Sexual Harassment: Federal Courts are a Big Part of the Problem

A big part of the problem re. epidemic sexual harassment in the workplace involves the dismissive treatment that federal judges (of both sexes) have historically accorded to victims of sexual harassment.  Here’s a story I wrote a while back that may curl the hair on the back of your neck.  The story involves incompetence by a federal agency and a blood curdling lack of empathy by a female federal judge to women who were subjected to extreme sexual harassment and even assault when they attempted to improve their lot in life by becoming truck drivers. PGB

 

JUDGE WHACKS EEOC WITH $4.7 IN FEES AS SEXUAL HARASSMENT CASE OF FEMALE TRUCK DRIVERS CRASHES AND BURNS

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST.

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.

Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

The other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST.

In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.

 The  appellate court generally agreed female complainants claims that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex by a superior to qualify as being harassed.)

However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.

The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke.

The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.

Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

The final award to CRST is actually larger than the earlier award because Judge Reade included fees and costs expended by CRST related to the appeal.

Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

Urban Outfitters “Asks” Salaried Workers to Volunteer

Can an employer ask a worker to “volunteer” to work on weekends?

This concept is being tested by the affluent retailer Urban Outfitters, Inc., which asked salaried employees at the company’s Philadelphia corporate headquarters to “volunteer” to work six-hour shifts on weekends throughout October at the  company’s new fulfillment center about 50 miles outside Philadelphia.  Urban Outfitters operates under the Anthropologie, Bhldn, Free People, Terrain and Urban Outfitters brands.  Somewhat ironically,  the company announced in August that its total  net sales had increased in the second quarter by 7% over the prior year to a record $867 million.

A memo leaked  to Gawker  states that “volunteers” will “work side by side with your [fulfillment center] colleagues to help pick, pack and ship orders for our wholesale and direct customers.” The memo continues: “In addition to servicing the needs of our customers, it’s a great way to experience our fulfillment operations first hand. Get your co-workers together for a team building activity!”

Salaried workers are exempt from the protection of the Fair Labor Standards Act of 1938, which established the 40-hour work week and regulates the payment of wages and overtime.  They can be forced to work uncompensated overtime. But it’s a different thing to ask workers – even salaried workers –  to volunteer. The FLSA prohibits for-profit employers from permitting any individual to “suffer or permit to” work without compensation. The definition of “volunteer” is to work without compensation. So it stands to reason that for-profit employers cannot ask any employee to “volunteer” to work.

The situation demonstrates the problems facing workers who are exempt from the FLSA – especially poorly paid white-collar workers.

Urban Outfitters’ CEO; Richard Hayne’s net worth is approximately $1.35 billion (according to the Forbes billionaires list) but many white-collar workers are not so lucky. They are  barely paid enough to put food on the table.  The FLSA’s “white collar” exemption applies to employees whose job duties primarily involve executive, administrative, or professional duties and who earn a salary of at least $455 per week or $23,660 a year. This poverty-level paycheck is particularly brutal for single parents (mainly women) who must schedule and pay for child care. And, let’s face it, an employer’s request for volunteers is inherently coercive. Only a courageous worker can pass up an opportunity to experience the fulfillment center “first hand” in a “team building activity”?

Last summer, the U.S. Department of Labor (DOL) announced a proposed rule to amend the FLSA “white-collar” exemption to eventually eliminate the exempt status of an estimated 21.4 million“white -collar”employees. The DOL’s proposed regulations dramatically increase the minimum salary threshold for exempt status workers to $970 per week or $50,440 per year. This represents the 40th percentile of earnings for all full-time salaried workers throughout the United States.

But for now, it appears that salaried workers at Urban Outfitters who don’t want to risk their jobs by refusing to “volunteer”  will be spending their weekends packing overpriced clothing into cardboard boxes.

It should be noted the FLSA does permit individuals to volunteer in the non-profit sector for religious, charitable, civic or humanitarian  organizations and to perform volunteer services for a state or local government agencies. Indeed, the U.S.Department of Justice  has the gall to retain licensed attorney volunteers for up to a year at a time to work as unpaid prosecutors along-side Assistant U.S. Attorneys who earn a starting salary of more than $75,000. Instead of leading the nation, it seems the federal government, including the Office of Personnel Management,  is intent upon perpetuating  hiring practices that are sadly antiquated and even discriminatory .

Chamber Renews Assault on EEOC

ProstrationIt is hard to believe but the U.S. Chamber of Commerce has accused the U.S. Equal Employment Opportunity Commission (EEOC) of overreaching in enforcing our nation’s employment discrimination laws.  Hard to believe because the opposite is true.

Due to budget and staff cuts, the EEOC is litigating the fewest number of cases in modern history –148 in 2013 compared to 314 in 2009 and 416 in 2005. The EEOC has practically ignored the epidemic of age discrimination that has persisted since the start of the Great Recession in 2007. The EEOC received 21,396 complaints of age discrimination in 2013 but filed only seven lawsuits that year with claims under the Age Discrimination in Employment Act.

All of this makes it supremely ironic that the Chamber, which describes itself as “Standing Up for American Enterprise,” is urging the Congress to  treat the EEOC as if  it is a rogue agency that is bent on crushing the last vestiges of free enterprise in America. Continue reading “Chamber Renews Assault on EEOC”

Is the EEOC’s Strategic Plan Enforceable?

Hostile Courts Present Obstacle to Success

The U.S. Equal Employment Opportunity (EEOC) has come under attack in recent weeks in federal courts, raising questions about its ability  to implement its new strategy of filing systemic lawsuits.

Earlier this month, Judge Roger Titus of the U.S. District Court for the EEOCDistrict of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013),

In another case,  EEOC v. CRST Van Expedited, Inc.,  Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled  that the  Commission  must pay CRST, one of the nation’s leading transport companies,  a judgment of $4,694,422.14  stemming from a lawsuit filed by the EEOC alleging sex discrimination on behalf of  trainee Monika Starke and other similarly situated employees.  She had earlier dismissed the lawsuit.

In their decisions, the judges eviscerate the performance of the EEOC, the federal agency that is responsible for enforcing the nation’s discrimination laws.

All of this occurs in a climate that is not favorable to workers’ rights.   The U.S. Supreme Court is the most anti-employee court in modern history and has issued  decisions this year making it more difficult for workers to win class action and  discrimination cases. Research also shows that discrimination cases are dismissed at a higher rate in federal court  than other types of cases. 

Freeman

In the Freeman decision, Judge Titus points to the seeming irony of the EEOC’s goal of  prohibiting  background checks in hiring.   He notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. Judge Titus acknowledged that credit and criminal background checks adversely affect some groups  more than others but maintained that these checks are essential.  According to Judge Titus:

 “Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII.  However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States …”

Judge Titus also bashed  the expert report prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. He excluded it as evidence in the case on the grounds that  Murphy used an incomplete and inaccurate database. The  EEOC blamed  Freeman for failing to produce sufficient  information during discovery.

CRST

In the CRST case, Judge Reade castigated  the EEOC for failing to properly identify  potential class members. She expressed concern that the EEOC subjected CRST to a “moving target’ of prospective plaintiffs.”  

Judge Reade dismissed  more 67 potential class members from the lawsuit because the EEOC failed to  “conciliate” or attempt to reach a settlement in those cases –even though the EEOC took the position that this was not required.

Fair?

Whether or not these federal judges were fair to the EEOC,  the dismissals are disconcerting.  They represent a huge expenditure of scarce federal resources to combat a huge national  problem – employment discrimination and harassment. The number of lawsuits filed by the EEOC has declined dramatically over the years, from a high of 465 in 1999 to 155 in 2012.   

The EEOC last year  approved a Strategic Enforcement Plan to promote  more strategic use of agency resources.

The EEOC’s budget  has generally increased  in recent years – until last year. The EEOC’s budget was $341,900 million in 2009; $367,303 million in 2010; $385,303 in 2011; and $ 373,711 in 2012.

Judge Whacks EEOC With $4.7 in Fees

Case of Female Truck Drivers Crashes and Burns

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

 Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST. 

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.  

 Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

 Starke’s other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

 Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

 In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST. 

  In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

  In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

 Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

 The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.  

 The  appellate court generally agreed that claims by female complainants that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex to qualify as being harassed.)

 However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

 The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.  

 The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

 Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

 After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke. 

 The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.  

 Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

 The final award to CRST is actually larger than the earlier award by Judge because Judge Reade included fees and costs expended by CRST related to the appeal.

 Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

 

‘Catch 22’ in FMLA Case

No Way Worker Could Win?

Remember Catch 22, the problem with no solution due to obtuse and cyclical reasoning?

A three-judge panel of the U.S. District Court of Appeals for the Eastern District of Missouri has issued a “Catch 22” opinion in denying legal relief to a welder who was fired after her employer forced her to take leave under the Family and Medical Leave Act (FMLA) even though she was healthy.

Trinity Marine Products, Inc. forced the welder, Tracy Walker, to take FMLA leave to get a doctor’s opinion about whether she had a serious medical condition. The doctor said she did not have a serious medical condition and was fit to work. Then Trinity required Walker to get a second opinion from a another doctor, who agreed with the first doctor and said Walker was fit for work . Then Trinity instructed Walker to consult a physician at Vanderbilt University Medical Center.

The Vanderbilt physician sent Walker a letter in which he agreed that Walker had no serious medical condition and was able to return to work without restrictions. Walker presented the letter to Trinity on Sept. 8, 2009 whereupon Trinity fired Walker on the grounds that she had exhausted her FMLA leave in August 2009.

Walker sued, alleging that Trinity interfered with her rights under the FMLA by placing her on involuntary FMLA leave even though she was healthy and then refusing to permit her to return to work. Trinity responded that Walker could not seek relief under the FMLA because “she never suffered a serious health condition that entitled her to take FMLA leave in the first place.”

The appeals court agreed with Trinity’s cyclical logic. The court said the FMLA prohibits an employer from interfering with, restraining or denying an employee’s exercise or or attempt to exercise rights under the statute. However, the Court states:

“… Walker admits that she never suffered a serious health condition within the meaning of the Act, [so] we conclude that she has no right to the benefits provided by the FMLA.”

Walker also raised the issue of  fairness, claiming that Trinity treated her as having a serious health condition and it is only fair that Trinity should be bound by that designation.

The appeal scourt denied the equitable claim, finding that Walker did not demonstrate she suffered monetary losses as a result of Trinity’s alleged interference with her FMLA rights. The court rejected Walker’s argument that she was required to travel to go to numerous medical examinations at Trinity’s insistence.  According to the court: 

“Trinity’s mistaken belief that Walker suffered a serious health condition could not entitle Walker to the benefits of the FMLA.” 

So Walker’s case has been thrown out of court, without ever reaching a jury.

The term Catch 22 is derived from  a 1961book  about the insanity of war by author Joseph Heller.  Here’s the passage:

“There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle..”

Strippers are ‘Employees’

When is a worker  an employee who is entitled to a salary and unemployment benefits?

This question was at issue in a Kansas case that sheds light on the exploitative world of strip clubs and so-called gentlemen clubs.

Shortly after Milano’s, Inc. purchased a Topeka strip club called Club Orleans in 2002,  company President John Samples began treating the club’s exotic dancers as independent contractors rather than employees.  This meant the dancers were no longer paid even a nominal weekly wage, instead earning only tips paid by customers of Club Orleans. And they were not paid health or insurance benefits.

In 2005,  one of the dancers filed an unemployment claim, prompting the state to assign an auditor to investigate Milano’s. The auditor concluded  the dancers were not independent contractors but were employees under Kansas law.

Milano’s challenged the auditor’s determination on various technical grounds and two  lower courts upheld the determination. The case finally reached the Supreme Court of the State of Kansas.

Earlier this month, the Kansas Supreme Court  ruled that the determinative question was whether the dancers had the status of employees under common law rules that determine the employer-employee relationship. The Court said in Milano’s, Inc. v. Dep’t of Labor that the critical common-law factor in the analysis was the employer’s right of control over the employee and her work.

The record showed that the dancers were required to sign what was essentially  a “contract for hire” in the form of an application to work at Milano’s. The contract required the dancers to  abide by the house rules and gave Milano’s the right to fine or terminate the dancers.  Furthermore,  Milano’s, without consulting the dancers, adopted a  minimum tip policy for various types of dances and required the dancers to accept drinks from customers. Milano’s enforced the house rules.

According to the Court:

“Ample substantial competent evidence in the record before us, as echoed in the factual findings below, demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans. Most telling, the house set various rules, and dancers’ violations of those rules were punishable by fines and termination.”

The Court concluded that exotic dancers subject to a right of control by the owner of the club where they perform are employees under the “usual common law rules” incorporated into K.S.A. 44-703(i)(1)(B) of the Kansas Employment Security Law.

Although the ruling was limited to unemployment insurance benefits, it could have an impact on other independent contractors who seek employee status to be eligible for employment benefits such as workers compensation, disability benefits, etc.

Wage theft is epidemic  in the United States, according to the Progressive States Network (PSN),  a non-partisan, non-profit organization dedicated to supporting the work of progressive state legislators around the country and to the advancement of state policies that support issues that matter to working families.

Wage theft occurs when employers  misclassify workers as exempt employees when they are actually non-exempt employees (who are entitled to overtime)  or  misclassify workers as  independent contractors when they are truly employees.

The PSN estimates that more than 60 percent of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year.  For low-wage workers, that amounts to 15 percent of their annual income, at average earnings of $17,616 per year.

SEXUAL HARASSMENT, DINE EQUITY & PEANUTS

peanutsThe EEOC has been settling lawsuits at a frenzied pace of late, some for the monetary equivalent of peanuts.

This week, the EEOC settled for $1 million a sexual harassment case filed against IHOP restaurants in New Mexico that are owned and operated by Fahim Adi.  The EEOC says the case is the second-largest litigation settlement ever reached by the EEOC’s Albuquerque Area Office.  An EEOC press release says:  “At least 22 women are expected to receive relief through the decree.”

If it  is only  22 women and they split full amount of the award equally among themselves  – without any deductions by the EEOC for fees and costs – they will each get about $45,454.

I submit that this is not a large amount of money for women – some were teenage girls – whom the EEOC says were subjected to sexually offensive conduct by Lee Broadnax, then manager of the defendant’s IHOP restaurant. The EEOC doesn’t go into details but says Broadnax’ illegal conduct included sexual comments, innuendo and unwanted touching (i.e., otherwise known as battery).

Some of the women were forced to quit their jobs because IHOP did nothing when they complained.  People who work as servers at a pancake house generally are not well-to–do and this is not an economy where jobs are easy to find.  Some of the victims were pretty college girls en route to a better future but others were mature women (including several members of a minority group).

One wonders how many IHOP  employees were forced to tolerate abuse because they had children to feed at home and no other options?

The figure of $1 million particularly pales when one considers the IHOP brand is owned by Dine Equity, Inc., which is based in Glendale, California and also owns the Applebee’s Neighborhood Grill & Bar brand.

According to Nation’s Restaurant News  magazine, Dine Equity had $7.9 billion in food service sales in 2011, making it  the ninth rranked in the United States for  “systemwide foodservice sale.”  For the quarter ending Sept. 30, 2012, DineEquity’s net income almost quadrupled to $58.7 million.  DineEquity operates almost entirely through subsidiaries and over 400 franchisees, which operate 1,842 Applebee restaurants and 1,535 IHOPs  around the world.

Dine Equity  vigorously enforces any encroachment upon the the IHOP brand.   One wuld hope that Dine Equity also would vigorously enforce the human rights of employees in IHOP and Applebee restaurants.  What could Dine Equity do?  For one thing, Dine Equity could train franchisors to follow  discrimination laws and respond appropriately to complaints. Dine Equity also could get rid of franchisors that tolerate hostile work environments and fail to respond to discrimination complaints.  Now that would get their attention!

Don’t get me wrong. If the EEOC had not taken on this case, it is quite possible that some of these victims would not have gotten anything at all (except, possibly Post Traumatic Stress Syndrome).  Courts seem to be utterly unsympathetic to victims of employment-related discrimination these days, which is probably why it is so prevalent in society. Poor people can’t afford to hire lawyers and pay court costs.  But lets get real – $1 million is  not exactly a windfall for people who likely suffered emotional trauma and stress and whose lives were completley upended by an IHOP franchisor.

In addition to the monetary relief, the decree prohibits the defendants’ IHOP restaurants from further discriminating or retaliating against its employees and requires IHOP to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation. The defendants must also provide its employees in Bernalillo and Sandoval County IHOPs with anti-discrimination training and notice of the settlement.

In this case, the IHOP franchisor ignored the women’s sexual harassment complaints. Training cannot solve an employer’s lack of motivation to protect its workers from sex discrimination.

The Best is Yet to Be?

Grow old along with me!
 The best is yet to be,
 The last of life, for which the first was made.
– ROBERT BROWNING

An AARP national survey points to the existence of  a climate of fear among older workers of seemingly  pervasive and unchecked age discrimination in America.

The AARP survey finds that 64 percent of older American voters think workers over the age of 50 face age discrimination in the workplace and 34 percent report that they or someone they know has experienced age discrimination in the workplace.  Meanwhile, older workers face increased pressure to work longer than ever before as a result of dwindling savings and disappearing pensions.

In addition, the AARP reports roughly 8 in 10 older American voters say:

  •  It is important for Congress to take action and restore workplace protections against age discrimination (81%).
  •  Across party and ideological lines, they support the Protecting Older Workers Against Discrimination Act (POWADA) (78%).

Age discrimination has flourished since the U.S. Supreme Court ruled in 2009 that workers who assert they are discriminated against because of their age have a higher burden of proof than workers who  are discriminated because of their race, sex, national origin, religion, etc. (see Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009))

The proposed POWADA would restore the previous legal rules and protections that existed before the 2009 decision.

POWADA was introduced in March by  Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT).  Harkin is Chairman of the Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

The AARP notes the unemployment rate for older workers has soared in recent years, and once out of work, older jobseekers experience far longer spells of unemployment – well over a year, on average – than their younger counterparts.   The AARP says age discrimination is one of the significant reasons why it takes so much longer for older jobseekers to become reemployed.

The Supreme Court decision requires age discrimination victims to show that  “but for” age discrimination they would not have suffered an adverse employment action.  In other words, they must prove that age was the decisive factor in how they were treated.

 Prior to the ruling, age discrimination victims, like other discrimination victims, were required to show only that discrimination was a factor behind how they were treated.  The employer then was required to show that discrimination was not a factor.

The number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

Here are some other findings in the AARP survey:

  • Seventy-seven percent of respondents are concerned that their age would be an obstacle  to finding work if they had to find a new job in the current economic climate;  56% say they are “very concerned.”
  • Ninety-one percent agree that older Americans should be protected from age discrimination just as they are protected from other forms of discrimination, including a 73 percent supermajority of respondents who strongly agree.

The AARP (a.k.a. the massive insurance company) describes itself as a nonprofit, nonpartisan organization with a membership that helps people 50+ have independence, choice and control in ways that are beneficial and affordable to themand society as a whole.

“Cyber-Bullying” Charge is Excuse to Downsize

by PGB

The National Labor Relations Board recently issued the first decision by a Board Administrative Law Judge involving employee use of social media, finding parallels between postings on Facebook and gripes around the proverbial “water cooler.”

In Hispanics United of Buffalo, Inc., Administrative Law Judge Arthur J. Amchan noted the employer conceded that it would have  fired the five employees in question if their activity had taken place around the water cooler.

“Thus, the only substantive issue in this case …. is whether by their postings on Facebook, the five employees engaged in activity protected by the Act. I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.”

On September 6, 2011, Judge Amchan ordered the fired employees reinstated with back pay.

Here’s the scenario:

Lydia Cruz-Moore, an employee of HUB, a non-profit organization that provides social services to the poor in Buffalo, NY, was repeatedly critical of the level of service provided by her co-workers, whom she accused of slacking off.  She threatened to complain to the program director.

One of her co-workers initiated a Facebook discussion asking for responses  to  Cruz-Moore’s criticism. Five employees joined in the discussion,  and in the process made sarcastic and derogatory comments about Cruz-Moore and the expectations of  HUB’s clientele.

Cruz-Moore sent a text message to HUB’s Executive Director Lourdes Iglesias saying the Facebook posts constituted “cyber-bullying.”  Iglesias summarily fired the five employees involved in the Facebook discussion on the grounds that their comments violated  HUB’s “zero-tolerance” harassment policy.  She also told the fired employees that their comments caused Cruz-Moore to suffer a heart attack.

Amchan completely discounts Iglesias’ stated reasons for the terminations, finding that HUB was seeking to downsize and “seized upon the Facebook posts as an excuse for doing so.”

He concluded  the Facebook discussion was concerted protected activity under the National Labor Relations Act because the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels. He rejected as irrelevant the argument that the Facebook postings were not protected because persons other than HUB employees may have seem them.

Amchan also notes the Facebook posts were not made at work or during working hours and were not critical of HUB. He said HUB failed to establish for the record that Cruz-Moore had a heart attack or that there was any relationship between her health conditions and the Facebook posts. Also, he said, HUB failed to show that the employees violated any specific policies or rules.

Amchan said the fired employees “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.”

By discharging all of the employees on the same day, Amchan said, “Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped (them) together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted”

The case, which is numbered 3-CA-2787, is the first  involving Facebook to have resulted in an ALJ decision following a hearing. Hispanics United has the right to appeal the decision to the Board in Washington.

This NLRB has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.