Employment law pop quiz #16 – Federal overtime

Does federal law require overtime payments for more than 8 hours in one day?

No.

Federal law – the Fair Labor Standards Act – requires overtime payments (1.5 times the regular rate) for hours that are more than 40 in one week.

Federal law does NOT require overtime payments for more than 8 hours in one day.

Many state statutes do require overtime payments calculated on a daily basis, so you need to check you local laws.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Get all the Pop Quizzes (16 so far) in one PDF: email me: RossRunkel@gmail.com .

Employment law pop quiz #15 – Temporary back pain

Is this an ADA disability? – Temporary back pain, with chiropractor's limitations on lifting and bending.

[Morgan v. Allison Crane (3rd Cir 09/04/2024) [PDF] prompted me to ask this.]

First, don't be fooled by "temporary." Years ago the US Supreme Court held that an impairment must be “permanent or long term” in order to qualify. But Congress changed that in the ADA Amendments Act (ADAA) in 2008. "Temporary" is no longer a show-stopper.

Congress mandated that the “definition of disability . . . shall be construed in favor of broad coverage of individuals” and “to the maximum extent permitted.” In response, the EEOC explained that even an impairment that is expected to last less than six months can constitute an actual disability “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”

Second, consider what major life activities are involved. In our example, we have lifting and bending. An EEOC regulation specifically lists lifting and bending as major life activities.

Third, ponder "substantially limits." EEOC regulations say an impairment "need not prevent, or significantly or severely restrict” to be substantially limiting. They also say “substantially limits” should be “construed broadly in favor of expansive coverage.”

Fourth, the employee in the case cited above testified that “it hurt to sit, hurt to walk,” and it hurt to “turn[] left or right.” That was enough to prevent the employer from getting a summary judgment, but the ultimate winner will be decided by a jury.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #14 – NLRB & Amazon

Has the NLRB ruled that Amazon is a joint employer of subcontracted delivery drivers?

No, even though recent click-bait headlines are saying this.

The NLRB itself has not made such a ruling.

An NLRB Regional Director in California has made a "merit determination" which is an early step in a process that could put the issue in front of the NLRB itself.

Amazon does not directly employ drivers who deliver packages. Amazon has contracts with companies it calls Delivery Service Partners – DSPs. These DSPs employ the drivers. There are over 3,000 DSPs employing some 275,000 drivers.

The Teamsters Union was able to unionize employees at one of the DSPs in California – Battle Tested Strategies. Teamsters wanted Amazon to negotiate a collective bargaining agreement, but Amazon refused. So Teamsters filed unfair labor practice charges.

Teamsters is arguing that Amazon is a joint employer of the Battle Tested Strategies employees. This is because Amazon exercises significant control over the drivers, such determining their routes, setting delivery targets, and monitoring their performance.

There are many steps yet to be taken – the General Counsel filing a complaint, a hearing before an administrative law judge, a hearing before the NLRB, an NLRB decision, and possible review by a US Court of Appeals.

Unless there is a change in the membership of the NLRB, I expect the Board will side with the Teamsters.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #13 – FLSA & jurisdiction

Can I opt in to a FLSA collective action without proving the court has personal jurisdiction over MY claim?

"No," according to a recent 7th Circuit decision. A court overseeing a collective action must secure personal jurisdiction over each plaintiff's claim, whether representative or opt-in, individually. Vanegas v. Signet Builders (7th Cir 08/16/2024) [PDF].

A Wisconsin resident brought a Fair Labor Standards Act collective action in federal court in Wisconsin against a Texas-based employer. He had hoped that other employees from various states outside of Wisconsin would opt in, to establish a nationwide collective action.

This will now be practically impossible. Each opt-in plaintiff has to prove that the court has personal jurisdiction over his or her claim.

The 7th Circuit relied on Bristol-Myers Squibb v. Superior Ct, 582 US 255 (2017). The only difference was that Bristol-Myers involved state court jurisdiction. But a federal district court in Wisconsin has no more extra-territorial jurisdiction than a Wisconsin state court would have.

FLSA collective actions are different from class-actions. In a class-action, the class itself is essentially the plaintiff. But FLSA collective action is no more than a "consolidation of individual cases, brought by individual plaintiffs."

One judge dissented, arguing that this outcome is not mandated by Supreme Court precedent or personal jurisdiction law.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #12

Can the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) apply to pre-enactment events?

"Yes," sometimes.

The EFAA renders arbitration agreements invalid and unenforceable, at the election of the complainant, in sexual assault and sexual harassment cases.

But it applies only to claims that "accrue" after the effective date – March 3, 2022. So the key is to identify when a cause of action accrued.

Recent case in point: A woman claimed she was subjected to a sexually hostile work environment both before and after enactment of the EFAA. The 2nd Circuit held that the EFAA applied, so she does not have to arbitrate.

The court held that her claims accrued before the effective date, and then re-accrued with each successive act that was part of the single continuing course of conduct underlying the hostile work environment claims. This is because a hostile work environment claim is subject to the continuing violation doctrine because, unlike discrete acts, their very nature involves repeated conduct.

Bonus: The court also allowed her retaliation claims to stay in court because such claims fall within the EFAA's definition of a "sexual harassment dispute."

Olivieri v. Stifel, Nicolaus & Company (2nd Cir 08/12/2024) [PDF].

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

An offensive Facebook post & the 1st amendment

The 1st amendment is still alive, even for an employee who posted a "shocking" and "highly offensive" message on his Facebook page.

The 6th Circuit recently held that a public library violated the 1st amendment when it fired a security guard for posting a meme that said “ALL LIVES SPLATTER” — obviously a crude word play on the message “All Lives Matter.” The meme ended with “NOBODY CARES ABOUT YOUR PROTEST.”

Noble v. Cincinnati & Hamilton County Public Library (6th Cir 08/09/2024) [PDF].

The security guard's Facebook page has less than 100 friends. He took down the meme less than 24 hours after it went up. But some of the friends worked at the library, and they complained.

The court applied a familiar two-step analysis:

First, he spoke as a private citizen, not pursuant to his official duties, on a matter of public concern.

Second, the employee's speech interest outweighs the library’s efficiency interest. There was no evidence that his speech significantly hindered Library operations. Nobody from the public complained about it. And some of the library's employees engaged in the same debate, although on the opposite side.

I love this line from the court: "It was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians."

There was a dissenting opinion that would hold that the balance tipped in favor of the library because the library could reasonably predict a potential disruption given this highly charged political environment and the immediate spreading of the post that had already occurred.

Employment law pop quiz #11

Can a co-worker's single racial slur result in employer liability?

"Yes," according to yesterday's California Supreme Court decision in Bailey v. San Francisco District Attorney's Office (California 07/29/2024) [PDF].

I am unaware of any other court decision, and the California court did not cite one, that holds that a single use of the N-word by a co-worker can be severe enough to create a hostile environment for which the employer can be responsible.

An African-American employee claimed that a co-worker – on a single occasion – called her the N-word.

The court rejected a lower court's conclusion that a one-time slur from a co-worker – rather than a supervisor – cannot be actionable under California law.

To determine whether this incident was severe enough as to alter the conditions of employment and create a hostile work environment, a court must take into account the totality of the circumstance. Only one circumstance – a “significant factor” in assessing the severity of harassing conduct – is the status of the speaker.

This employee alleged that she and the co-worker shared an office and job duties. She also said that the co-worker was friends with an HR person and that the co-worker's actions against two other African-American women caused them to be reassigned or to separate from the employer.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

California drops prejudice requirement for arbitration waivers

California no longer requires a party seeking to avoid arbitration to prove they were prejudiced.

The California Supreme Court on Thursday abrogated a rule that had been followed for decades. Quach v. California Commerce Club (California 07/25/2024) [PDF]

This case was brought under the California Arbitration Act, so that statute now lines up with how the Federal Arbitration Act treats waivers.

In 2022 the US Supreme Court decided Morgan v. Sundance, Inc., which announced that prejudice is not part of waiver analysis under the Federal Arbitration Act. The California court adopted the reasoning in the Morgan case. The so-called "policy favoring arbitration” is about putting arbitration agreements on equal footing with other contracts, not about favoring arbitration with arbitration-specific preferential rules.

In the Quach case, a former employee sued his former employer, alleging various employment law claims. Then the employer waited for 13 months before moving to compel arbitration.

During those 13 months the employer actively pursued discovery, requested a jury trial, posted jury fees, left the check box for indicating it was “willing to participate” in arbitration blank, and represented that the only motion it intended to file was a “dispositive motion.” This constituted a waiver of the right to arbitrate.

Employment law pop quiz #10

Can I be fired for my Facebook posts?
Most likely, yes.

The legal landscape is littered with appellate court decisions upholding employers' right to fire employees for posting offensive material on Facebook.

First, consider whether a 1st amendment free speech issue is involved. This is easy. The 1st amendment applies only to the government (federal, state, local). So if the employer is a private company, there simply is no 1st amendment protection for the employee.

When the government is the employer, the employee might get some protection if the posting deals with "a matter of public concern." This is something more than a personal "gripe," and is pretty easy for the employee to demonstrate.

Then the court is going to go through what is called the Pickering balancing test, named after the 1968 US Supreme Court case Pickering v. Board of Education. As the Court put it, "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Just this week the 7th Circuit decided Hicks v. Illinois Department of Corrections [PDF], upholding the suspension of a corrections sergeant who posted Islamophobic and offensive material on Facebook. The court had no trouble showing how this was in opposition to the goals of his employer and resulted in an adverse news article.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #9

What's the most frequent charge at the EEOC?

Retaliation.
57% of all EEOC filings.

Disability - 36%
Race - 34%
Sex - 31%
Age 17%
(This adds to more than 100% because one filing can contain multiple items.)

But wait!
This needs to be put into context.
(Nerdy perhaps, yet necessary.)

Retaliation overlaps all the other categories.

Retaliation – all by itself – is not a violation of Title VII.

It must be retaliation for opposing an unlawful act.

And that unlawful act has to be tied to race, sex, age, religion, etc.

Therefore, a retaliation claim always involves race, sex, age, religion, etc.

So when you see or hear "retaliation," just ask "Retaliation because of what?"

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #8

Is an employee's refusal to take DEI training a protected activity?

I think not. A recent 7th Circuit decision explains why. Vavra v. Honeywell (7th Cir 07/10/2024) [PDF].

Honeywell required its employees to complete online unconscious bias training. This was around 20 to 30 minutes long and entailed watching videos of different scenarios with a quiz at the end.

Charles Vavra refused. He never clicked the link to access the training. In spite of many reminders and his superiors urging him to take the training, he maintained his refusal.

Honeywell eventually fired Vavra for refusing to take the training.

Vavra sued under Title VII and the Illinois Human Rights Act claiming that firing him was in retaliation for engaging in protected conduct – opposing an action that violated the law. His point was that the training would vilify white people and treat people differently based on their race.

The court pointed out that in order to state a claim of retaliation Vavra needed to have an objectively reasonable belief that the training violated the law. However – because Vavra never took the training – he had no direct knowledge of its contents. Indeed, his supervisor told him that it was not racist and featured a white victim of unconscious bias.

So, in the end, the 7th Circuit affirmed summary judgment in favor of Honeywell because Vavra lacked an objectively reasonable belief that the training was unlawful. As the court put it, "An employee must have some knowledge of the conduct he is opposing for his belief to be objectively reasonable."

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #7

Is the US Supreme Court pro-employer? Or pro-employee?

 Neither one, in my opinion. The Justices don't wake up in the morning thinking "How can I help employers?" Or "How can I help employees?"

What they do is interpret Congress's statutes the way Congress wrote them.

 Recent examples: 

 > Murray v. UBS Securities (9-0) [PDF] – A Sarbanes-Oxley Act whistleblower must prove that their protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that the employer acted with “retaliatory intent.”

> Muldrow v. City of St. Louis (9-0) [PDF] – An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be "significant" or "serious" or "substantial" or any similar adjective.

> Bissonnette v. LePage Bakeries (9-0) [PDF] – A transportation worker need not work in the transportation industry to be exempt from coverage under Section 1 of the Federal Arbitration Act.

> Smith v. Spizzirri (9-0) [PDF] – Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration; no discretion to dismiss the case.

> Starbucks v. McKinney (9-0) [PDF] – Courts must evaluate the NLRB's requests for injunctions under Section 10(j) of the National Labor Relations Act using the traditional four-factor test for preliminary injunctions, not some other more lenient standard.

> Harrow v. Department of Defense (9-0) [PDF] – The 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is not jurisdictional.

 Your results may vary. If you have any of these issues, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Are college athletes "employees"?

Here's the latest on whether college athletes are "employees."

A federal Circuit Court just weighed in on whether they can establish employee status under the Fair Labor Standards Act (FLSA). Johnson v. NCAA (3rd Cir 07/11/2024) [PDF].

As the court put it, the issue is "whether college athletes, by nature of their so-called amateur status, are precluded from ever bringing an FLSA claim. Our answer to this question is no."

The athletes want to get at least minimum wage for the time they spent representing their schools, so they sued the NCAA and several member schools. The defendants are saying the athletes are amateurs, not employees, so not covered by the FLSA.

The trial court ruled that the athletes are employees.

The 3rd Circuit didn't exactly disagree with that conclusion, but did disagree with the way the trial court reached that conclusion. So the case now goes back to the trial court to do a makeover.

In a 65 page decision the 3rd Circuit said that whether college athletes are employees is based on "an economic realities analysis grounded in common-law agency principles."

The court said, "We therefore hold that college athletes may be employees under the FLSA when they (a) perform services for another party, (b) necessarily and primarily for the other party's benefit, (c) under that party's control or right of control, and (d) in return for express or implied compensation or in-kind benefits." (cleaned up.)

Meanwhile, an NLRB Regional Director determined that the players on a men’s college basketball team at Dartmouth are employees of the college. The Board itself has not ruled on this case.

Employment law pop quiz #6

Is it illegal to bully an employee?
It is not, unless the bullying is because of race, sex, religion, disability, or other statutory protected characteristic.

Let's use sex as an example. If an employer bullies an employee because of his or her sex, then that can violate Title VII (and similar state laws).

The reason is that this is a form of sex discrimination. It is not because the bullying – by itself – is illegal.

For example, let's look at Montgomery v. ExchangeBase (Ohio Ct App 07/03/2024) https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2024/2024-Ohio-2585.pdf

Miranda Montgomery alleged a long list of what she referred to as bullying by the employer's president and others. No doubt this was unpleasant for her. The problem for her was that she was unable to connect the important dots. She couldn't show that this offensive behavior was BECAUSE of her sex. The offensive behavior by itself was not enough.

In spite of what I've said above, it's possible that OSHA could conclude that some forms of bullying create a hazardous work environment.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #5

Do egg retrieval and freezing procedures qualify as a pregnancy-related medical condition or disability?

"No" according to the California Court of Appeal. Paleny v. Fireplace Products (Cal App 06/27/2024) https://www.courts.ca.gov/opinions/documents/C097584.PDF

Erika Paleny was undergoing oocyte (egg) retrieval procedures to both donate and freeze eggs for herself for potential use at some unknown time in the future. She said her supervisor didn't like that, and fired her when she said she would need time off for an appointment related to her procedures. So Paleny sued, claiming violations of California's Fair Employment and Housing Act. She claimed she was harassed and discriminated against (1) due to a disability and (2) due to a medical condition related to pregnancy.

Paleny lost on her disability claim because she was not pregnant, and was not disabled by pregnancy. She clearly was not pregnant. She also was not “disabled by pregnancy” because she was not unable to work or to perform any essential functions of her job.

Paleny was not suffering from a medical condition related to pregnancy. The definition of “related medical condition” does not include medical procedures that may tend toward future pregnancies.

The court didn't let Paleny piggyback onto the federal Pregnancy Discrimination Act (PDA). Although some courts recognize infertility as a condition protected under the PDA, Paleny wasn't being treated for infertility. There was no evidence that Paleny was undergoing the egg retrieval procedure because she was experiencing infertility or some other medical condition that necessitated the procedure in order for her to become pregnant. Her reason for extracting her eggs at that time was for donation and to store some for possible future use because the eggs were at their peak quality.

What Paleny really needed was a more sympathetic supervisor.

P.S. The "donation" paid $8,000.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)