steakhouse, filed in Colorado federal court in 2006, the Equal Employment Opportunity Commission acting on behalf of all female employees at company-owned restaurants, alleged that Outback denied women equal opportunities for advancement.?? Specifically, the EEOC alleged that Outback engaged in ???gender discrimination on a systemic scale??? by maintaining a glass ceiling that kept women from promotion to higher-level profit-sharing positions.
From the outset, this was a difficult case to defend for Outback, as a joint venture partner had stated that female employees had ???let him down??? and ???lost focus??? when they had children, and that he wanted ???the cute girls??? work in the front as servers.?? In December 2009, the court accepted a $19 million settlement between the parties, which also included a host of other requirements, such as hiring a ???Vice President of People??? (query exactly what that position entails).
No one ???cure-all??? exists for your business to avoid an employee class action suit.?? But creating a culture of best practices can help minimize risk: (1) develop written employment policies with your attorney and communicate them; (2) follow up with training like you mean it rather than holding mere ???one off??? trainings with little impact on employees, (3) develop a culture of respect and team work with a diversity action program that integrates a strategy through hiring, mentoring, promoting and monitoring, (4) make your cultural values specific and reviewable on a performance level with your managers and staff, (5) ensure your human resources department works closely with operations to develop, promote and enforce your culture and values, including legal compliance, (5) make the process of reporting of complaints clear and easy, and investigations of those complaints quick, thorough and confidential.?? While size matters for the plaintiff lawyers, culture can combat the risk of class actions and in the end give your company an edge in the market for talented workers.
Chris Vrountas, Chair of the Employment Counseling and Litigation Practice Group, contributed this posting.
Posted in Class Actions, Diversity, Employment Law/Cases, Industry News | No Comments »
Wednesday, April 21st, 2010
A Muslim woman filed a discrimination complaint against the McDonald???s claiming that she was denied a job at a one of their Detroit restaurants because of her religion and ethnicity. The woman wears an Islamic head scarf known as a hijab as part of her religious customs. According to the Complainant, the McDonald???s manager with whom she interviewed asked her about her nationality and whether she had to wear the hijab, and proceeded to tell her that she would not be able to wear the hijab while she was working. Ultimately, McDonald???s hired someone else. This is not the first time that a Michigan McDonald???s has been under fire for discriminating against Muslim individuals. In July 2008, two Muslim women complained after a manager at a McDonald’s restaurant in Dearborn said they could not wear Islamic headscarves at work. Their attorney filed suit and he said today that the case may go to trial in a couple of months. McDonald???s director of operations responded that the restaurant strictly prohibits any form of discrimination. A McDonald???s representative said that the Company never intends to offend anyone and it requires its employees to comply with all applicable anti-discrimination laws.
For more information, see Nation’s Restaurant News.
Tags: Detroit, McDonald's, Muslim, Nation's Restaurant News, religion, religious discrimination
Posted in Diversity, Employment Law/Cases, Restaurant Liability | No Comments »
Friday, April 16th, 2010
The U.S. District Court, (M.D. Pennsylvania) held that in Title VII wage discrimination claim, under the Lilly Ledbetter Fair Pay Act, if plaintiff faculty member can demonstrate that her wages were the result of a discriminatory decision to pay her less than her male co-workers, she may recover for each paycheck received during the Title VII 300-day statute of limitations period and need not show that a discriminatory pay-setting decision occurred within the 300-day period. The court also holds, however, that the Fair Pay Act, which states that each paycheck paid pursuant to a discriminatory pay structure is an independent, actionable employment practice, precludes application of the continuing violation theory to support recovery by plaintiff of amounts attributable to discrimination represented in paychecks issued prior to the 300 day limitation period. The court also discusses application of the Discovery Rule and Equitable Tolling to extend the 300 day limitation period and the application of the Fair Pay Act to Plaintiff???s Title IX, Sec. 1983 and 1985 claims.
See: Summy-Long v. Pennsylvania State University et al.
Tags: discrimination, Diversity, Fair Pay Act, gender discrimination, Lilly Ledbetter, Lilly Ledbetter Fair Pay Act, Penn STate, Penn State University, Pennsylvania State University, Title IX, Title VII
Posted in Diversity, Employment Law/Cases | No Comments »
Friday, March 12th, 2010
Not by cursory, mandatory “diversity training,” says Elizabeth Levy Paluck of Princeton University as reported in the Boston Globe earlier this week. According to her report, diversity training in the work place has not improved diversity or changed the work place in any measurable manner. In fact, such training can have a backlash effect depending on how it is administered.
But that “depending” is a big qualifier that in some ways sets up a straw man that can be easily knocked down by those who wish to engage in best practices that can improve not only diversity but also the morale of a company’s work force.????A properly administered diversity action plan can??make a workforce??more productive and, in the end, more profitable. The Globe report discusses how mandatory training geared towards avoidance of legal claims does not serve to change attitudes in a positive manner. To some extent, the report states a mere truism, as a list of “thou shalt nots” without more typically??does not create any positive motivation to the right thing. Rather, training focussed on team work and values coupled with a program for hiring, mentoring, promoting and monitoring, can serve to improve diversity, increase your talent pool, and strengthen your team and your business.
In other words, do diversity like you mean it, not because Big Brother tells you. Like anything else, success in diversity requires a plan, hard work and diligence. An annual 60 minute training won’t do it. NKMS has published frequently on this topic, and we have often conducted corporate training that focusses on “Respect, Teamwork and Common Sense.” It’s good to see the academics agree with the approach we have taken through the years.
Chris Vrountas, Chair of the Employment Counseling and Litigation Group, contributed this posting.
Tags: Boston Globe, Diversity, Diversity Training
Posted in Diversity, Industry News | No Comments »
Sunday, February 7th, 2010
Usually, the answer is yes, says Lewis Maltby in his new book entitled, “Can They Do That” which was recently featured on National Public Radio. Like most employment lawyers, Maltby says he has received numerous calls from friends and clients literally asking, “Can they do that?” as they refer to an unpopular action taken by their employer. Bottom line, in the “at will” world in which we leave, chances are the answer is “yes.” An employer can discharge a worker for any reason or for no reason at all, unless there is an employment contract stating to the contrary. There are few exceptions to the “at will” doctrine, although the law varies amongst the several states. Typically, the only exceptions to the “at will” doctrine are statutory (such as the anti-discrimination laws, whistleblower protection laws, or other anti-retaliation statutes) or limited common law exceptions (including the “public policy” exception to the “at-will” doctrine which prohibits employers from taking action against employees for doing what public policy would encourage or refusing to do what public policy would discourage). Most of the slings and arrows of outrageous fortune that employees face in the workplace do not fall within these exceptions.
In other words, it’s a free country, and if you don’t like your job, you can leave any time you want. But that freedom for the most part is mutual, and if your employer at any time just gets sick of looking at you, there’s little law to stop that from happening.
That said, every state is different. In the allegedly conservative State of New Hampshire, the jury, not the judge, defines what constitutes a “public policy” that could form an exception to the “at will” doctrine. That approach makes it very difficult for employers to have public policy wrongful discharge cases dismissed before trial, and once something is in front of a jury, anything can happen. Indeed, the seminal case in New Hampshire, Monge v. Beebe Rubber Co., 114 NH 130, suggests that the “public policy” exception amounts to another way of describing “bad faith” employment termination, and further explained that “a termination by the employer of a contract of employment-at-will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract.” Monge v. Beebe Rubber Co., 114 NH 130 (1974).
By contrast, the allegedly liberal Commonwealth of Massachusetts has through its judicial opinions identified a very limited set of matters that could be considered of the sort implicated a “public policy.” See Wright v. Shriners Hospital, 412 Mass. 469 (1992). The failure of a discharged employee to assert circumstances falling within such matters would likely lead to summary dismissal, either at summary judgment or even earlier, leaving the employee with little legal recourse.
As we have noted recently in this blog when reporting a recent federal court decision out of New Hampshire, not every act of unkindness constitutes a “public policy” violation, although where to draw the line in some states may well be in the eye of the beholder. As for statutory claims, the federal courts have frequently noted that the anti-discrimination laws are not a “code of ettiquette” and that only “severe and pervasive conduct” that creates a “hostile work environment” can create liability for employers. Even then, not all “hostile work environments” are unlawful. Only those environments that are hostile as a result of unlawfully discriminatory practices are unlawful. A mean boss, who may be hostile, does not necessarily create an unlawfully hostile environment.
So what? While the deck may appear stacked against the employee, the law does allow for enough ambiguity to create messy litigation for employers who engage in what may appear to be unfair acts, even if such acts may not be unlawful. The best approach for employers is to focus on the business, make decisions based on objective criteria, and remember TCD: i.e. timing, consistency and documentation. For any employment decision, employers should take action soon after the event that gives rise to the need to take action (i.e. avoid discrimination claims by disciplining immediately and not waiting until after, by some bad luck, the employee tells you he needs leave or an accommodation), treat all employees consistently (consider a progressive discipline policy for all managers to follow so that employees at all areas in the company receive at least similar treatment), and document decisions and their bases well (make a record that reflects the legitimate basis for decisions as juries and judges believe paper more than memories). That way, employers can go a long way towards protecting themselves from a wrongful discharge claim.
Meanwhile, employees should be advised that, while there always may be legal weapons for the opportunistic, the legal landscape in the end does not seek to or even purport to address all ills in the workplace.
Chris Vrountas, Chair of the Employment Counseling and Litigation Group, contributed this posting.
Tags: at will doctrine, bad faith, book, Can They Do That?, discrimination, Lewis Maltby, National Public Radio, NPR, public policy, reading, termination, whistleblower protection
Posted in Diversity, Employment Law/Cases, Employment Law/Legislation, Industry News | No Comments »
Monday, February 1st, 2010
The French have found what they believe will be a direct line to gender equality according to this morning’s broadcast of NPR News. The national government has proposed a quota requirement for all businesses listed on the Paris stock exchange that would require these companies to have their boards of directors contain at least 40% women within the next 5 years. French companies average 8% women on corporate boards as compared to 15% in the United States. But the French seek to follow Norway, which has a similar law and now boast of over 40% participation of women in board rooms. Some in France believe the quota system at the top will have a trickle down effect for women’s pay down the corporate ladder, as women generally continue to be compensated less than men in the French economy. Others view the proposed law as a clumsy blunt instrument that will do nothing more than promote “yes women” that will support current insiders. Meanwhile, the bill has general support from both the right and left in France and prognosticators expect it to pass by the end of the year.
The quota approach is clearly not the American way to achieve diversity, as evidenced by recent Supreme Court jurisprudence. While the gender pay equity remains disparate, the gap is narrowing while the number of women exceed men in workforce and as the recession in America has negatively affected men more than women. That said, evolution can be slow. As John Maynard Keynes once said, “In the long run, we’re all dead.” Companies can encourage and promote diversity in a responsible manner and in compliance with US law so long as they have a responsible goal, a narrowly tailored plan, and the discipline to carry it through.
In 5 years, which economy will have more opportunities for women and which one will have a quota system? One can only speculate and wait and see.
Chris Vrountas, Chair of the Employment Counseling and Litigation Practice Group, contributed to this posting.
Tags: employing women, France, gender pay, gender pay equity, Keynes, National Public Radio, Norway, NPR, Paris stock exchange, quota system, recession, women
Posted in Diversity, Employment Law/Legislation, Industry News | No Comments »
Thursday, January 28th, 2010
Chris Vrountas has posted the following:
President Obama delivered his first State of the Union address to a Joint Session of Congress and to the American people last night. He covered quite a bit of ground about the economy, health care and national security, among other things, but he also specifically discussed his administration’s policy regarding civil rights and wage law enforcement. The president’s strident tone should provide notice to business and other employers that the federal government will be looking to enforce the anti-discrimination and wage laws vigorously and, in some cases, looking to make examples of certain violators. Here is a brief portion of the speech last night:
. . .
Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.
We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination. We finally strengthened our laws to protect against crimes driven by hate. This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. We are going to crack down on violations of equal pay laws - so that women get equal pay for an equal day’s work. And we should continue the work of fixing our broken immigration system – to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations.
In the end, it is our ideals, our values, that built America – values that allowed us to forge a nation made up of immigrants from every corner of the globe; values that drive our citizens still. Every day, Americans meet their responsibilities to their families and their employers. Time and again, they lend a hand to their neighbors and give back to their country. They take pride in their labor, and are generous in spirit. These aren’t Republican values or Democratic values they’re living by; business values or labor values. They are American values.
. . .
So, it is “let the word go forth” time for this administration and its policy on civil rights and wage and hour enforcement. Employers should mindfully review their policies, develop their training, ensure compliance, make HR available and noticeable, take internal complaints seriously and resolve them fairly because employers who do not manage their workplaces actively may have the EEOC or the DOL doing it for them.
Tags: civil rights, Congress, Constitution, constitutional law, Department of Labor, discrimination, DOL, economics, EEOC, Equal Employment Opportunity Commission, equal pay, equal pay laws, health care, health care bill, healthcare, Obama, Obama Administration, SOTU, State of the Union
Posted in Diversity, Employment Law/Legislation, Health & Safety, Industry News | No Comments »
Tuesday, January 19th, 2010
For those of you looking to avoid, or obtain, federal diversity jurisdiction on any claim you may be litigating, remember that the federal court will consider the amount in controversy to include the full amount of any claimed double or treble damages under any unfair trade practices claim brought in the complaint. See how Judge DeClerico explained his recent decision here.
Chris Vrountas
Tags: damages, Diversity, diversity jurisdiction, Judge DeClerico
Posted in Diversity, Employment Law/Cases, Industry News | No Comments »
Saturday, January 9th, 2010
Chris Vrountas, Chair of the firm’s Employment Counseling and Litigation Group, contributes the following:
The EEOC announced this week that Fiscal 2009 ended with record numbers of disability, religion and national origin discrimination claims, while the number of age-related discrimination claims reached the second highest for that category in history. Meanwhile, the most frequently filed claims remained those alleging discrimination on the basis of race (36%), retaliation (36%) and sex (30%). The EEOC provides these and other statistics on its website.
Tags: Disability, discrimination, EEOC, Equal Employment Opportunity Commission, Fiscal Year 2009, FY 2009, race, racism, retaliation, sex
Posted in Diversity, Industry News | No Comments »
|
