Employment Law and Other Stuff

Budget Brakes Overtime Case Certified

2009-07-09T13:34:00.000-07:00

We have a case against Budget Brakes, a chain of automobile service shops in Middle Tennessee. Judge Campbell of the United States District Court recently granted our Motion for Conditional Certification on this case, and notices will be sent to prospective class members shortly.

This case highlights the rights of employees to be paid for every minute they work. We allege that the company has a computer system that automatically deducts employees' lunch breaks. Unfortunately, employees are frequently unable to take all (and sometimes any) of their lunch break. This results in a significant amount of unpaid wages over an extended period of time. Stay tuned, and I'll keep everyone updated on this case.

Starbucks Overtime Lawsuit

2009-05-08T03:55:00.001-07:00

I've had lots of comments from people who read my post about the Family Dollar case. It was unusual because most FLSA cases involving the executive exemption are filed by assistant managers. The Family Dollar case involved store managers. This may be a trend, with Starbucks being the latest employer to run afoul wage and hour laws. The following is part of the article I came across:

Boca Raton, Fl: You can bet your double latte that some people are wondering why they took that management job at Starbucks. The high-end java shop has been slapped with yet another overtime lawsuit under the Fair Labor Standards Act—this time it’s the managers that are complaining that they were, as attorney Adam Chotiner describes it, “little more than glorified baristas." Chotiner believes that Starbucks has wrongly classified store managers as beingexempt from overtime. “We don’t believe they fit the exemption,” says Chotiner. “Their primary duty is to make coffee, sell coffee, serve coffee and clean the bathrooms just like the hourly employees they supposedly supervise. They should receive overtime pay for any hours they worked over 40 hours but they don’t.” Although Starbucks store managers get a little prestige from their title, Chotiner argues that’s about all they get that is different from the baristas. It may be that it simply doesn’t pay to be the coffee boss. “Certainly that is one of things we are going to explore. We think if you take their salary and divide it by the number of hours they really work,” Chotiner says, “you will find that on an hourly basis they make very similar to what the hourly employees make.”

You can read the full story at www.lawyersandsettlements.com/articles/12217/Adam-Chotiner-lawyer-interview.html

U.S. Supreme Court Decides Case From Tennessee

2009-02-02T04:56:00.001-08:00

On January 26, 2009, the United States Supreme Court handed down its opinion in the case of Crawford v. Metropolitan Government of Nashville and Davidson County. The Court held that Title VII’s antiretaliation provision protects an employee who speaks out about discrimination in answering questions during an employer’s internal investigation. The opinion, authored by Justice Souter, said that such speech is protected under the statute's “opposition” clause and that Title VII does not call for "a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.”

Eleventh Circuit Affirms Major FLSA Verdict for Employees

2009-01-25T07:25:00.000-08:00

The Eleventh Circuit recently upheld a major verdict for managers of Family Dollars Stores. The employees claimed that they worked 60 to 70 hours per week without receiving overtime pay. The Defendnat claimed the executive exemption. The Eleventh Circuit affirmed a trial verdict for the Plaintiffs.

The case involved an opt-in class of 1,424 store managers in a collective action under the Fair Labor Standards Act. The Eleventh Circuit wrote:

"Plaintiffs presented evidence that store managers rarely exercised discretion because either the operations manuals or the district managers’ directives controlled virtually every aspect of a store’s day-today operations. The manuals and other corporate directives micro-managed the days and hours of store operations, the number of key sets for each store, who may possess the key sets, entire store layouts, the selection, presentation, and pricing of merchandise, promotions, payroll budgets, and staffing levels. The manuals even instruct store managers on the smallest details, such as how to arrange clip boards, what items go in each of the four drawers of the single file cabinet, and how to remove spots and chewing gum from store mats. The few decisions not mandated by the manuals and corporate headquarters are vested in the district manager. These decisions include the power to change store hours, close for bad weather, approve changes to store layouts, establish all employees’ initial rates of pay, approve all pay raises, set payroll budgets, control the total labor hours allocated to each store, approve the hiring and firing of assistant managers, and even approve the use of appliances such as coffee pots. Even when a store manager exercised discretion in scheduling employees for the week, she did so within the strict constraints of mandatory store hours, a limited payroll budget, a prohibition on overtime work by hourly employees, and a staff scheduler. This evidence supports a reasonable jury finding that Family Dollar’s store managers had few, and infrequently exercised, discretionary powers. "

One of the most damaging pieces of evidence was the testimony of Dollar Stores' Senior Vice President of Store Operations. He testified -- or attempted to testify -- about how the company reached its decision to classify all its store managers as exempt:

Q. Now, my question is, did you make that decision?
A. No, sir.
Q. Did your boss, Mr. Barkus, make that decision?
A. To my knowledge, it’s been in place -- it was in place when I camehere 29 years ago. So --
Q. Okay. So, do you know anybody that will own up to that decision;say, “that was my decision”?
A. I do not.
Q. Mr. Levine, has he ever told you that’s his decision?
A. No, sir.
Q. Can you give us any clue? And the reason I’m asking you this, Iasked you this in the deposition and we’ve been asking a lot of peoplein depositions: Who made this decision, do you know?
A. I do not.

New Civil Rights Act

2009-01-16T07:29:00.001-08:00

The Obama administration, along with a new Congress, will almost certainly consider new employee rights legislation. The 1991 Civil Rights Act changed the landscape of employment law by granting the right to a jury and additional monetary damages to victims of employment discrimination. A new "civil rights act" is being explored. Among those things being discussed:

-either eliminating or raising the existing caps on Title VII and ADA awards

- allowing compensatory and punitive damages under the Fair Labor Standards Act

- condition states' receipt of federal funds on the states waiving Eleventh Amendment immunity under, among others, the ADEA and FLSA.

New Administration

2009-01-05T05:54:00.000-08:00

With each new administration, we can expect changes in federal labor and employment laws. In February, I will attend the Federal Labor Standards Legislative Committee meeting of the American Bar Assocation, where high ranking officials of Department of Labor will discuss the future of wage and hour laws. Stay tuned. In the meantime, here is a statement from the committee that might be of interest:

With Barack Obama's inauguration next month, our Committee anticipates that change will be coming in the area of employment and labor law. Minimum wage, overtime pay, hours of work, enforcement, exempt/non-exempt regulatory changes, Family Medical Leave Act regulations and coverage expansion, and Ledbetter, all issues within this Committee's jurisdiction, are likely to receive significant attention in the next four years. The Wage and Hour Division will certainly continue to issue opinion letters, with different emphases and, likely, different outcomes in some of the more controversial areas. In the context of the explosion in wage/hour class action litigation across the country, the changes at the Labor Department and in statutory/regulatory law could have far reaching impacts for both employers and employees.

These issues will be explored in depth at the Committee's midwinter meeting in Los Cabos, Mexico, February 18-20, 2009. Although the new Secretary of Labor has yet to be named, the Committee will have knowledgeable representatives from the Department of Labor and other agencies who can speak on issues within our Committee's jurisdiction including issues that the Obama Administration will take on in the Wage and Hour context.

Amendments to the ADA Become Law

2008-09-25T08:51:00.000-07:00

The long awaited amendments to the Americans with Disabilities Act became law today. President Bush signed the bill this morning. Thanks and congratuations should be extended to both the business community and the employee rights community for making the compromises that were necessary to bring about this important legislation. The significant changes to the ADA include:

(1) explicitly removing the Supreme Court's requirement in Sutton that mitigating measures be considered when evaluating whether an individual has a disability within the meaning of the ADA;

(2) including language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] were too restrictive;

(3) defining "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems (the provision contains a non-exhaustive list);

(4) eliminating the requirement that an individual asserting a "regarded as" claim show that s/he has an impairment that substantially limits a major life activity;

(5) clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and

(6) directing the courts to interpret the ADA as a remedial statute, i.e., liberally; and
conforming the definition of "disability" under the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA.

Working Through Meal Breaks

2008-08-25T04:52:00.000-07:00

Do you work through your meal breaks?

I recently settled a case under the Fair Labor Standards Act that dealt with a situation that appears far too often.

My client had a 30 minute lunch deducted from her pay everyday, even though she was too busy to take her lunch break. When this happened, her employer was cheating her out of her pay. This is one of the most common employment law violations in the workplace today. It is illegal, and it is wrong.

I have heard from a number of lawyers who read this blog. If this is happening to any of your clients, please call me. I would be happy to talk through your client's legal options.

New 6th Circuit Case on Mixed Motive

2008-07-11T12:50:00.000-07:00

On July 3, the Sixth Circuit issued an opinion that addressed the application of the U.S. Supreme Court's Desert Palace decision for the first time. Judge Clay wrote the majority opinion. Judge Gilman filed an opinion which concurred in part and dissented in part.

The decision was very favorable to employees. It acknowledged that most termination decisions do not involve a single motivation, and set out the analysis for cases where an employee is terminated for various reasons.

In my judgment, the decision makes employment discrimination cases much easier for employees. I've already talked with several lawyers and clients about the case. Give me a call if you have any questions.

ADA Amendments Act of 2008

2008-06-27T13:37:00.001-07:00

In the nerdy world of employment lawyers, this was a big week. The U.S. House of Representatives passed a landmark bill to overhaul the Americans with Disabilities Act. The bill passed the House by a surprising vote of 402 to 17 on Wednesday. It now goes to the Senate, where it faces greater hurdles.

For employment lawyers, this is a big deal. Origionally known as the ADA Restoration Act, the bill legislatively overturns four U.S. Supreme Court cases. Perhaps most significantly, the bill overturns the Sutton decision, which held that employees do not have disabilities if they could correct their impairments with "mitigating measures," such as medication or medical devises. It remains to be seen what the Senate will do with this bill, though it arrives in the Senate with a good deal of momentum.

"Me Too" Evidence

2008-06-03T18:57:00.000-07:00

In 2001, I wrote an article titled "Previous Acts of Discrimination: Probative or Prejudicial?" It was published in Vol 25 of the American Journal of Trial Advocacy. I've never told the story of what prompted me to write the article. In light of the Supreme Court's recent case of Sprint/United Management v. Mendelsohn, I feel vindicated and will come clean.

My current law partner, who was my boss at the time, was trying a retaliatory discharge case. I was second chair in the trial. Our primary evidence of retaliation was the testimony of another employee who was fired under the same circumstances. The judge excluded our evidence because the two situations were so similar, he found they would be unduly prejudicial. Effectively, he ruled our evidence was too relevant.

This drove me nuts, so I wrote an article that was published a year later. I argued that "other acts of discrimination" should be admissible under Rule 404(b) if the same decision maker was involved and there was reasonable temporal proximity.

The United States Supreme Court recently handed down a decision in a similar case. In the opinion of the Court, Justice Thomas held that such evidence could be admissible. In fact, the Court went even further than I did in my article. While the Court avoided ultimately deciding the issue, Justice Thomas' majority opinion went so far as to say that "me too" evidence could be admissible under certain circumstances even if DIFFERENT decision makers were involved.

We'll have to wait and see how the law evolves after this decision, but employee rights lawyers and their clients are certainly better off now.

This is the link to David Stout's article in the New York Times following the Court's decision. www.nytimes.com/2008/02/26/washington/26cnd-scotus.html?hp

Ceremony for Judge Todd

2008-05-17T19:21:00.001-07:00

United States District Court Judge James D. Todd of Jackson celebrated his "semi-retirement" at a ceremony in the federal courthouse in Jackson on Friday. Judge Todd will soon become a senior judge.

This means that I will rarely have any future cases in Judge Todd's court. This will be a new experience for me, as Judge Todd has presided over the vast majority of my cases since my practice became exclusivley devoted to employment law in January of 2001.

I wanted to take a few lines to pay my respects to a career well spent. Though I have never had the chance to get to know Judge Todd on a deep personal level, he has issued dozens of opinions that have affected the lives of my clients significantly. Judge Todd was appointed to the federal bench by my favorite former president. His opinions have always been thoughtful and well reasoned. I haven't won every dispute that I have brought to his court, but I have always been treated with respect and fairness.

Judge Daniel Breen will replace Judge Todd in Jackson. He is a good man and a fine jurist. I look forward to practicing before him, and I wish Judge Todd God's blessings as he has more time to spend with his family and enjoy the fruits of his labor.

Law and Religion

2008-05-14T11:36:00.000-07:00

Lawyers are required to insert themselves into some fascinating situations. Perhaps this is most clear when the worlds of law and religion meet. One of the most factually interesting cases I have handled involved two devout Christians (my clients) who interpret scripture very literally. Their former employer purchased a new payroll system that required the employees to “clock in” and “clock out” by placing their hand in a machine. My clients requested a different method of tracking their hours because they believed that such a machine was a forerunner to the “Mark of the Beast” in the Book of Revelation. They believe that, near the end of the earth, people will be required to take the Mark of the Beast on their forehead or right hand to engage in commerce. They believe that this payroll machine was a step in that direction , and they asked for another way to clock in. Instead of accommodating their belief, the company terminated my clients’ employment.

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the sincerely held religious beliefs of employees unless it poses an undue hardship. I always enjoy telling people about my “Mark of the Beast Case.” When you’re an employment lawyer, you just never know what type of case will walk through the door next.