Spiffy Uniforms Mean Big Bucks, December 21, 2007
A collection of police officers in San Leandro decided that all the time it takes to put on that peaky blue uniform should entitle them to overtime pay. Under federal law, employees are not entitled to pay for the time that it takes them to change clothes. According to United States District Judge Marilyn Hall Patel, the police uniforms are too special to be considered clothes. She wrote, "Though the uniform itself is not 'specialized' in its protective properties, its color, appearance and component parts provides a gravitas that serve as an effective deterrent against crime, thereby protecting the police officer." That makes a police uniform personal protective equipment and not clothes, she concluded. That comment kind of speaks for itself.
Multiculturalisms Clash with Itself, December 19, 2007
Anesh Gupta, an Asian male, wanted to work in the restaurant in the Norwegian pavilion at Disney World's Epcot Center. The pride of Epcot Center is its embrace of diverse cultures – an amusement park melting pot . Gupta does not speak Norwegian and is not of Norwegian extraction. Disney refused to hire Gupta for the job because he was not "culturally authentic." That decision was upheld as non-discriminatory by the federal appellate court because Disney treated other "non-culturally authentic" applicants the same way. Even in a temple to multiculturalism there are limits.
EEOC Owes Small Employer $36,000 For Frivolous Lawsuit, December 13, 2007
Eagle Quick Stop ("Eagle") is a convenience store located in Hattiesburg, Mississippi. In September 2005, the EEOC brought a lawsuit against the store on behalf of a former employee claiming retaliation in violation of Title VII of the Civil Rights Act. Evidence produced in discovery by both the EEOC and Eagle revealed that the store only had nine employees during the relevant time period, far short of the 15 employee threshold required for coverage under Title VII.
Even though the EEOC knew that Eagle was too small an employer to meet Title VII's jurisdictional requirement, the agency pressed on with the litigation. Eventually, as would be expected, the court granted summary judgment to the employer in February 2007.
In later proceedings, the court ruled that the EEOC must pay Eagle approximately $36,000 in attorneys fees because "whether a result of negligence, incompetence, or the force of bureaucratic momentum," the EEOC continued to litigate after learning the employer had less than 15 employees. The court rejected the EEOC's argument that Eagle should have reduced the amount of attorneys' fees by "doing more to defeat the commission's claim sooner," instead chastising the agency for not voluntarily dismissing the claim. EEOC v. Eagle Quick Stop d/b/a Sid's Discount Fuel, Case No. 2:05-cv-2074 (S.D.Miss. Nov. 29, 2007).
Employer that Sued Employee for Breach of a Settlement Agreement Found Liable for Retaliation, December 4, 2007
Employers sometimes want to sue a former employee for the breach of a settlement agreement. But that is an idea that can backfire. Recently, in Harrell v. Sysco Foods of Baltimore, DOL ALJ, No. 2003-STA-00050 (November 29 2007) an Administrative Law Judge from the U.S. Department of Labor held that Sysco Foods owed its former employee James Harrell the money it recovered from him in Maryland state court for breach of contract. The ALJ found that, even though Harrell DID in fact breach the settlement agreement, the only reason Sysco sued him was because Harrell had not withdrawn a pending DOL whistle blower claim. Hence, the retaliatory action by Sysco permitted the ALJ to award Harrell the $187,305 he was ordered to pay to Sysco by a Maryland court, as well as compensatory damages linked to his attorneys' fees paid to defend Sysco's lawsuit and emotional distress damages. For background on Harrell’s Maryland lawsuit see Smelkinson SYSCO v. Harrell, 162 Md. App. 437, 875 A.2d 188 (2005).
You Can’t Really Expect to Do THAT at Work, Even if you are a Professor, December 4, 2007
Unless you work in the industry, watching porn at work is always a bad idea. In Patane v. Clark, No. 06-3446 (2d Cir. Nov. 28, 2007) the Second Circuit recently held that a college secretary who alleged that the professor who supervised her (he was a classics professor) regularly viewed hard-core porn in his office and required her to handle the videos could pursue her sex harassment and retaliation claims, and reinstated parts of her complaint dismissed by the district court. The court held that Patane's allegations that she observed the professor watch the porn, that he used her computer to access pornographic Web sites, and that she was required to unwrap pornographic videos while handling the professor's mail were sufficient to raise a Title VII harassment claim. The court also reinstated Patane's retaliation claim, which alleged that supervisors virtually eliminated her job duties and gave her a negative performance review after she complained about the porn. Under the Burlington standard, said the court, such alleged treatment would be "materially adverse" and could dissuade reasonable employees from bias complaints.
Experience in Government Contracting Should Have Told Employer to Ignore Vague DOL Advice, December 4, 2007
You are a government contractor whose employees work under the Davis-Bacon Act. You ask the Department of Labor for advice regarding local wage information. The advice you get is vague. You know asking local unions will get you nowhere, so you use "nationwide experience" and your own "tools of the trade" to set your rates. That’s a good defense to a claim that you did not pay your employees the appropriate wages, right? Not a chance, according to the D.C. Circuit. In Abhe & Svoboda v. Chao, No. 06-5305 (D.C. Cir. Nov. 23, 2007), the court held that a construction contractor was properly liable for $1.3 million in damages for failing to obtain local wage information from unions or properly classifying its painters under the Davis-Bacon Act. The court stressed that Abhe & Svoboda's experience in federal contracts and legal interpretation should have overcome vague guidance from the DOL, and that there was no reason the contractor could not have contacted local unions or DOL in determining prevailing wage rates.
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