The ADA is only 25!?

Yesterday, the Americans with Disabilities Act (ADA) celebrated its 25th birthday. The EEOC commemorated the milestone with a special ADA 25 page.

I can't believe it's only 25! That means it was enacted in 1990, the summer between 8th and 9th grade for me . . . yet, I remember absolutely nothing about it. I guess that's a testament to what a carefree childhood I had. I vividly remember Vanilla Ice proclaiming "1990 is my year, baby! Yup, yup, word to ya mutha." But the ADA? Nope.

My generation (or at least those of us as oblivious as I was) take these things for granted. Of course you can't discriminate against employees with disabilities! But it was not all that long ago that you could. Happy birthday ADA.

6th Cir.: No Reasonable Expectation of Privacy in "Pocket-Dial"

Finally, a court weighs in on the all-important issue of privacy expectations in butt-dials! Okay, technically, I think this was a breast-pocket-dial, but that's close enough, right? Here's the Sixth Circuit's opinion in Huff v. Spaw.

The Court likened a pocket-dial to a "person who exposes in-home activities by leaving drapes open or a webcam on." The Court was careful to note that the dialer did not take any available precautions (locking the phone, setting up a passcode, or downloading an anti-butt-dialing app). Ultimately, the dialer did not have a reasonable expectation of privacy in his pocket-dial.

Now, excuse me while I lock my phone with a passcode, close my drapes, and put tape over my webcam.

4th Cir. uses "hybrid" test for Title VII joint employer liability

Meet Brenda - she was hired by a staffing agency to do work for a car parts manufacturer. Brenda now claims that she is getting harassed at work (the phrase "big old ass(es)" came up a few times), so she files a Title VII lawsuit. Of course, Title VII generally allows employees to sue their employers for sexual harassment. But wait . . . who is her employer? The staffing agency or the manufacturer?

Meet the 4th Circuit Court of Appeals. In Butler v. Drive Automotive Industries (opinion here), the Court held that the manufacturer was a "joint employer." In other words, the manufacturer could not escape liability by claiming Brenda was the staffing agency's employee and not theirs.

How did the Court get there? Well, it applied a "hybrid" approach, which "combines aspects of the economic realities and control tests." For more on how much I love all of these different tests, see here. The 4th Circuit identified no fewer than eleven factors (effectively ensuring that no one will ever have any clue how these cases are going to come out before the Court uses its Magic 8-ball applies the eleven factors):

(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; 

(2) the skill required in the particular occupation; 

(3) whether the “employer” or the individual in question furnishes the equipment used and the place of work; 

(4) the length of time during which the individual has worked; 

(5) the method of payment, whether by time or by the job; 

(6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; 

(7) whether annual leave is afforded; 

(8) whether the work is an integral part of the business of the “employer”; 

(9) whether the worker accumulates retirement benefits; 

(10) whether the “employer” pays social security taxes; and

(11) the intention of the parties.

The "control" factor carries more weight than the others. I don't usually use my blog for advocacy, but there has got to be a better way to define "employees" and "employers." This issue could be resolved by either a Supreme Court opinion or new legislation (even then you have a potential fed-state split).

Join me at the ABA Labor & Employment Law Conference!

Straight from the Department of Shameless Self-Promotion: Mark your calendars! On Friday, November 6, 2015, I will be a panelist at the 9th Annual ABA Labor and Employment Law Conference. Check out the brochure here (I have taken the liberty of linking you straight to the only page that matters - p. 18, detailing my panel). Or, just read here:

2:15 - 3:30 pm 

Building Your Practice 140 Characters at a Time (T) 

In an era of rampant social media use, many attorneys disregard Twitter as a vehicle for mindless social commentary. Despite this belief, many business savvy employment lawyers are realizing financial gains through active Twitter use. This panel comprises attorneys who have successfully integrated Twitter into their business development and now boast a regular audience of thousands of followers. Hear them discuss the benefits of active Twitter engagement and explain what it can do for your law practice including updates on the law and best practices, commenting on legal developments, linking to concurrent blogs, providing access to presentations and recent decisions, and using Twitter as a valuable source of referrals. 

PANELISTS: 

David M. Cook, Cook & Logothetis, LLC, Cincinnati, OH 

Philip K. Miles III, McQuaide Blasko, State College, PA 

Daniel A. Schwartz, Shipman & Goodwin LLP, Hartford, CT

I'm excited to finally meet Dan Schwartz (the "blogfather" of Connecticut Employment Law Blog fame) in person. We've interacted electronically over the past few years, even working on a New York Times best-selling book together, Think Before You Click: Strategies for Managing Social Media in the Workplace (ok, technically it was not on the list; but I'm assuming they just Ted Cruz'd us). I'm looking forward to meeting David Cook too!

So, register today and come on out for a great conference!

EEOC: "[D]iscriminaticm based on sexual orientation is necessarily . . . sex disdcrimination under Title VII"

Well, the administrative agencies have been busy lately! Yesterday, the EEOC issued a decision concluding that sexual orientation discrimination is "inherently" sex-based discrimination. HT: Nicole Fuentes on CaseText (including EEOC's full opinion). The EEOC based its decision on three different legal theories (a straight - no pun intended - disparate treatment claim, associational discrimination, and sex stereotyping):

[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual's sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm or expectation that individuals should be attracted only to those of the opposite sex.

Something tells me we haven't seen the last of this issue . . . .

DOL Weighs in on Employee vs. Independent Contractor Classification

Not official use.

One of my least favorite topics to teach in my employment law course is the definition of "employee" (vs. independent contractor, trainee/intern, volunteer, or something else). Why? There are several different tests; they can have a dozen or so factors each; and the kicker... some courts use one test, some use another, some use a hybrid, and the tests also sometimes vary depending on the circumstances. The Department of Labor often weighs in on these issues, but as we found out recently, courts don't always follow DOL's interpretation. I can barely make sense of it all, so explaining it to undergraduate students with no legal background is a tough task.

For what it's worth, yesterday the DOL issued Administrator’s Interpretation No. 2015-1 Re: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors (catchy title!).

So, what tests are in play? The primary contenders are:

• Economic realities test - "[F]ocuses on whether the worker is economically dependent on the employer or in business for him or herself."
• Common law test - "[B]ased on the employer’s control over the worker" (specifically, control over when, where, and how the work gets done).

In it's latest interpretation, DOL came down in favor of the economic realities test. The exact flavor of economic realities test varies from court to court, but the interpretation notes these factors:

(A) the extent to which the work performed is an integral part of the employer’s business; 

(B) the worker’s opportunity for profit or loss depending on his or her managerial skill; 

(C) the extent of the relative investments of the employer and the worker; 

(D) whether the work performed requires special skills and initiative; 

(E) the permanency of the relationship; and 

(F) the degree of control exercised or retained by the employer.

Astute readers may note that the final factor sounds an awful lot like the "common law test." Ummm, yeah... it does. The tests are different, but there's a lot of overlap. DOL was also quick to note that "no single factor is determinative. The 'control' factor, for example, should not be given undue weight."

To the surprise of no one, DOL picked the broader definition. Classification remains more art than science.

The "Prisoners of AT$T" Lose in D.C. Circuit

I love it when a judicial opinion tells you everything you need to know in the opening paragraph. It allows me to blog about the case by just cutting and pasting... hold on a second... just trying to reach the ctrl and the v... here ya go:

Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public – including employees who enter customers’ homes – from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.” But the NLRB ruled in a 2-1 decision that AT&T committed an unfair labor practice by barring its employees from wearing those shirts. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions, there is a “special circumstances” exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the “Inmate/Prisoner” shirts may harm AT&T’s relationship with its customers or its public image. Therefore, AT&T lawfully prohibited its employees here from wearing the shirt. We grant AT&T’s petition for review, vacate the Board’s decision and order with respect to the “Inmate/Prisoner” shirts, and deny the Board’s cross-application for enforcement.

Southern New England Telephone Company v. NLRB (opinion here). Wow, a not-so-subtle dig at the NLRB in line 1.

HT: Ross Runkel, “Prisoner of AT$T” T-shirt can be banned.

Second Circuit Rejects DOL's 6-Factor Unpaid Intern Test

Last week, in Glatt v. Fox Searchlight Pictures (opinion here),  the Second Circuit rejected the Department of Labor's six-factor test for distinguishing lawful unpaid interns from regular old employees (who must be paid minimum wage and overtime).

Let's back up... what's the six-factor test? As I blogged 5 years ago (have I really been doing this for over five years?), the DOL advocates using a six-factor test to identify "trainees" (including unpaid interns):

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees; 

3. The trainees do not displace regular employees, but work under their close observation; 

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded; 

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and 

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

So, you just apply this test? Not so fast! Courts do not have to follow the DOL's test - although there are established rules for what level of deference various agency tests are due. The deference issue gets about two sentences from the Second Circuit... to the extent DOL's test was based on its interpretation of an old Supreme Court case, it is due little if any deference; at best it gets "Skidmore" deference, which just means that the Court considers the guidance only to the extent the Court finds it persuasive.

Apparently the Court didn't find it very persuasive, because it completely rejected the six-factor test. So, what test did the Second Circuit use? I'm glad you asked!

[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work. Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.

(citations omitted). So, what test should you use? The six-factor test? Primary benefit test? Some hybrid of the two? Or maybe another judicially created test? Well, it depends on your jurisdiction. Unfortunately, in a lot of jurisdictions, we just don't have a clear answer yet. In the Second Circuit, we do have an answer: the primary benefit (or beneficiary) test.

For additional coverage, check out:

• 2nd Circuit Becomes 2nd Court to Toss DOL Internship Test by Jon Hyman 
• DOL’s Internship Test Rejected by Second Circuit Creating Conflict with New Connecticut Law by Dan Schwartz