Docking Pay From Salaried, Exempt Employees Is Illegal...And Very Common

The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren't eligible for overtime. Most people think of non-exempt employees as "hourly" and exempt employees as "salaried".

• Pro-Tip: Just because your employer pays you as salaried does not necessarily mean that you should be considered exempt and not entitled to overtime. Exempt employees are typically involved in management or high-level administration of the business. There are other exceptions as well but a good rule of thumb is this: if you are more like a rank and file line worker or clerical worker, you should probably be getting overtime. If you aren't you need to find a good employment lawyer.

As a general rule exempt employees are paid a salary and don't have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early - for doctor's appointment, child care, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, he or she must be paid for the entire day. That's the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee's pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA "exemption" as to that employee. This means the employee is owed overtime for all hours over 4o worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay.

Jury Awards Administrative Assistant $850,000 in Age Discrimination Lawsuit

A jury has awarded a Temple University executive assistant $850,000 in an age discrimination lawsuit alleging that, among other things, she was told by her boss, a Chinese national, that "in China, they put women out to pasture at your age" (Briggs v. Temple University, No. 16-248 (E.D. Pa., July 19, 2018)).

After she was fired, Ruth Briggs sued the Philadelphia-based school, claiming age discrimination and hostile work environment during her tenure as an executive assistant to the chair of the university’s computer and information sciences department. Briggs also said she suffered retaliation when she repeatedly complained to the university’s human resources department. The university, however, said she was fired for performance deficiencies.

A unanimous federal jury awarded Briggs compensatory damages of $350,000 for pain and suffering, back pay loss of $250,000 and $250,000 in liquidated damages.

Read local media report here. 

What should I do if I'm being retaliated against at work?

I get a lot of questions from readers on all kinds of topics. For a myriad of reasons, it would not be appropriate for me to answer a specific individual's question or to otherwise provide legal advice online. However, I can address general areas of concern in a general way. While I hope that this information is useful, be warned that you absolutely should NOT consider any information you read here to be legal advice as to your particular situation. Legal analysis is very fact and geographically specific. If you have a legal question, my best advice is that you contact an attorney who specializes in such matters in your area. 

After reporting to HR about my manager with the company groping me, the HR representative filed no report and called the offender in the office to have him apologize to me. No other action was taken. Now I am being investigated and harassed at work and I don't understand why. What should I do?

While not every employer handles internal reports of misconduct this way, situations such as this are, sadly, something I hear about all too frequently from employees who come to see me. An employee follows the rules and does what he/she is supposed to do by reporting discrimination or harassment to HR, only to then be further harassed and retaliated against in response to his/her report. Often this retaliation comes in the form of management "keeping book" or noting every error or perceived mistake made by the reporting employee in an effort to build a record for termination. Sometimes the retaliation is much more severe. I have had cases in which employees were moved to a less desirable office location, passed over for promotions, accused falsely of misconduct, etc. Such a situation can make going to work seem almost unbearable. And in fact, this is often the goal of the employer -  to make your work life so terrible that you feel you have no choice but to quit.

So what can an employee in this type of situation do? Here are some suggestions:

1. Document Everything in Writing - Your boss or HR representative might be saying all the right things and telling you everything is fine but those oral statements are easily forgotten once you have been fired and you are later trying to prove what was said. Your best bet: document everything in a way that is at least somewhat verifiable. If you need to report misconduct, harassment, or retaliation do it via a written letter or email. In either case, print yourself a copy of what you sent and take it home for safekeeping. If you have an important phone call or meeting with HR or your boss in which you outline the harassment and they promise to take some action, document it in a follow-up email to the HR rep in which you thank the rep for meeting with you and restate your understanding of what was said by both parties. Again, print yourself a copy and take it home.

   • But Chris...can't the HR Rep later deny that my email correctly summarizes what was said? -- Sure, I suppose they could try to say that. But everyone (including the jury) will wonder why they didn't reply to your email back when it happened to correct your summary.

2. Don't Make Unforced Errors - You know they are watching every move you make just hoping you screw up so they can fire you. So don't help them. Don't be late to work. Do good work. Get your reports in on time. Don't gossip and tell co-workers what a big jerk your boss is. etc. These are unforced errors and they will come back to bite you in the end.

   • What if your boss doubles your workload to make it impossible for you to meet quota? -- This happens a lot so don't be surprised if it happens to you. Don't let it make you so angry that you start acting out and thereby give the boss a legitimate reason to fire you. That's playing into his/her hands. Instead, do the very best job you can and document the retaliation by emailing HR to let them know what is happening (don't forget to print a copy and take it home) and then do your best to comply with the new work requirements. Keep your boss informed on your status by regularly emailing (keep a copy). Remember, in addition to actually trying to be a good employee under difficult circumstances, you are building the paper trail you and your lawyer may need later to prove you were trying to be a good employee under the circumstances.

3. Consider Filing a Charge with the EEOC and/or Visiting with a Lawyer - Know this: Once retaliation starts, it rarely gets better on its own. If a boss is retaliating against an employee, it signifies a type of "line in the sand". That boss has declared (perhaps only to himself or herself) that you have got to go...period. So don't beat yourself up when nothing you do to placate your boss seems to work. It may just be time to go outside for help. One choice is filing what is called a "Charge" with the Equal Employment Opportunity Commission ("EEOC"). Note that the EEOC only deals with EEO types of issues (race, sex, religion, disability, national origin) and retaliation if (and only if) you are being retaliated against due to an internal complaint that you were harassed or discriminated against based on one of those EEO categories. Another option that you really should consider is visiting with a qualified employment lawyer. If you have not been fired yet then your case might not be one that an employment lawyer can agree to take on a contingent basis. However, most employment lawyers will agree to a fee-based consultation, during which you can explain your situation and the lawyer gives you advice regarding what protections you might have under applicable law and what steps you need to take to best protect your interests. While legal fees vary greatly based on geography, you should expect to pay between $100-$500 for an hour of the attorney's time. In the grand scheme of things, this is a good value for the information you will receive.

   • How do I find a good lawyer to consult? -- An excellent question. To be honest, it isn't always easy. There are a lot of lawyers out there but few of them specialize in representing employees in employment-related disputes. Here are some sources and articles to help get you started:

     • How to Hire An Employment Lawyer

     • Texas Employment Lawyers Directory (for Texas residents)

     • National Employment Lawyers Directory (for those outside of Texas)

IHOPe You Brought Your Checkbook!

Two IHOP Restaurants to Pay Nearly $1 Million to Settle Sexual Harassment Suit

Teens Among Victims of Misconduct Including Simulated Sex Acts, Sexual Contact, Unwanted Sexual Comments and Physical Threats, Federal Agency Charged

Two southern Illinois International House of Pancakes (IHOP) franchises will pay $975,000 and furnish other relief to settle a systemic sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC had charged that numerous employees at the locally owned Glen Carbon and Alton, Ill., restaurants were routinely sexually harassed by coworkers and managers, including offensive sexual comments, groping, physical threats, and, in one instance, attempted forced oral sex with a management employee.

The EEOC filed its lawsuit in September 2017 (Equal Employment Opportunity Commis­sion et al. v. 2098 Restaurant Group, LLC et al., Civil Action No. 3:17-cv-1002-DRH) in U.S. District Court for the Southern District of Illinois, seeking relief for more than 11 female employ­ees at the Glen Carbon IHOP and one male employee at the Alton IHOP. Some of the female employees were teenagers at the time of the alleged harassment.

The consent decree settling the suit, entered today by Judge David R. Herndon, requires the defendants to pay compensatory damages to 16 harassment victims. The decree also requires the com­panies to implement, distribute and enforce tougher policies prohibiting sexual harassment and establish procedures for promptly investigating and addressing sexual harassment complaints. The decree also requires the owner to be directly involved in preventing and correcting sexual harassment. The four-year decree further requires the defendants to provide sexual harassment training to employees, create and maintain documents regarding sexual harassment complaints, and post notices at their facilities. It also enables the EEOC to monitor the restaurants to determine whether harassment recurs, and, if so, that it is dealt with effectively. All the measures are intended to prevent further incidents of harassment.

The EEOC's Youth@Work website (at https://www.eeoc.gov/youth/ ) presents information for teens and other young workers about employment discrimination, including curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities.

Do I Need to Hire a Lawyer to Review My Severance Agreement?

In a word, Yes.

As an employment lawyer, I spend a considerable amount of time reviewing severance agreements for clients.  Severance agreements are often filled with complicated legal issues and can be challenging to understand and properly navigate. Besides the dollar value of the package, there are several types of clauses in most severance agreements that employees should be aware of.  While situations differ as to how negotiable a severance agreement is in once case versus another, it is always advisable to have a board certified employment lawyer review the document with you so that, at the the very least, you understand all of the ramifications of the agreement you are signing.

Here are a few of the clauses that clients often need assistance with:

1. The Severance Payment: If an employee is already entitled to receive a severance payment, whether pursuant to an employment contract or company policy, there is no need to sign a severance agreement to get that money. An attorney can help ensure that if the employee does sign an agreement, it provides more than any severance payment the worker was already entitled to. An experienced employment lawyer may also have a sense of whether the amount being offered is within the usual range for the relevant industry.

2. Money the Employee is Already Owed: An employer who owes an employee money –  for unused vacation time or unreimbursed expenses, etc – must pay it regardless of whether a severance agreement is signed. 

3. Benefits: A severance agreement should explain what benefits the employee will receive upon separating from the employer and deal with continuation of health care benefits (if applicable) or with COBRA notice requirements.

4. Release of Claims: Employers usually want a full legal release from the employee as a part of any severance agreement.  Several issues can drop up here, including the effect of the release on benefit plans and/or on existing claims (workers compensation, disability claim, etc).  This release will usually cover all claims regardless of whether the employee even knows the potential claim exists.  So it is important to speak with an attorney so that you know if you actually have any claims and whether they should be released in return for the severance being offered by the employer.

5. Non-Disparagement and References: Severance agreements often forbid employees from speaking badly about their employer even after they leave the company.  Sometimes the agreement contains language dealing with how the company will respond to future inquires regarding the employee from prospective employers.  

6. Restrictive Covenants & Noncompete Agreements: Many employees are bound by non-compete and non-solicit agreements created in employment contracts or other documents they have signed. These agreements prohibit the employee from competing with the employer in certain areas for a specific amount of time, and from hiring other workers away from the employer. Where these restrictions already exist, a lawyer should ensure that the severance agreement does not expand them. Where the employee has not already entered agreements on these topics, the attorney can work to limit the time and scope of restrictions the separation agreement imposes.

These are just a few of the myriad issues that might need to be addressed as a part of a severance agreement review.  If you are offered a severance agreement, it is important to hire an attorney to review it BEFORE you sign. But not just any attorney -- just as you would probably not hire a real estate lawyer to defend you in a criminal proceeding, you should make sure to seek out an employment law specialist when hiring an attorney to review a separation agreement. An experienced employment attorney can help protect employees, including executives and professionals, from the risk of waiving rights unnecessarily or leaving severance money on the table.

California Considering Ban on Employer Forced Arbitration

Last year, a bipartisan coalition in the United States Senate sponsored legislation to ban the use of mandatory arbitration agreements with regard to claims of sexual harassment and sex discrimination. The federal bill is still pending. 

Now, a similar bill has been filed in the California legislature. If it passes, the California bill would prohibit employers from requiring mandatory arbitration agreements as a condition of employment. And unlike the federal bill mentioned above, the California bill would prohibit arbitration clauses as a condition of employment as to all types of employment claims—not just sexual harassment and sex discrimination claims.

If passed, the California law would be an important start to a movement to get rid of employer-based, forced arbitration. Statistics show that arbitration is unfair to employees and is used by some employers to effectively opt out of the judicial system into a rigged, pseudo-court where wrongdoing can be effectively covered up by companies. 

And claims that arbitrating claims is more cost-effective than traditional adjudication in court are are not supported by the available statistical data. Many employment corporate defense lawyers point out that research shows arbitration is neither faster nor less expensive than litigation. 

There has long been data showing that a solid majority of Americans oppose forced arbitration in the employment context.  If this bill passes and becomes law in California, perhaps it will be the beginning of a nation-wide movement to allow employees back into the courtroom. 

Read More: National Law Review

The Rise of Digital Wage Theft

The days of punching a manual time-clock when you arrive at work are all but over. Digital time tracking systems now use things like facial recognition to monitor when a worker arrives and has finished for the day. However, the software that’s replaced the 19th century time-clock technology is helping some employers steal workers’ hourly pay.

This so-called wage theft is a problem for many healthcare workers, drivers, and food-service and factory employees, according to a study by Elizabeth Tippett, associate professor at the University of Oregon School of Law, published in the American Business Law Journal. An earlier report from the Economic Policy Institute found that wage theft in the US may account for more than $15 billion each year.

How digital wage theft works

Tippett’s study of 330 cases litigated in state and federal courts found three main types of digital wage theft:

• Rounding, which happens when the software is set to alter an employee’s starting and finishing times to pre-defined increments

• Automatic break deductions, which deduct preset time increments (for lunch or other breaks) from pay, regardless of whether the break was taken

• Time shaving, which takes place when managers alter time records to pare down the number of hours worked

Read more about this study in this article by John Detrixhe. 

Supreme Court Denies Overtime Pay to Service Advisors at Auto Shops & Dealerships

This week in Encino Motorcars, LLC v. Navarro, the Supreme Court limited overtime pay for service advisors at car dealerships nationwide, ruling that those employees are primarily salespeople who sell brake jobs, oil changes and other service work. Encino Motorcars' current and former service advisors sought backpay under the Fair Labor Standards Act (FLSA) overtime-pay requirement, 29 U.S.C. 213(b)(10)(A). The requirement exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.”

The Supreme Court, in an 5-4 opinion authored by Justice Thomas, reinstated the dismissal of the suit. According to the Court, service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles." The ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles,” Service advisors are also “primarily engaged in . . . servicing automobiles.” “Servicing” can mean either “the action of maintaining or repairing” or “[t]he action of providing a service.” Service advisors satisfy both definitions. They meet customers; listen to their concerns; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as services are performed; and explain the work when customers return for their vehicles. While service advisors do not spend most of their time physically repairing automobiles, neither do partsmen, who are “primarily engaged in . . . servicing automobiles.”

The Court rejected giving Chevron deference to the federal agency and rejected the interpretation of the Department of Labor and the Ninth Circuit Court of Appeals, who had both relied on matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”. The but the word “or” is “almost always disjunctive.” Using “or” to join “selling” and “servicing” suggests that the exemption covers a salesman primarily engaged in either activity. The Court held that the FLSA gives no textual indication that its exemptions should be construed narrowly, thus ignoring the long-standing precedent that remedial statutes should be interpreted in order to provide broad protections to the individuals they seek to protect. 

Writing in dissent, Justice Ruth Bader Ginsburg said the service advisors at Encino Motorcars "work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. Their weekly minimum is 55 hours." Federal law calls for a time-and-a-half pay after 40 hours in a week, she noted. "Because service advisers neither sell nor repair automobiles, they should remain outside the exemption and within the act's coverage," she said. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan agreed.

This is but one of many examples to come that will demonstrate the importance of elections on the Court. The election of Trump coupled with the Senate's highly questionable antics used to nab a seat for Justice Gorsuch has led to the elimination of overtime protections for thousands of workers across the country. Many will never see Justice Gorsuch as a legitimate member of the Court. However, his votes (expected to be 100% anti-worker) on the Court will be powerful all the same.

Read the Opinion

New Expert Report Offers Policy Recommendations for Non-compete Agreements

As this blog has discussed before, non-compete agreements are a real problem. A new report from the Brookings Institution’s Hamilton Project seeks does a deep dive on this nationwide problem, compiling the most comprehensive recent studies on non-compete agreements. The report’s author, Matt Marx, has several key policy recommendations for lawmakers who want to promote economic growth rather than stifle it:

• Employers should inform employees if they will be required to sign a non-compete agreement before they accept the job. Employers routinely hide the fact that employees are required to agree to a non-compete until after an employee has accepted a position and presumably turned down other offers. (This takes away employees' negotiating power and hurts the economy.)

• If existing employees are asked to sign new non-compete agreement, employers should be required to compensate them. (In Texas, employers often require long-time employees to sign new non-compete agreements with the promise of nothing more than continued at-will employment.)

• Allow judges to rewrite overreaching non-compete agreements so that they are in-line with state law. (In Texas, judges already have this power. The problem is that in order to get the issue to a judge, a lawsuit needs to be filed by either the employer or employee, taking time and costing legal fees.)

• Give attorneys general the power to go after firms that require workers to sign predatory non-competes. (This could be helpful in some states. Unfortunately in Texas our current Attorney General would have no interest in helping Texas workers in this way.)

• Bolster non-disclosure agreements so that they make a better substitute for non-competes. (This sounds good but I'm not sure how much stronger they could be without creating a real imbalance of power in the workplace.)

You can read the entire report here.

Non-Compete agreements are not evil per se. In fact in some cases they make sense. But companies have gone way beyond using non-competes to protect legitimate trade secrets and now routinely abuse them in attempt to gain a competitive advantage over other businesses by keeping employees out of the labor pool. 

2nd Circuit Rules Title VII Protects Against Employment Discrimination Based on Sexual Orientation

In an en banc decision, The US Court of Appeals for the 2nd Circuit in New York ruled on Monday that Title VII of the Civil Rights Act of 1964, a federal law that bans employment discrimination because of sex, also protects claims of discrimination based on sexual orientation.

"Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted," a 10-3 opinion issued by the 2nd US Circuit Court of Appeals stated.

The court, based in New York, becomes the second appeals court to rule that the civil rights law covers discrimination based on sexual orientation. Last year, the 7th Circuit Court of Appeals issued a similar ruling. The ruling means that employees in those two circuits can use existing civil rights law to sue for discrimination based on sexual orientation. 

Eventually, this issue will likely work its way up to the U.S. Supreme Court.  

You can read the 2nd Circuit’s opinion here. 

Buc-ee’s Loses Texas Retention Agreement Case

A year after a trial court ordered that a former employee pay Buc-ee’s close to $100,000 in alleged damages and attorneys fees for breaching an employee “Retention Agreement”, a Texas court of appeals reversed that decision, ordering that Buc-ee’s take nothing on its claims against its former employee and also ordered that it pay for her legal fees as well. (Read my previous coverage of this case here.)

The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement".  

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit.

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00. The trial court found against Rieves and awarded the company nearly $100,000.00 in damages and attorney’s fees.

Last week the court of appeals took that verdict back, ordering that Buc-ee’s take nothing on its claims against Rieves and that it pay for her legal fees as well. The court reasoned that the requirement that Rieves pay back such a large sum of money should she leave the company acted as a restraint of free trade and violated Texas’ employment-at-will doctrine. As a result, it could only be valid if it met the requirements of an actual noncompete agreement, which in Texas is controlled by statute. Because this agreement did not meet those requirements, it was not enforceable. 

Download a copy of the opinion.

 Buc-ee’s will now have to decide whether to appeal the matter further.

Click here to learn more about employment agreement cases from San Antonio employment attorney Chris McKinney.

$1.1 Million Verdict to Woman in Gender Identity Case

The Case

Rachel Tudor, a transgender professor whose tenure and promotion was denied at Southeastern Oklahoma State University, was awarded $1.1 million by a federal jury on Monday in a landmark Title VII case.

Tudor was hired by the university in 2004 as a tenure-track assistant professor in the English department and presented as male at the time. She began transitioning in 2007, becoming the university's first openly transgender professor.

According to the lawsuit, after notifying the university that she would be presenting as a woman at work for the 2007-2008 academic year, Tudor received a phone call from an unnamed human resources staffer who told her the school's vice president for academic affairs, Douglas McMillan, had inquired about firing her because her identity as a transgender woman offended his religious beliefs.

The lawsuit also states the director of the university's counseling center, Jane McMillan, Douglas McMillan's sister, told Tudor to take safety precautions, because some people were openly hostile to transgender people. She also reiterated to Tudor that her brother considered transgender people to be a "grave offense to his [religious] sensibilities."

In October 2009, Tudor applied for tenure and a promotion to an associate professor position. Her application was denied, while the application of a similarly qualified male coworker was approved, the lawsuit claims. After Tudor asked for an explanation as to why her application was rejected, according to the suit, Douglas McMillan and another dean refused to provide her with one. Tudor then filed a federal discrimination complaint in 2010.

In March 2015, the Justice Department, then under the Obama administration, sued the university, with former Attorney General Eric Holder declaring that federal prohibitions against sex discrimination include protections based on gender identity.

On Monday, an eight-person jury voted in favor of Tudor on three counts: that she was "denied tenure in 2009-10 because of her gender," that she was denied "the opportunity to apply for tenure in the 2010-11 cycle ... because of her gender" and that the university retaliated against her after she complained about workplace discrimination. The jury then awarded her $1.165 million in damages.

Why Is This Case Important

This case is important because it is one of the first times that a federal court has explicitly found that a plaintiff whose gender identity is transgender is a protected class under federal anti-discrimination laws. In the past, many courts have held that gender identities are not protected in and of themselves. Plaintiffs could only seek protection of federal anti-discrimination laws by arguing they were covered under traditional sexual discrimination statutes because they were mistreated due to application of a sexual stereotype. This argument has worked with varying degrees of success across the country but it is more convoluted and difficult to apply than it should be. 

The issue will certainly have to be decided by the US Supreme Court eventually but this court decision is a good start.

Person of the Year 2017: #MeToo

Time Person of the Year 2017: The Silence Breakers
Discussions of sexual harassment in polite company tend to rely on euphemisms: harassment becomes "inappropriate behavior," assault becomes "misconduct," rape becomes "abuse." We're accustomed to hearing those softened words, which downplay the pain of the experience. 

It wasn't so long ago that the boss chasing his secretary around the desk was a comic trope, a staple from vaudeville to prime-time sitcoms. There wasn't even a name for sexual harassment until just over 40 years ago; the term was coined in 1975 by a group of women at Cornell University after an employee there, Carmita Wood, filed for unemployment benefits after she had resigned because a supervisor touched her. The university denied her claim, arguing that she left the job for "personal reasons."

In 1980 the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing civil rights laws in the workplace, issued guidelines declaring sexual harassment a violation of Title VII of the Civil Rights Act. It was a victory, but with caveats: even after sexual harassment became explicitly illegal, it remained difficult to lodge a complaint that stuck—in part because acts of harassment are often difficult to define. What separates an illegal act of sexual harassment from a merely annoying interaction between a boss and his subordinate? When does a boss stop just being a jerk and become a criminal? Because the Civil Rights Act offered no solid legal definition, interpretation has evolved slowly, shaped by judges and the EEOC over the past 37 years.

And then...2017 and #MeToo happened. Read Time Magazine's Cover Article Here

#MeToo - Reporting Sexual Harassment In Today's Workplace

While headlines focus on famous men who lead prominent organizations, the majority of sexual harassment happens in ordinary office buildings by ordinary managers or workers who are insecure about their status in life, feel a need to rattle or dominate others to make themselves feel better, or see their colleague as a potential sexual gratifier. They don't love their victims. In fact, they may want to hurt them through embarrassment, discomfort and humiliation.

Most harassers are men, although women also have been reported. The targets are usually women. However, men filed approximately 17 percent of the sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) in 2016. 

Most employees try to ignore the behavior, at least at first, waiting to see if it will go away. Some clearly ask the harasser to stop. Others try to play along or laugh it off, unwittingly sending mixed signals of encouragement to the harasser.

The correct response, of course, is to report harassing behavior to a supervisor or human resources. A responsible employer will listen to the description of the events and then speak to the instigator. However, reporting sexual harassment is a difficult thing to do. Employees who are being harassed at work often feel alone and powerless. Will the report do any good? Will HR stand up for me? Will I be retaliated against? Will I lose my job?  

We have put together an article discussing some important tips to consider when you need to oppose or report sexual harassment in the workplace. If you or someone you know is facing this issue, the information in this article could help.

Weinstein Case Highlights Difficulty Employees Face When Reporting Workplace Harassment Claims

NPR had an excellent story yesterday about the problems that employees face in the workplace when they report sexual harassment:

"Former Hollywood mogul Harvey Weinstein's ouster from the Academy of Motion Pictures Arts and Sciences following numerous allegations of sexual misconduct have prompted others on social media to open up about workplace harassment complaints that have gone unheeded.

Most employers in most industries have written policies on and procedures for reporting incidents of sexual harassment, and human resources officials are required to investigate those claims.

And while recent decades have seen a cultural shift and more education to help minimize sexual harassment, HR consultant Sharon Sellers says there is still a big gap between what should happen, and what actually does. One concern is that many people don't feel safe reporting claims.

"The employer should take every complaint seriously, and this is one area I see where it falls down," Sellers says."

Most employees don't want a lawsuit; they just want to be allowed to do their job without being sexually harassed. Companies do their employees (and their bottom line) a disservice by not building a strong HR department that has the resources and independence within the company to investigate harassment claims and, when necessary, speak truth to power within the company.

Read the rest of NPR's article here.

"Service Fees" Can Confuse Matters for Tipped Employees

Tipped Employees

While most restaurants leave it up to their customers to decide how much to tip their servers, and increasing trend among some restaurants is to include a mandatory gratuity or “service fee” on their bills. Sometimes this is done only for groups of six or more patrons. Other times it is included as an extra charge when customers purchase a banquet package or other private dining option.

Mandatory gratuities or services fees are legal only under certain circumstances and only if handled properly by the employer. In some states, such fees are only legal if the money is used for the sole purpose of paying the server. Under the FLSA, service charges must be counted as income on the books of the restaurant, and then they may be used to pay servers or for other purposes. In no event, however, may servers be paid less than the minimum wage.

Other common issues tipped restaurant workers face include:

• Requiring servers and bartenders to contribute a percentage of tips to a tip pool, but using the tips to pay employees who are not customarily tipped, such as custodial, management, or kitchen workers.

• Denying overtime pay to employees who worked at more than one restaurant owned or controlled by the same company, even when their combined hours totaled more than 40 hours in one workweek.

• Having employees work off-the-clock, earning only tips for their labor. Even if tipped employees receive most of their pay through tipping, the employer still must pay them at least $2.13/hour in cash wages on top of whatever tips they may earn.

If you have a question about how a tipped employee should be paid or if you think your employer is violating the FLSA, visit my main website to learn more.

Halliburton pays nearly $18.3 million in overtime owed to more than 1,000 employees nationwide after US Labor Department investigation

Employee Rights Under the FLSA

In one of the largest recoveries of overtime wages in recent years for the U.S. Department of Labor, oil and gas service provider, Halliburton, has agreed to pay $18,293,557 to 1,016 employees nationwide. The department's Wage and Hour Division investigated Halliburton as part of an ongoing, multi-year compliance initiative in the oil and gas industry in the Southwest and Northeast.

Investigators found Halliburton incorrectly categorized employees in 28 job positions as exempt from overtime. The company did not pay overtime to these salaried employees — working as field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists — when they worked more than 40 hours in a workweek, in violation of the Fair Labor Standards Act. The company also failed to keep accurate records of hours worked by these employees.

Simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime. The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.

The FLSA requires that covered, non-exempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must maintain accurate time and payroll records.

Supreme Court Rules 6-2 Against Tyson -- Workers Win Millions in Back Pay

Supreme Court Rules For Workers in Pay Dispute

In a victory for American workers, the Supreme Court last week upheld a $5.8 million judgment against Tyson Foods in a pay dispute with more than 3,000 workers at a pork-processing plant in Iowa. You can read the opinion in Tyson Foods v. Bouaphakeo here.

The justices voted 6-2 on to reject new limits Tyson asked them to impose on the ability of workers to band together to challenge pay and workplace issues. The case revolved around the question of whether the workers could bring a class action case. Tyson argued that since each employee spent a different amount of time putting an gear and removing it, they shouldn't be able to sue as a group using "representative evidence" to prove up their case. The court rejected that argument.

“In many cases,” according to the Court majority opinion, “a representative sample is ‘the only practicable means to collect and present relevant data'” to prove that the company being sued was legally at fault.   The opinion went on to provide some guidance to when such evidence would be allowed in such cases.

In this case, the Court was more content to allow such evidence because Tyson Foods had not obeyed its legal duty to keep records on how much each worker had worked as overtime.  Without such records, the employees had to marshal other evidence, and the sample was the best proof available to them.

The case is notable because it represents at least a small opening in the legal wall against group actions that the Supreme Court has been steadily building over the last several years.

Read more:

• The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification

• Tyson Foods workers win $3 million in back pay

• Award Against Tyson Foods in Iowa Pay Dispute Upheld - ScotusBlog

Uber Drivers File FLSA Class Action in New York

FLSA Wage Action Against Uber

On June 2nd, the New York Taxi Workers Alliance filed a class action complaint on behalf roughly 5,000 New York City Uber drivers against Uber Technologies and its related entities.  The complaint alleges that Uber’s drivers are misclassified as independent contractors and that Uber’s compensation scheme falls far below statutory minimum wage and overtime requirements.

According to the complaint, Uber exercises sufficient control over their “independent contractors,” to qualify them as employees:

From fares and fees, to what to wear and what route to take, in addition to subjecting its employees to constant monitoring by GPS, Uber directs and sets the terms and conditions of their Drivers’ work. Although Uber’s rules are often described as “suggestions,” Drivers understand clearly that failure to follow these guidelines results in temporary or permanent termination of their employment with Uber. After working for Uber continuously for years, laboring for twelve-hour-plus shifts, for six or seven days a week, these workers simply cannot be considered independent contractors performing a “gig.”

The complaint contains claims for minimum wages and overtime under the FLSA, recovery of equipment costs, unlawful deductions, breach of contract, and promissory estoppel.

You can read a copy of the filed Complaint here.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

• McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.

• Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.

• The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.

• McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.

• An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.

• At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”

• McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

• McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.

• McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

If you want to read more, start here.