Student Athletes' Wage Suit Against NCAA and Universities Is Dismissed
A federal judge in Indiana dismissed the remaining claims of a lawsuit filed by student athletes, alleging that they were "employees" and therefore entitled to the minimum wage under the Fair Labor Standards Act. The suit was initially filed in 2014 by Samantha Sackos, a soccer player for the University of Houston. Ms. Sackos alleged that she and other student athletes were "temporary employees" and therefore were entitled to minimum wage. Ms. Sackos eventually dropped out of the case but was replaced by plaintiffs Lauren Anderson, Gillian Berger, and Taylor Hennig, all track and field athletes at the University of Pennsylvania. Because all of the three plaintiffs were current or former Penn students, the other schools moved for dismissal, arguing that the plaintiffs had no standing to sue them. U.S. District Court Judge William T. Lawrence agreed, and dismissed the claims without prejudice. Theoretically Plaintiffs can try again with amended claims, or by adding plaintiffs from other schools. That may not be worth the trouble, though, because the judge also dismissed the claims against Penn on their merits. Specifically, the judge found that Penn was not the employer of the plaintiffs. The claims against Penn were dismissed with prejudice.
Source: Courtesy of Client Bulletin #572 of Constangy, Brooks, Smith & Prophete, LLP
Combating Gender Discrimination Is A Priority Issue For The EEOC
by Nancy Castor Sprattlin, Esq.
While Title VII of the Civil Rights Act of 1964 does not explicitly include gender identity in its list of protected bases, the Equal Employment Opportunity Commission ("EEOC"), consistent with case law from the Supreme Court and other courts, has interpreted the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of gender identity. Back in April 2012, the EEOC confirmed its intention to protect transgender employees under Title VII of the Civil Rights Act. In fact, just recently the EEOC has made it clear that combating gender identity discrimination is a "priority issue" by joining a lawsuit initiated by a transgender male (transitioning from female). In the lawsuit, the plaintiff employee claims he was required by his Employer to dress and act as a woman in the workplace so as not to confuse customers. The employee has sued for gender identity discrimination under Title VII. Employers are required by law to reasonably accommodate transgender employees, including as to their dress and appearance, as well as bathroom usage, among other issues.
Employers, Be Vigilant About FCRA Compliance
By Nancy Castor Sprattlin, Esq.
Chipotle was recently sued for violations of the Fair Credit Reporting Act ("FCRA"). The lawsuit seeks recovery under both FCRA and California law. This is one of a number of lawsuits that have been filed recently against employers, serving as a reminder that employers must be vigilant about FCRA compliance when conducting background checks on which employment decisions will be based. The named plaintiff in the lawsuit against Chipotle alleges that Chipotle's FCRA disclosure is buried in its employment application and surrounded with distracting language. However, FCRA requires that such disclosures are made in a "standalone" document, i.e. consisting solely of the disclosure. The plaintiff also claims that Chipotle did not provide her the required summary of her rights under FCRA and failed to provide a box to check to indicate that she wanted a copy of the background check report. So employers, make sure background checks are performed properly, the devil is in the technicalities!
Recent NLRB Decision Could Have Detrimental Impact On Franchisor and Franchisee Arrangements
By Nancy Castor Sprattlin, Esq.
The recent Browning-Ferris Industries decision issued on August 27, 2015 by the National Labor Relations Board (NLRB) is a critically important decision because it has overturned an over three decades long "joint employer" standard. This case involves Browning-Ferris Industries (BFI)’s use of an outside staffing firm. The union sought to represent the workers employed by the staffing firm and argued that they should be deemed employees of BFI and thus able to be part of the union.
According to the old standard, a company utilizing the services of employees of another company would not be considered a joint-employer unless it had “direct control” over the employees’ working conditions, such as the direct ability to hire and fire employees. Based on this new decision and standard, two or more employers are considered joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.” It is somewhat unclear now what are considered the “essential terms and conditions of employment”. As the Court’s decision states, the essential terms and conditions of employment certainly include, “hiring, firing, discipline, supervision, and direction,” but the NLRB states that it intends to be inclusive and that this list is “non-exhaustive.” Hence, many employers, particularly within the franchise and outside staffing contexts, are very nervous by the NLRB’s so-called “non-exhaustive list”. Indeed, if a company is deemed a joint employer, it could then be subject to collective bargaining and a large variety of employment-related claims formally reserved for the direct employer.
While this case doesn’t involve franchise arrangements, it is clear that the decision could have a detrimental impact on such arrangements in the franchise industry. Franchisors may start withdrawing valuable support and resources fearing that these resources may be used as evidence of control. On the one hand, franchisees are independent businesses and do not want the franchisor telling them who to fire or how to run their business on a day-to-day basis. On the other hand, franchisees generally expect resources from franchisors and enter into these franchise contracts to benefit from the brand name, experience and support. For a franchisor to maintain ownership and control of its trademark, it must protect the brand quality. If it loses this control, it can lose rights to its trademark. So trademark law and employment law appear to pull the franchise industry in opposite directions. Franchisors fear that certain support and controls create a risk that may make the franchisor a joint employer. T here are sure to be many cases in the future litigating this issue in many contexts including the franchise context.
References from Ross Eisenbrey's BLOG at http://www.epi.org/blog/nlrb-decision-in-browning-ferris-restores-employer-accountability-for-wages-and-working-conditions/
Top 6 Strategies To Minimize The Risks of Workplace Violence
by Nancy Castor Sprattlin
Employers have legal and ethical obligations to promote a work environment free from threats and violence. Some situations are beyond employers' control and are simply not preventable. However many situations can be prevented by doing some or all of the following:
• Adopting a workplace violence policy and prevention program AND communicating the policy/program to your employees.
• Providing regular training in preventive measures for all new/current employees, supervisors, and managers.
• Fostering a climate of trust and respect among workers and between employees and management.
• Supporting, not punishing, victims of workplace harassment and providing assistance programs.
• When necessary, seeking the assistance of outside resources, including threat-assessment psychologists, psychiatrists and other mental health professionals.
• Doing pre-employment screening. While pre-employment screening is an obvious means of preventing workplace violence, it must, however, be consistent with privacy protections and anti-discrimination laws. There are many other creative means that may be helpful! Please contact us today to discuss further.