Monthly Archives: July 2010

Hostile Work Environment Claims Require “Threatening” or “Humiliating” Comments

July 23rd, 2010

In Alansari v. Tropic Star Seafood, the Eleventh Circuit recently affirmed summary judgment for the employer where a black, Muslim employee alleged a hostile work environment. The plaintiff alleged that co-workers encouraged him to “find Jesus,” played Christian music on the radio and made derogatory comments about his Muslim faith. The court concluded that these comments, while unwanted and in poor taste, did not rise to the level of being threatening or humiliating and did not unreasonably interfere with the plaintiff’s ability to perform his job. As a result, the working environment was not considered “hostile” as that term is used in employment litigation. The seven-page, non-binding opinion demonstrates the difficulty employees face when filing hostile work environment claims. It also demonstrates that importance of contacting an experienced employment attorney while you are still employed and while the hostile environment is ongoing. Employees generally have an affirmative obligation to report hostile working environments to management and human resources before it becomes a lawsuit.

Posted in Racial Discrimination, Religious Discrimination | Comments Off

Aventura Limousine Sued (Again) for Unpaid Overtime under the FLSA — a/k/a Beware of the Limitations of the FLSA’s Motor Carrier Act Exemption

July 20th, 2010

Miami-based Aventura Limousine has been sued (again) for unpaid overtime. The company has been sued several tmes over the last few years for similar overtime violations. The cases highlight two very basic issues that have harmed employees and have tricked up otherwise law-abiding employers.
First, according to the pleadings, Aventura Limousine was not hiring drivers, it was contracting with independent contractors. Employees are subject to the Fair Labor Standards Act’s minimum wage and overtime provisions. Independent contractors are not employees, and thus the FLSA does not apply to them in any way. But this begs the threshold and dispositive question of who qualifies as an independent contractor?
The answer is deceptively complex. There is no clear, bright-line rule and the courts consider the issue on a case-by-case basis. This is of little help to employers. Unless the company can confidently demonstrate that it truly hired independent contractors and that it did not actually control them, most employers would be wise to settle up early and cheaply. Most of the time the employer loses this issue.
Employers need to retain an experienced employment attorney or an accounting firm to conduct an audit of what personnel are employees versus independent contractors. Aside from facing potentially enourmous civil liability by aggrieved employees, employers who misclassify their personnel face fines by the Internal Revenue Service. The government loses billions of dollars annually in unpaid payroll and income taxes.
Second, the case highlights the complexity of the motor carrier exemption. As a general rule, drivers, drivers’ helpers, loaders and mechanics are exempt from the overtime provisions. But the exempt employees still need to be engaged in interstate commerce, and scholars have argued over what constitutes interstate commerice since the founding of the republic.
Sarelson Law Firm has extensive experience litigation FLSA matters on behalf of both employees and employers, and has also advised employers on FLSA compliance matters.

Posted in Unpaid Overtime | Comments Off

Third Circuit: Law Firm Shareholder Booted Due to Her Gender Not Protected by State & Federal Anti-Discrimination Statutes

July 16th, 2010

The blog has previously posted about law firms being sued for age discrimination due to mandatory retirement policies. Senior partners of larger firms started complaining that they weren’t ready to retire and wanted to keep their equity and status. The Equal Employment Opportunity Commission even brought suit in one landmark case out of Chicago. And several law firms have changed their mandatory retirement policies in light of the Sidley experience. The emerging generally accepted legal theory was that law firm partners act and are treated more like employees than “owners” of the business, and as a result of the de facto status as employees, they were covered by state and federal anti-discrimination statutes.
Just when the debate seemed over, the Philadelphia-based Third Circuit Court of Appeals ruled that a female shareholder in a large, Pittsburgh-based law firm is not an “employee” for purposes of Title VII because, among other reasons, she could not be removed as a shareholder absent a 3/4 vote of the other shareholders. The terse opinion, which was deemed “non-precedential” by the court, affirmed summary judgment.
But the case highlights the complex, fact-intensive question of whether a shareholder can be treated as an employee. To determine whether a shareholder-director of a professional corporation is an employer or an employee entitled to invoke the anti-discrimination laws, the court looks at six factors: (1) whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work; (2) whether and, if so, to what extent the organization supervises the individual’s work; (3) whether the individual reports to someone higher in the organization; (4) whether and, if so, to what extent the individual is able to influence the organization; (5) whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; [and] (6) whether the individual shares in the profits, losses, and liabilities of the organization. The court ruled as a matter of law that given these six factors, no reasonable juror could rule in the female shareholder’s favor on the threshold issue of her status as an employee.
The short and non-binding opinion is here:
Kirleis v Dickie McCamey
This begs the question, what rights does a female shareholder have against being ousted due to her gender? The answer, for all intensive purposes, is none. (A different federal civil rights statute would protect a black shareholder from being ousted due to his race, but that statute does not apply to gender based contractual decisions).
Questions about sex discrimination? Contact an experienced discrimination attorney today.

Posted in Sex Discrimination | Comments Off