The Fair Labor Standards Act (which covers minimum wage and overtime rules) does not require workbreaks. Many employees mistakenly believe that they need to be given a 15 minute paid break for every eight hours worked - or some variation of that rule. This is a myth and is not required by federal law. (Some states, but not Florida, have greater workbreak protections).
But at least one break is now required. Breaks for breast feeding. The Department of Labor put out new regulations requiring reasonable unpaid break times for breast feeding mothers for up to one year and for non-exempt (hourly) employees who work at firms with at least 50 employees.
If you're an employer with a breastfeeding employee or a woman who is being harassed about breastfeeding or anything else having to do with your pregnancy, feel free to contact Sarelson Law Firm to learn your legal rights and obligations.
Sexual harassment lawsuits are difficult. Garden variety sexist comments and flirtations are not sufficient to justify a lawsuit. But apparently something happened over at Hewlett-Packard that resulted in the CEO receiving a $12M severance package that, according to published reports, is going to wind up going to the woman who complained that the CEO was sexually harassing her.
The short story is this: Demand letter is sent to HP's CEO accusing CEO of sexual harassment. CEO tells general counsel. General counsel announces CEO's resignation with hefty severance package. The full story is here. (Actually the "full story" will almost certainly never see the light of day).
Wow. Congrats to the plaintiff's attorney in Texas who handled that one.
The blog has previously commented that there has been a rise in gender discrimination lawsuits brought by men. For years, the stereotypical gender discrimination plaintiff was a female who was fired, demoted, passed over or otherwise discriminated against because she was a woman and the decisionmaker who took the adverse action was a man.
Those days are over. A recent article in the National Law Journal confirms that men are the new victims of workplace harassment and discrimination. The stigma is gone. If a man is fired because the employer wants a female for a particular role, it is just as illegal as if the woman was fired in favor of the man.
The blog has previously posted about the Eleventh Circuit's controversial opinion in Corbitt v. Home Depot. The appellate court, with a 2-1 majority, affirmed summary judgment in a steamy sexual harassment lawsuit. A district court judge, sitting by designation, wrote a forceful dissent. The panel's decision was immediately criticized and the Eleventh Circuit decided on its own - without being requested by any party - to vacate the panel opinion and to rehear the case en banc. It was widely anticipated that the full court would reverse summary judgment and overrule its much earlier decision in Mendoza v. Borden, Inc.. The Mendoza opinion made it next to impossible for victims of sexual harassment to get to a jury in federal court. Mendoza had also been widely criticized.
Earlier today, the Eleventh Circuit, at the request of both parties, dismissed the Corbitt case in its entirety. (No doubt because the parties settled the case). In dismissing the entire case, the Eleventh Circuit made clear that its original decision in Corbitt was and remains vacated. The controversial Corbitt decision is gone.
This may reflect a wholesale change in the Eleventh Circuit's sexual harassment jurisprudence. Of course, the original Mendoza decision, itself widely criticized, will remain binding law in Georgia, Alabama and Florida until another case finds it way to the appellate court. Plaintiff employment lawyers now have Mendoza squarely in their sights.
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.
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).
Title VII of the 1964 Civil Rights Act places liability on an employer who fails to take appropriate corrective action when female employees are being sexually harassed by co-workers, supervisors, and third-parties who are not employed by the offending employer. For example, if a company has a regular UPS or FedEx deliveryman who makes offensive jokes or engages in offensive conduct while on the employer's premises, female employees are well within their rights to complain to management that it needs to stop the conduct by the UPS driver. The fact that the UPS driver does not work for the employer is wholly irrelevant to the analysis. Failure to stop the sexually hostile environment is illegal, no matter the cause of the sexually hostile environment.
In Beckford v. Florida Department of Corrections, the Atlanta-based Eleventh Circuit Court of Appeals affirmed a jury verdict in favor of female correctional officers who were sexually harassed by inmates. This is the first time the Eleventh Circuit has affirmed liability premised on sexual harassment by inmates. Other circuits have made similar conclusions regarding inmates. The Department of Corrections argued that prisons should be exempt from Title VII because of the unique nature of prisons and inmates. The Court categorically rejected the Department's argument and held that prisons are no different from other employers. The Department knew that female officers were complaining about gender based abuse from inmates, but the Department did nothing to remedy the situation.
Beckford is also important because it reaffirmed the Eleventh Circuit's decision in Reeves v. C.H. Robinson Worldwide that the use of certain words, including cunt, bitch, whore and slut, are inherently gender based.
The unanimous opinion, authored by Judge Pryor, is here:
Judy Calibuso is a financial advisor with Bank of America here in Miami, Florida. She has alleged, on behalf of herself and all other similarly situated female employees, that Bank of America, through its subsidiary Merrill Lynch, systematically discriminates against female financial advisors by giving them less opportunities and a less favorable compensation scheme. Although Ms. Calibuso lives in Miami, the class-action lawsuit is pending in the federal district court in Brooklyn, New York.
The blog has previously covered employment lawsuits against Walmart, especially the massive Title VII case out of San Francisco and several Age Discrimination in Employment Act actions pending throughout the nation. Sarelson Law Firm actually is involved in some of the ADEA cases against Walmart.
The San Francisco-based Ninth Circuit Court of Appeals, sitting en banc with 11 judges participating, upheld the district court's certification of a class of nearly 1.5 million female employees of Walmart. The decision was 6-5 in favor of class certification, and two judges wrote blistering dissents. In light of the potentially billion dollar exposure for Walmart, you can bet a petition for certiorari with the Supreme Court is being briefed as I write this.
Pregnancy discrimination is rampant and on the rise. Both male and female managers can be biased against pregnant or expected to be pregnant women because of the stereotype of taking time off work and of being sick and out of the office a lot. According to the EEOC press release, Imagine Schools, a national charter school company, failed to retain two female employees because they were pregnant. The result for Imagine Schools was a lawsuit by the EEOC and a $570,000 settlement.
Since the Americans with Disabilities Act does not consider "pregnancy" to be a disability, Congress amended Title VII to make clear that pregnancy discrimination is a form of sex discrimination and that it is illegal. Many states, including Florida, treat pregnancy discrimination as a form of sex discrimination without have a distinct statute like the federal counterpart.
Pregnancy discrimination is not limited to actually being pregnant. Being denied a job because the prospective employer believes you will become pregnant soon is still pregnancy discrimination. Being fired because you had or are contemplating an abortion is still pregnancy discrimination. Any discrimination or retaliation against a woman because she is, was, will be or is perceived to be pregnant is illegal. Sarelson Law Firm has experience representing victims of pregnancy discrimination. Call today before a problem arises.
The Equal Employment Opportunity Commision ("EEOC") announced that the Seattle-based Les Schwab Tire Centers will pay $2 million to settle claims that it discriminated against women by not hiring qualified women for jobs that included tire changing. Schwab operates 400 tire stores in Washington, Oregon, California, Idaho, Montana, Nevada, and Utah. The positions were sales and service department jobs that were a prerequisite for the more lucrative managerial positions. Schwab denied these positions to women for over 50 years and just recently promoted the first woman to an assistant manager position. One of the plaintiffs, who was demoted from sales when corporate took over the independently-owned store she worked at, was told "No gal in the company would ever make that kind of money. Gals should work in admin."
According to the EEOC, company founder Les Schwab's own published book exposes a corporate culture where men get the better jobs. Mr. Schwab's book describes how men can succeed in the company, reinforcing a decades-old idea that men do certain jobs and women do others. Mr. Schwab published the book some time ago, but a copy is still available for sale in every Les Schwab store.
The settlement concludes a gender discrimination class action suit filed in 2006. Schwab has also agreed to maintain anti-discrimination policies and provide training to all employees, as well as reporting to the EEOC to show its compliance.
The EEOC expects that this settlement will emphasize the importance of providing equal employment opportunities. Employers that place men and women in different types of jobs based on stereotypical views of what each gender is capable of doing are violating anti-discrimination laws.
A settlement between Walmart and the U.S. Equal Employment Opportunity Commission concluding a sex discrimination lawsuit was accepted by the court on March 1, 2010. The EEOC sued Walmart for denying warehouse positions to female applicants from 1998 to 2005, in violation of Title VII of the Civil Rights Act of 1964. Walmart regularly used gender stereotypes when hiring for entry-level order filler positions, routinely telling female applicants that the positions were not suitable for women and that they preferred hiring young men. Walmart will pay $11.7 million in back wages and compensatory damages in addition to providing jobs to women as further relief. Pursuant to the settlement, Walmart must provide the order filler positions to eligible and interested females, ensuring that the first 50 available positions are filled by women. Additionally, Walmart has agreed not to discriminate in future hiring and not to retaliate against employees who exercise their rights by complaining about discrimination or becoming involved in investigations and legal proceedings.
A large settlement with a major employer like this one sends an important warning to all employers that they must stop discriminating on the basis of sex or face serious legal and economic consequences.
Despite Title VII being in effect for over 40 years, many employers still think it is permissible to engage in sex discrimination. Think an employer has discriminated against you at the time of hiring or promotion? Contact an experienced discrimination attorney today.
Sexual harassment and gender-based disrimination is illegal -- and it does not matter whether the person being harassed or discriminated against is a man or woman. Although Title VII was designed to empower women in the workplace, there is nothing in the law that limits its applicability to women.
Men are the new protected class that routinely find themselves being subjected to a hostile working environment because of their gender. Men with female bosses and female co-workers potentially face the same time of misconduct that women with male bosses can look to Title and the Florida Civil Rights Act to prevent. And men are facing a hostile work environment not just from women, but from other men. If a gay male supervisor harasses a straight male subordinate, and the harassment is of sexual nature, then it is illegal and violates federal and state law. Similarly, if a straight male supervisor harasses a gay male subordinate, then that too is illegal.
Bottom line -- all Americans have a constitutional right to be free from sexual harassment in the workplace. Of course not all flirtations or off-color jokes constitute illegal sexual harassment, but anyone who has every worked in even a medium sized office can testify to that "that guy" or "that girl" who takes it to whole new level. Too many courts have wrongly overcomplicated the analysis by considering the gender and sexual orientation of the harasser and the victim. This is silly and has absolutely no basis in federal or Florida anti-discriminatio and anti-retaliation statutes.
The Miami Herald, courtesy of the AP, has a great article on the subject. Sexual harassment against men is probably vastly underreported because most men would never complain or file a lawsuit because of the fear of embarassment or stigmatization. But that too shall pass in time.
Questions about sexual harassment? Don't wait until you're fired or you resign in protest -- it may be too late. Contact an experienced sexual harassment lawyer today.
A question that arises in almost every single employment lawsuit is whether a plaintiff/employee can or should bring suit while the plaintiff/employee is still employed with the employer/defendant. The answer is almost always yes you can and yes you should.
First, there is no restriction whatsoever about being employed when you file suit. In fact, many hiring decisions (a failure to get a promotion, a reassignment, a transfer) are "actionable" employment actions that are still subject to state and federal anti-discrimination and anti-retaliation laws. The law protects against more than just termination - much more.
Second, if you've hired the right attorney, there are several strategic reasons why you will want to start the lawsuit while you are still employed. To begin with, if the company fires or in any way retaliates against you for filing the lawsuit (or for even speaking to an attorney), then the company is engaged in what we employment lawyers call "an independant act of retaliation" that gives rise to yet another lawsuit.
Some employer's seem willing to rid themselves of current employees who sue even if it risks another lawyer. That seems to be the case for Walmart, which recently fired a female employee who was the plaintiff in a sexual harassment lawsuit against the retail giant. The National Law Journal article is here. Nothing is more challenging to an employer's employment attorney than a lawsuit or charge of discrimination brought by a current employee!
Moreover, since the employer is very likely to terminate and is very eager to get rid of the employee who files suit, the plaintiff has an additional bargaining chip that can be used to negotiate a fair settlement. As a practical matter, any settlement of an employment lawsuit for an employee still employed is going to involve the plaintiff/employee resigning from the company.
If you wait until after you are terminated or after you resign to speak with an employment attorney, then you are doing yourself a disfavor that could result in a much weaker lawsuit. Once you believe something is wrong at work, you should immediately contact an employment attorney to learn your rights and to discuss an effective strategy.
Casa Casuarina (Miami Beach's former Versace Mansion) was recently sued for sexual harassment. The facts are outright nasty -- according to the complaint in Hamon v. Casa Casuarina LLC (S.D. Fla. Case No. 10-20457), the owner of the mansion asked a female employee to bring him napkins and silverware, but when the employee showed up at his bedroom door, the owner was having sex with an unidentified woman. He then asked her to watch and to get another employee to watch. This sounds like it will turn into a nasty, juicy brawl of a lawsuit.
Sexual harassment law can be a dirty business because the facts are generally "adult-eyes only." Are you being sexually harassed at work? Are you being forced to perform or engage in an unwanted relationship to keep your job? Were you fired for not having sex with the boss? Contacted an experienced employment attorney as soon as possible.
Have you been denied a job because of your genetic information? Did your employer terminate you because it learned that you have a genetic predisposition to breast cancer, Huntington's disease or bipoloar disorder? Probably not -- but it's only a matter of time before someone, somewhere, is subject to a pre-employment genetic screening.
Thankfully the federal government is ahead of the curve on this one. The Genetic Information Nondiscrimination Act ("GINA") took effect on November 21, 2009 and broadly prohibits three things -- (1) using genetic information to make employment decisions, (2) obtaining genetic information about employees and prospective employees, and (3) disclosing genetic information. GINA also prohibits retaliation, in addition to discrimination, as almost all anti-discrimination laws do.
Employers cannot acquire or use your or your family member's genetic information --- or the family history of a disease or disorder --- when making employment decisions. GINA compliments the Americans with Disabilities Act because it covers potential disabilities that have not yet manifested themselves but that the employer believes will and will interfere with your ability to work. This is truly groundbreaking and the blog commends Congress for activing preemptively -- all too often anti-discrimination laws are long over-due reactions to morally objectionable workplace conduct. Here, Congress has acted before it becomes a widespead problem.
Worried how GINA might effect you or your company? Contact an employment attorney on the cutting-edge of employment law.
