Showing posts with label COTW. Show all posts
Showing posts with label COTW. Show all posts

Friday, November 22, 2013

Mixed Motive vs. Pretext Jury Instruction - COTW #169

The Third Circuit posted an unpublished opinion recently in Kull v. Kutztown University (opinion here) (let's pause for a moment so my non-attorney readers can digest that an opinion that was just published is "unpublished"). The Court included some nice and concise analysis of "mixed motive" vs. "pretext" jury instructions. I should note that the Plaintiff in this case failed to object at trial, so this analysis falls under a plain error standard:
“Whether a case is a pretext case or mixed-motives case is a question for the court once all the evidence has been received.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1098 (3d Cir.1995) (citation omitted). In a pretext case, the plaintiff must show that gender was a “determinative factor” in an adverse employment decision, while in a mixed-motives case, the plaintiff need only show that gender was a “substantial motivating factor.” See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000). A plaintiff must demonstrate with “sufficiently direct” evidence that gender was a motivating factor in the employer's decision to warrant a mixed-motives instruction. See id. 
The District Court did not commit plain error in treating this as a pretext case and instructing the jury accordingly. Kull did not present “sufficiently direct” evidence that gender played a role in the University's decision. The evidence Kull presented was circumstantial. He testified that certain women had been tenured despite having fewer publications, while a man's contract had not been renewed. From this circumstantial evidence, the jury was to conclude that the University applied less stringent criteria to women. It is not “sufficiently direct” evidence to justify a mixed-motives instruction under Watson.
The Court then affirmed the judgment in favor of the University.

Thursday, November 14, 2013

Third Circuit Decision in Transgender Discrimination Case - COTW #168

On Wednesday, the Third Circuit issued a non-precedential opinion in Stacy v. LSI Corp. The case is noteworthy because the plaintiff's claims were based on transgender/gender identity discrimination (framed as Title VII sex discrimination, sex and disability (gender identity disorder) discrimination and retaliation under the PHRA (PA's state discrimination statute), and gender identity, sex, and disability discrimination and retaliation under Allentown's discrimination act).

Other than that, you know what's unusual about this decision? The fact that there's really nothing unusual about this decision. The Court simply applies the McDonnell Douglas burden shifting framework to conclude that the employer proffered legitimate non-discriminatory reasons for terminating the employee, and she could not establish pretext. Summary judgment for the employer.

I should note what the Court did not hold. The Court did not specifically address whether transgender/gender identity discrimination is protected by Title VII and the PHRA because the employer conceded that the employee had set forth a prima facie case. Nevertheless, as I've stated previously, I think the writing is on the wall on this issue . . . transgender/gender identity discrimination will be treated as sex discrimination by courts (whether ENDA passes or not).

Friday, November 8, 2013

3d Cir. on FLSA Collective Action Appellate Procedure - COTW #167

I know, I know - FLSA collective action appellate procedure is probably not the most exciting topic in the world. But when the Third Circuit issues a precedential opinion on the topic, I feel an obligation to give it some time here at Lawffice Space.

In Camesi v. UPMC (opinion here), the Third Circuit addressed an appeal after "manufactured finality." Plaintiffs filed FLSA actions contending their employers failed to pay them for work performed during meal breaks. The FLSA allows collective actions, but in these cases (did I mention the appeal involved consolidated cases?) the district court decertified the classes and dismissed the opt-in plaintiffs.

The named plaintiffs wanted the Third Circuit to review the decertification decisions, but there was a problem. Generally, parties cannot appeal to the Third Circuit until the lower court renders a final decision. Decertification is generally not a final decision because the named plaintiffs continue to have live claims. So, what do the plaintiffs in these FLSA claims do? They voluntarily dismiss their claims with prejudice to "manufacture finality."

Now that all the claims are gone, can the plaintiffs appeal the decertification decisions to the Third Circuit? Nope. The Third Circuit held:
In sum, the District Courts’ orders decertifying the collective actions were interlocutory. Appellants were not entitled to appeal these orders directly under § 1291. Nor can Appellants avoid the strong presumption against interlocutory review of such orders by voluntarily dismissing all of their claims under Rule 41. Thus, these appeals must be dismissed for lack of appellate jurisdiction.
The appeals were dismissed for lack of jurisdiction.

Friday, November 1, 2013

$666 Raise Spawns Devilish Claim - COTW #166

Just in time for Halloween, the latest Case of the Week prominently features Satan and the mark of the beast - 666. The Cleveland State University Chapter of the American Association of University Professors filed this unfair labor practice charge.

The charge is based in part on the following allegations:
[F]aculty generally received one of the following merit raises: $5,000, $3,000, $666, $0. Dean Boise manipulated [the] merit raise increases in order to . . . award the bulk of AAUP organizers a six-six-six wage increase . . . . In effect Dean Boise has called AAUP's organizers and AAUP Satan.
Maybe it's just me, but that sounds like a bit of a stretch.

HT: Volokh Conspiracy post emailed to me by Mike Chittenden of Miller & Chevalier.

Friday, October 4, 2013

SCOTUS Returns on Monday with Age Discrimination Case - COTW #163

It takes more than a federal government shutdown to stop the Supreme Court! They granted certiorari in eight cases on Monday, including two labor and employment law issues. I may jump on them next week - in the meantime check out Ross Runkel's blog for details on the issues in the two cases:
  1. Constitutionality of compelled payments to labor union; and
  2. FICA Tax on Severance Payments to Involuntarily Terminated Employees.
The Court has announced that it will remain open and continue to hear oral arguments until October 11 (at which point they'll reassess the situation if need be).

The first day of oral arguments features an interesting confluence of age discrimination statutory law and constitutional law. When plaintiffs file age discrimination claims under the ADEA they must "exhaust their administrative remedies" - i.e. they must go through the EEOC process before running to court.

However, public employees can file suit under the United States Constitution (and a statute that allows lawsuits for infringement of constitutional rights, 42 USC s1983). Specifically, the Fourteenth Amendment's Equal Protection Clause prohibits certain types of discrimination. Can 14th Am plaintiffs just run straight to court without jumping through those administrative hurdles?

SCOTUS will hopefully answer that question (there's another qualified immunity issue at play here too). The case is Madigan v. Levin, you can check out the SCOTUSblog page here, and my initial post when the Supreme Court granted cert here.

Friday, September 27, 2013

EEOC Sues Bank for Same-Sex Sexual Harassment - COTW #162

When you hear the phrase "sexual harassment", who do you think of as the harasser? The harassee? I think most people jump to the harasser being a man and the harassee being a woman. But, anyone who has seen Disclosure (nothing like a pop culture reference from 20 years ago!) knows that it's still sexual harassment if it's a woman harassing a man.

What if the harasser and the harassee are the same sex though? What if the harasser is a woman, allegedly sexually harassing an entire class of all women? You probably guessed it . . . it's still sexual harassment!

The EEOC issued a press release this week, announcing a new same-sex harassment lawsuit: EEOC Sues Wells Fargo for Same-Sex Sexual Harassment Female Manager Sexualized Workplace, Employee Forced to Quit to Escape, Federal Agency Charges. According to the release:
[F]our female bank tellers employed at a Reno, Nev., Wells Fargo branch regularly faced graphic sexual comments, gestures and images from a female service manager and another female bank teller. The harassment included invasive comments about their bodies and sex lives as well as inappropriate touching and grabbing. The EEOC also charges that the service manager suggested that the female bank tellers wear sexually provocative clothing in order to attract or retain customers and to advance in the workplace.
Same-sex harassment cases are starting to get more attention. Employers should not dismiss claims of sexual harassment just because the harasser and harassee are the same sex.

Friday, September 20, 2013

Facebook "Like" Gets First Amendment Protection! - COTW #161

Last year, I blogged about a district court decision holding that a Facebook "Like" did not receive First Amendment protection (see here). I was skeptical, and predicted that other courts would find that "Likes" do receive protection.

Well, the Fourth Circuit Court of Appeals reversed that decision and held:
In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.
You can read the opinion here.

Fellow employment law blogger, Dan Schwartz, has some insightful commentary here, including:
Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really an endorsement of an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1″ on Google+? Or a Heart on Instagram?
I think the short answer is that all of these actions express something. What that "something" is will often be difficult to discern (and I suspect even harder to connect to an employment action in the context of public employee free speech retaliation cases).

Endnote: I just realized that, in an 81-page opinion, I selected the exact quote that Dan used. Whether that's coincedence, or me subconciously picking up on the language that I had seen in Dan's post . . . I don't know. Or, maybe the world's greatest legal minds just agree as to the most important part of the Court's opinion. ;-)

Friday, September 13, 2013

"Upskirt" Shots Lead to Attorney Suspension - COTW #160

I don't write a lot of posts about professional licensing issues, although I contend they count as employment law. The latest Case of the Week deals specifically with attorney licensing.

Last week, the Pennsylvania Supreme Court issued this order, suspending an attorney for 6 months (plus probation for 3 years and some mental health stuff). Nothing too interesting in the order - it's basically just accepting the recommendations of the Disciplinary Board.

But fear not, The Legal Intelligencer has the scoop in "Upskirt" Corporate Counsel gets Six-Month Suspension. If you're not familiar with the concept of "upskirts," they're photos and/or videos that creepy people take by secretly shooting/filming up girls skirts.

So, what did this attorney allegedly do? Per the article:
According to the report, on September 9, 2008, Boulware, in a Springfield Township, Montgomery County, Acme Market, followed a 16-year-old girl and her mother throughout the store, filming the girl with a video camera attached to his shoe as she bent over to pick up store items. Earlier that same day, Boulware followed an adult woman into the same market and similarly videotaped her up her skirt by standing close to her, the board noted in its report. Both incidents occurred without the knowledge and consent of the victims, the board's report said.
Seriously? At what point does someone decide that it's a good idea to strap a camera to his shoe and chase young girls around the grocery store trying to film up their skirts? Frankly, I think six months is light.

Friday, September 6, 2013

"Protected Activity" No Shield for Insubordination - COTW #159

An employee in the Third Circuit learned a tough lesson: "P
rotected activity" may protect you from retaliation, but it doesn't protect you from termination for insubordination.

The employee noticed an error in her paycheck and notified the manager - who immediately cut her a check for the difference. Nevertheless, the employee emailed the Pennsylvania Department of Labor, and also complained to her supervisor noting that the employer could get in trouble. Perhaps a little overkill, but generally so far, so good - right?

Well, a co-worker complained that the employee was being disruptive that morning and . . . I'll, let the Third Circuit take it from here:
When [the employee] arrived at the Theatre that evening, [her supervisor] told her that she needed to speak with her immediately. [the employee] stated that she had a scheduled sales call at 6:00 p. m. and did not have time to speak with [the supervisor] at the moment. [The supervisor] continued to insist, and [the employee] finally said, “I'll eat your ass if you want me to, but I have to make this phone call first .” She then proceeded to make the telephone call. [The supervisor] told [the employee] she was fired and tried to remove the phone receiver from [her] hand.
Garges v. People's Light & Theatre Co., 13-1160, 2013 WL 3481723 (3d Cir. June 28, 2013). And so she was fired.

Her response? A lawsuit under the FLSA, Title VII, and the Equal Pay Act. The result? She lost because she "did not show that the Theatre's reason for terminating her—insubordination—was a pretext for discrimination." Lesson learned.

HT: Janine Gismondi via the August 2013 Pennsylvania Employment Law HR Specialist.

Friday, August 30, 2013

Koko the Gorilla . . . Sexual Harassment Lawsuit!? - COTW #158

OK, I don't usualy pick eight-year-old cases for Case of the Week - but I had to pass along this case straight from the "how have I not heard of this before" file. Apparently, in 2005, two employees who worked with Koko the sign language gorilla filed a discrimination and harassment lawsuit.

According to this 2005 San Francisco Chronicle article, the Complaint alleged:
"On at least two incidents in mid-to-late June 2004, Patterson intensely pressured Keller to expose herself to Koko while they were working outside where other employees could potentially view Keller's naked body. ... On one such occasion, Patterson said, 'Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples. I will turn my back so Kendra can show you her nipples.'" . . . . The suit, in any case, says that Patterson would interpret hand movements by Koko as a demand to see exposed human nipples. She warned Alperin and Keller that their employment with the foundation would suffer, the suit says, if they "did not indulge Koko's nipple fetish."
Well, that's . . . ummmm . . . interesting? Apparently the suit was dropped following settlement.

HT: Jaime Bumbarger who mentioned the case as part of the SES Employment Law Seminar we spoke at on Wednesday.

Friday, August 23, 2013

Appeals Court: Teacher Fired for Sex in School Actually had Immunity - COTW #157

This installment of Case of the Week features a teacher who was fired for having sex in school. The incidents invovled a co-worker (not students) and no students were present. I guess that makes it a little better, but still a terminable offense, right?

Not so fast. The sexcapades came to light in the course of an investigation into the co-worker striking, stalking, and sexually harassing the teacher. The school district's solicitor needed the teacher's testimony at an arbitration hearing against the co-worker.

In the teacher's appeal from her own termination decision, the Pennsylvania Commonwealth Court in DiBattista v. McKeesport Area School District (opinion here) noted:
At Co-worker’s arbitration hearing on March 8, 2005, upon learning that District intended to raise this issue during [the teacher's] testimony, [the teacher's] attorney questioned District solicitor, “But what about [the teacher]?” District’s solicitors responded, “[h]ow many times have I got to tell you? I’m not interested in [the teacher].” Moreover, District’s solicitors had already told [the teacher's] attorney at the meeting on March 4, 2005 that this “wasn’t a proceeding that was going to involve filing charges against [the teacher].”
Do you see where this is going?

Applying contract principles, the Pennsylvania Commonwealth Court held that the solicitor entered into an "implied agreement" for immunity in exchange for the teacher's testimony. Therefore, the Commonwealth Court reversed an earlier decision upholding the teacher's termination.

For more on this story, check out the Patriot-News: Commonwealth Court Voids Teacher Firing Over Sex in School.

Friday, August 16, 2013

Paula Deen's Deposition: The Answer - COTW #156

Earlier this week, I blogged about Paula Deen's victory in the race discrimination claims against her. But, I had a question: Why was Paula Deen's deposition taken before the motion to dismiss was resolved? Loyal reader (and MQB colleague), Dave Weixel, found the answer and emailed it to me.

The judge in the case actually denied a motion to stay discovery filed by both sides:
In January, Senior U.S. District Judge William T. Moore Jr. denied without explanation a motion to postpone discovery in the race discrimination and sex harassment case brought against Deen and her brother by one of their restaurant managers. That motion to stay discovery—which, if granted, would have postponed the deposition in which Deen admitted using a racial epithet—was made by lawyers representing both the defendants and the plaintiff.
This strikes me as odd - discovery, and in particular depositions, can be extraordinarily expensive. Think about all the time the parties, their attorneys, and a paid reporter spent in depositions addressing claims that were dismissed at the pleading stage (of course, the primary cost for Paula Deen came from the content of her testimony).

Had the deposition taken place after the race discrimination claims were dismissed, the racially charged questions probably would have been off the table . . . . contrary to the quote in the linked article from an attorney:
It's probably a permissible question in a deposition . . . . You are trying to determine the atmosphere. If you use the N word, you probably have greasy paws on women.
Sorry. Not buying it. I invite my readers to weigh in by dropping a comment. But seriously, did anybody read Paula Deen's "n-word" testimony and think, "yeah, she probably has her 'greasy paws' on women"? I'm guessing no.

Friday, August 9, 2013

Whatever Happened to that Wal-Mart Class Action? - COTW #155

About two years ago, the Supreme Court issued its opinion in Wal-Mart v. Dukes, a class action discrimination case on behalf of about 1.5 million female employees. The Court held that the class could not properly be certified because the claims lacked commonality:
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.
Whatever happened to the class action? Well, they scaled it down to about 150,000 members and tried again. Unfortunately for them, and contrary to popular belief, the problem was never the size of the class. In a recent ruling from the Northern District of California:
Two themes emerge in the analysis that follows. First, though they have cut down the raw number of proposed class members significantly, Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region. Second, though Plaintiffs insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.
The Court therefore denied the motion for class certification. We'll see whether they go back to the drawing board or appeal the ruling.

One note of interest: the judge in this case is Justice Breyer's brother, Judge Charles Breyer. If this case comes back to the Supreme Court, this could lead to recusal of a likely plaintiff-side vote.

HT: SCOTUSBlog - Wal-Mart Bias Challenge Fails Again.

Monday, August 5, 2013

ERISA Decision Post-Supreme Court DOMA Decision - COTW #154

A Monday Case of the Week!? Yeah, I spoke at an employment law seminar for the folks at Healthcare Human Resources Association in Altoona, PA on Friday. So, the Case of the Week was delayed until today.

One of the topics we discussed was the impact of the Supreme Court's ruling in U.S. v. Windsor, striking down portions of DOMA, on Pennsylvania employers. As luck would have it, we got a great illustration earlier in the week from the Eastern District of Pennsylvania in Cozen O'Connor v. Tobits (opinion here via c2essentials).

The case provides a great illustration of how complicated things can get in this post-Windsor world. The case involved a woman who participated in a Pennsylvania law firm's plan that provided for a survivorship annuity to her beneficiary upon her death. Sadly, she passed away. The issue was whether she has a "spouse," who would be the default beneficiary (if not, the survivor benefits go to her parents). Whether ERISA recognized her same-sex partner as her spouse should give us our winner.

Well, you say, Pennsylvania does not recognize same-sex marriages so the parents must win, right? Not so fast! She was married to a woman in Canada, which does recognize the marriage. But wait, Pennsylvania does not have to recognize that marriage. Well sure, but she and her wife were domiciled in Illinois, so we should look to their laws (at this point, the seminar attendees and I had a good chuckle - Pennsylvania employers deciding beneficiaries based on whether Illinois recognizes Canadian same-sex marriages . . . it's all so simple, right?). Just when you think it can't get any more convoluted, we get one more curve ball: Illinois recognizes the Canadian same sex marriage as a "civil union."

Frankly, the Court's legal analysis was a little thin, dispatching this case in a mere 12 pages. Suffice it to say that the Court concluded the same-sex partner was a spouse under ERISA based on Illinois' recognition of the marriage. DOMA defined "spouse" for over 1,000 federa
l statutes - so expect a lot more cases like this as we wade through these issues.

Friday, July 26, 2013

Federal Court Denies Social Media Discovery Request - COTW #153

Today's Case of the Week addresses social media discovery in an FLSA collective action.

The case:
Jewell v. Aaron's, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013).

The discovery request:
Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron's store.
The problem:
The case involved meal breaks, and the social media evidence requested may not even be relevant. "The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19."

The defendant did provide some examples, including a Facebook post from an employee who expressly stated that he was "on lunch." The defendant also hoped that it could cobble together 30 minutes of break time based on social media posts provided in response to their request.

It was not enough for the Court though. The Court noted:
[T]he burden of requiring all 87 opt-ins to review all of their postings on potentially multiple social networking sites over a four year period and match that information to their work schedules would be an extremely onerous and time-consuming task. Defendant acknowledges that the lunch hour of any sample opt-in is a potentially moving target.
The holding:
The Court denied Defendant's motion to approve its request for production.

See also: Court Denies Employer's Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded ... Leave the Water Gun at Home, by Sara Hutchins Jodka at Porter Wright. HT: Brian Hall via Twitter.

Friday, July 19, 2013

NLRB: Social Media Policy is a Mandatory Subject of Bargaining - COTW #152

The latest Case of the Week comes in the form of an NLRB advice memorandum regarding Giant Food LLC. While these NLRB social media memos have lost some of their mystique as more have been released, they still include some interesting tidbits.

One interesting aspect of this memo is its application to the NLRA's collective bargaining requirements:
Initially, we note that the social media guidelines are a mandatory subject of bargaining that the Employer was required to bargain over before implementation. The Board has long held that work rules that could be grounds for discipline are mandatory subjects of bargaining. Further, as the social media guidelines impose a new independent basis for discipline, there was a "material, substantial and significant" impact upon bargaining unit employees' terms and conditions of employment. Thus, the Employer was required to bargain over the policy.
Readers will no doubt be *shocked* to learn that the NLRB also found some substantive problems with the policy itself.

HT: Reed Smith Employment Law Watch via Eric Meyer on Twitter.

Friday, July 12, 2013

Employer Sues Ex-Employee for Not Updating LinkedIn Profile - COTW #151

Recently, an employer took a shot at suing an ex-employee for fraudulent misrepresentation over his failure to update his social media accounts. The employer claimed he "falsely represented on social media outlets, such as LinkedIn, that he held the position as JAVS' International Managing Director after his date of termination." Jefferson Audio Visual Sys., Inc. v. Gunnar Light, 3:12-CV-00019-H, 2013 WL 1947625 (W.D. Ky. May 9, 2013).

Unfortunately for the employer, this claim was dismissed. The employer admitted that it had not relied on the representation, a necessary element of the cause of action. The Court was apparently unimpressed by the employer's theory that the ex-employee had defrauded "the world."

So, what can employers do? Well, they can send a bunch of demand letters (which this employer did . . . and it ultimately worked). But what about causes of action? I'm not an IP guy, but maybe there's an IP issue here (using company trademarks?)? If the employer incurred actual damages, like losing customers, it could raise an interference with contractual/economic relations issue. It almost sounds like an invasion of privacy - false light issue, but I'm pretty sure (don't quote me on this) that corporations lack standing to bring such claims. Defamation maybe?

Drop a comment if you have an idea!

Update: One option is to have employees sign contracts to update their social media profiles upon termination. The employers would have a breach of contract cause of action then. Sounds pretty burdensome though.

Friday, July 5, 2013

No Brazilian Wax, No Job - COTW #150

Sometimes, the complaint really does a nice job of laying the facts bare to support the claims with more than just naked allegations. OK, I planned on a pun-laden post here, but most of the puns I could come up with seemed horribly inappropriate (even for this blog).

The plaintiff was a trainee at a spa. Let's just check out the complaint (via Eric Meyer):
2. On October 1, 2012, Finley attended her first day of “training,” which was run by an EWC Corporate representative. The corporate trainer announced that, as part of this “training” program, Finley and her co -workers were required to perform “Brazilian - style” waxes on each other the following day. A “Brazilian” is a method and style of public hair removal, in which one applies a heated adhesive wax to the pubic hair on or near another’s anus and genitalia, and then forcibly removes that wax and hair by “tearing” the adhesive from the person’s skin. 
3. Finley refused to comply with this “training,” because it was humiliating, painful, embarrassing, and discriminatory. Moreover, Finley was scheduled to begin menstruating on the same day she was expected to have the Brazilian wax, and expected to be extremely sensitive in the most private region of her body.
4. When Finley explained her opposition to the mandatory “Brazilian” waxing, and explained that receiving a “Brazilian” wax would be extremely painful and humiliating because of her menstruation, the corporate trainer responded that she should “put in a fresh tampon and take and ibuprofen and you’ll be fine.” 
5. Finley promptly approached the owner of the Wexford Spa, and explained to him that she refused to submit to a “Brazilian” wax performed on her by her co-workers, and that the Employers could not require her to do so. Finley was terminated immediately.
And, in case it wasn't clear:
22. Finley objected to the Brazilian wax portion of the training because it is often an extremely painful experience, because she did not want to expose her anus and genitalia to her co-workers, because she did not want her co-workers to touch her anus and genitalia, and because she simply did not want to have her anus and pubic hair removed.
Well, that's something I think a lot of people can relate to. The complaint includes claims for sex discrimination, sexual harassment, and retaliation. It also includes a creative claim for wrongful termination in violation of public privacy. What's the public policy? Invasion of privacy torts and the sexual battery statute.

Not surprisingly, this case has received some media attention - like this Huffington Post article - for the important employment law issues, I'm sure (HT: Mike Chittenden via email).

Friday, June 28, 2013

SCOTUS Employment Law-Palooza - Case(s) of the Week #149

I couldn't do it. I absolutely could not pick just one case and run with it for the COTW. Instead, I'm going to take a look back at this crazy week of important Supreme Court employment law developments.

We started off with a bang, as SCOTUS issued two wins for employers in what I'll call "pure" employment law cases:
Before the Court even started handing down opinions on Monday, it issued an order with some employment law implications:
  • The Court granted certiorari in Noel Canning. This is technically a constitutional law case about the recess appointment power of the president . . . but the recess appointments in question are NLRB appointments so there are labor issues at play.
  • Things were so crazy that SCOTUS granted cert in a Labor Management Act case and I didn't even have an opportunity to blog about it. But check out the SCOTUSblog page for Unite Here Local 355 v. Mulhall (about bargaining away labor rights - employer promised not to oppose union representation and granted union access to its property, and union agreed to forego rights to picket, boycott, etc.).
Finally, we had some not-quite-employment-law cases that still drew some interest from the employment law crowd.
I'm not saying this was the most important week in employment law history . . . but in terms of quantity of Supreme Court employment law-related decisions, it has to be one of the busiest.

Friday, June 21, 2013

SCOTUS: Arbitration Clause Prevails Over Class Actions (Shocker) - COTW #148

Well, the Supreme Court was extremely disappointing yesterday . . . they didn't decide a single case on my watch list. Since next week will likely be the last week of the term, things should get crazy around here with a number of important decisions.

The Supreme Court did, however, issue an opinion with employment law implications: American Express v. Italian Colors (opinion here). The case involved the enforceability of an arbitration clause, which is pretty much all you need to know to guess how this case turned out. SCOTUS LOVES ARBITRATION (at least a majority does).

So, what was the actual holding? I like the way Mike Gottlieb describes it on SCOTUSblog:
[A]n arbitration agreement that precludes arbitration brought by a class of plaintiffs is enforceable under the Federal Arbitration Act (FAA) even if the proposed class of plaintiffs proves that it would be economically infeasible for individuals to pursue arbitration on their own.
The case involved a credit card company against a potential class of merchants . . . so, what does this have to do with employment law?

Well, just maybe, employers want to include clauses in employment contracts that prohibit their employees from combining to file class action lawsuits . . . or say, FLSA collective actions. Thomas Kaufman has a nice rundown of arbitration decisions, noting:
[A]ny argument that FLSA collective actions are immune from class/collective action waivers because the FLSA (like the ADEA in Gilmer) itself provides for collective actions is also dead.
Michael Fox also has some "jottings" on the employment law implications of this case.

Bottom line: Class action waivers in arbitration clauses are starting to look pretty darned good . . . and enforceable.