Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Employment law autopsy: “Old fart” gets fired

Posted in Discrimination, Employment at Will

Here’s a lesson: Don’t call your employee an “old fart,” especially if you think you may need to fire him someday.

Rembrandt.The_Anatomy_Lesson.Wikipedia (public domain)

“Class, where did this employer (allegedly) go wrong?”

And don’t call his co-workers “old farts” right before you fire the co-workers.

And don’t give your “old fart,” who has only a first-level warning on his record, three or four “progressive” warnings on the day that you fire him.

And don’t try to invoke “employment at will!” to justify any of the above.

Every now and then a case comes along that illustrates so well all the things that employers should not do*. The case of Goudeau v. National Oilwell Varco is just such a case. So let’s do a “post-mortem” on the employer’s motion for summary judgment, which was originally granted but was reversed last week by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit**, meaning that the plaintiff’s age discrimination claims will go to a jury.

*According to the court’s decision, the employer vigorously disputes the plaintiff’s allegations. But at the summary judgment stage, the court had to assume that the plaintiff’s version of any disputed facts was the correct one.

**The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi, and Texas. This case originated in Texas.

Maurice Goudeau had worked for NOV’s predecessor since 1993, and was promoted at some point to maintenance supervisor. In 2008, NOV acquired his company, and he continued to do just fine. But in September 2010, when he was in his late 50s, he began reporting to a new supervisor.

(Dum-da-dum-dum!)

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Document review attorneys may not be exempt from OT, court says

Posted in Class actions, Lawyers!, Wage-Hour

Uh-oh. Lawyers who do document review may not be exempt from the overtime requirements of the Fair Labor Standards Act, according to a court decision issued yesterday.

Large law firms and legal services vendors often hire stables of contract lawyers to do document review in big cases. Sometimes, the lawyers who do the review are actually reading and analyzing the documents in light of the case and (1) determining whether they’re responsive to discovery requests or subject to objections, (2) using them to investigate the facts, or (3) using them to develop litigation strategy. Ideally, all three.

We aren’t talking about those lawyers.

According to David Lola, a temporary contract lawyer who worked on a 15-month document review project for Skadden Arps through a legal staffing agency, he was given a list of pre-determined search terms and went through each document looking for those terms. He also categorized the documents and did some redactions. He alleged that a machine (or, anyway, a reasonably intelligent non-lawyer) could have done what he did. He was paid $25 an hour, but no overtime even though he sometimes worked 55 hours a week.

Sad guy at computer.flickrCC.John

“Three years of law school and $150,000 in student loans — for this?”

Mr. Lola brought a putative collective action against Skadden and the staffing agency (I’ll refer to both the defendants as “Skadden” from now on) for unpaid overtime under the FLSA, and Skadden moved to dismiss his lawsuit, contending that Mr. Lola was exempt from overtime because he was “the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and [was] actually engaged in the practice thereof.”* Last year, a federal court in New York agreed with Skadden, and dismissed his lawsuit.

*From 29 C.F.R. Section 541.304(a)(1). 

Mr. Lola appealed, and yesterday a panel of the U.S. Court of Appeals for the Second Circuit, which hears appeals from Connecticut, New York, and Vermont, reversed, finding that his lawsuit stated a valid legal claim and could proceed.

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EEOC, Abercrombie settle hijab lawsuit

Posted in Discrimination, Settlements

We went to the U.S. Supreme Court, and all I got was this lousy $45K?

(Better than a lousy t-shirt, I guess.)

Law360 reports that, now that the U.S. Supreme Court has ruled in favor of the Equal Employment Opportunity Commission in the high-profile religious discrimination and accommodation case, Abercrombie has agreed to pay Samantha Elauf $25,670.53 in damages and $18,983.03 in court costs, thus ending the saga. (Paid subscription required to read full article.)

I’ve blogged about the case here, here, and here.

 

You’ve been warned – those independent contractors are probably employees

Posted in Independent Contractor, Wage-Hour

Are you still using “independent contractors”? Get out of here – you know they’re really employees!

Donald Trump.flickrCC.GageSkidmore

Donald Trump might be an independent contractor. Everybody else is an employee. DISCLAIMER: NOT A POLITICAL ENDORSEMENT.

On Wednesday, I did a very short “breaking news” post on the new Interpretation issued by Wage and Hour Administrator David Weil on when workers are “employees” versus “independent contractors” under the Fair Labor Standards Act.

Here’s more.

As employers probably expected, the U.S. Department of Labor takes the position that most workers are “employees” and not “independent contractors.” Employers often have a hard time with that distinction.

[M]ost workers are employees under the FLSA . . . the scope of the employment relationship is very broad.” — WH Administrator’s Interpretation.

According to the DOL, the key question is whether “the worker is economically dependent on the employer” – in which case the worker is an employee – “or in business for him or herself” – in which case, the worker may be a true independent contractor.

Here are four key points for employers to keep in mind:

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Women aren’t lead counsel as often as men – it’s gotta be bias!

Posted in Discrimination, Lawyers!

“I like it when the judge calls me ‘honey’ – that means he’s going to grant my motion.” — Quote from real female attorney I know, circa 1990.

Does the court system discriminate against women lawyers? Could be!!!!

Anyway, that’s what a couple of women litigators assume, based on their study showing that men were lead counsel in a sampling of federal cases in northern Illinois from 2013 more often than women were.

Barbie Suit.flickrCC.RomitaGirl67

“She can argue a case in court! Isn’t that cute?”

According to the study, based on information gained through the PACER federal court electronic filing system, 68 percent of all lawyers appearing in the 2013 civil cases were men, and 32 percent were women. But 76 percent of lead counsel were men, while only 24 percent were women. Men were lead counsel in 78 percent of labor-related lawsuits, and women were leads in only 22 percent.

I get that, I believe that, and it doesn’t surprise me that fewer women than men are lead counsel.

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Employees’ “low-tech” sloppiness causes high-tech problems

Posted in eLaw

A good reminder for employers about maintaining cybersecurity comes from a recent Washington Post article (“This is why the government keeps getting hacked” by Jeffrey Neal) about the breach at the Office of Personnel Management. Sometimes the simplest things can cause huge problems . . .

The lock on the door is irrelevant if users of a system fail to close the door. For example, agencies are mandating use of smart cards and a Personnel Identification Number (PIN). But what happens when someone cannot remember the PIN? Too often the PIN is written on a Post-it note or piece of tape on the card. All it takes is one card with a PIN written on the back to given an intruder access to a system. The problem is even worse for agencies who still have user IDs and passwords. How many people have passwords “hidden” under a desk pad, keyboard or in a drawer where, of course, no one will ever find them? And how many people are disciplined for that offense? I’ve never seen an employee disciplined for what is, in effect, blowing a hole in the agency’s security efforts. We have to start holding everyone accountable for behavior that weakens security.

Does this sound like your workplace? I suspect it does.

BREAKING: DOL issues memo on independent contractors

Posted in Independent Contractor, Wage-Hour

Law360 reported this morning that the U.S. Department of Labor issued a memorandum addressing the “independent contractor versus employee” issue, taking the position that most workers are actually employees within the meaning of the Fair Labor Standards Act.

We’ll have more on this after we’ve had an opportunity to review it in more depth. Meanwhile, here is the Memorandum.

This week in employment law, with a lick and a promise

Posted in Americans with Disabilities Act, Corporate Culture, Discrimination, Family and Medical Leave Act, Retaliation, Same-sex marriage, Social media, Telecommuting
Donuts.flickrCC.MichelleG

“Lick these, and you’ll regret it!”

It’s been a hectic week for me (I have a trial coming up), and so here are some links to employment law blog posts and workplace news items that I hope will entertain and edify.

5 Things Your Manager Doesn’t Want You to Know. By the great Evil HR Lady, Suzanne Lucas. (Just to whet your appetite, the first is “I can’t fire you.”)

Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? Dan Schwartz posted this a couple of weeks ago, but it is more timely than ever, now that South Carolina’s flag is coming down. (Today. At 10 a.m.)

This is the worst team-building exercise ever. Yes, ever. From the inimitable Eric Meyer. There’s no “I” in team, but there are two “Is” in “ISIS.” So they should have known it was going to be a fail.

Because of an upcoming trial, my blogging will be sparse for the next little while.

Don’t forget leaves of absence as ADA accommodation. Maybe not as funny as Eric, but this is great advice from Jon Hyman that employers often overlook. There’s more to life than the Family and Medical Leave Act.

Religion v. Law. Heather Bussing discusses the intersection of religion and the law in light of the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. I think this is going to become a very, very big deal in the coming years.

Fingers Crossed.flickrCC.Carmella Fernando

HA!!! Caught on camera!

How technology could kill the art of lying. By Andrea Peterson of The Washington Post. Think about that the next time you want to lick a donut. Employers ought to be careful, though, when they think they have caught an employee red-handed through technology. I posted a few months ago about an FMLA retaliation case brought by a former paralegal of Dow Chemical who was terminated shortly after returning to work from a medical leave. (Scroll down to “FMLA retaliation claims will go to trial, even though plaintiff was fired for falsification of time records.”) Kimberly Hartman was terminated (allegedly) for falsifying her time, but she claimed that she was actually working on her computer at home and thus accurately posting her time. The employer countered that the work she claimed to be doing should have taken only a few minutes and that her VPN logs showed that she was almost never in the system. Ms. Hartman’s husband emailed me not long ago and alerted me that his wife had won more than $330,000 after a trial on her claims. I asked him about the VPN evidence, and he said that they were able to establish that she was doing most of the work outside “the system” and was doing other legitimate work as well. So don’t over-rely on technology. It never hurts to do an old-fashioned, “analog” investigation before you take action.

Does Jeb Bush think American workers are lazy? Hill says yes. Jeb says no. (I’m with Jeb – DISCLAIMER: NOT A POLITICAL ENDORSEMENT – he probably could have stated it better, but I think it’s clear that he was advocating increased productivity, which would lead to job creation, which would allow people to work more hours. In a good way.)

Image Credits: From flickr, Creative Commons license: Donuts by Michelle G; fingers crossed by Carmella Fernando.