Category: Uncategorized

FOURTH CIRCUIT RULES THAT THE ABILITY TO INTERACT WITH OTHERS IS A MAJOR LIFE ACTIVITY UNDER THE ADA

In the case of Jacobs v. N.C. Administrative Office of the Courts, No. 13-2212, the Fourth Circuit Court of Appeals held that social anxiety disorder may be a disability under the Americans with Disabilities Act Amendments Act (“ADAAA”). In that case, plaintiff Christina Jacobs worked as a deputy clerk at a courthouse in North Carolina. She was later promoted to position at the front counter that required customer service and public interaction. Jacobs, however, suffered from social anxiety disorder from childhood. After she began her new job, she began to experience extreme stress, nervousness and panic attacks, and became paralyzed when she was asked a question that she did not immediately know the answer to. As a result, Jacobs asked her supervisor for an accommodation, that is, to be assigned a role that would require less direct public interface. Her request for an accommodation was not acted on, and just a few short weeks later, she was terminated. Jacobs filed a lawsuit alleging disability discrimination under the ADAAA. The district court granted summary judgment in favor of the defendant, and Jacobs appealed.

The Fourth Circuit reversed the lower court’s decision and held that the district court ignored facts that could have supported a jury verdict in Jacobs’ favor. Specifically, the Fourth Circuit ruled that an individual’s ability to interact with others is a major life activity and that a jury could conclude that Jacobs was substantially limited in her ability to interact with others, and thus, disabled under the ADAAA.

Prior to the amendment of the Americans with Disabilities Act, federal courts frequently would summarily dismiss claims under the Act because plaintiffs were not sufficiently impaired under the law. However, in response to these dismissals, Congress amended the Americans with Disabilities Act in 2008 and substantially broadened the definition of a disability. Now, most significant diagnosed medical conditions will qualify as disabilities.

U.S. SUPREME COURT REVIVES PREGNANCY DISCRIMINATION LAWSUIT IN UPS DRIVER CASE

The U.S. Supreme Court recently vacated the lower court’s decision that ruled in favor of United States Parcel Service in a pregnancy discrimination case. The plaintiff in this case, Peggy Young, sued UPS alleging that it discriminated against her under the federal Pregnancy Discrimination Act (“PDA”). Young was a driver for UPS. After she became pregnant, she informed the Company that she would not be able to lift packages of a certain weight, upon the direction of her physician. UPS, however, told her that she would not be able to work with a lifting restriction and as a result, she was placed on unpaid leave and lost her medical coverage. Young later filed suit under the PDA and argued that UPS refused to accommodate her pregnancy-related lifting restriction.

Young argued that by not giving her the same accommodations that the Company gave to others who requested light duty, such as those who were disabled under the Americans with Disabilities Act, drivers who lost their driving certifications or those who were injured on the job, UPS violated the PDA by failing to treat pregnant women “the same…as other persons not so affected but similar in their ability or inability to work.” In opposition, UPS argued that since not all employees were guaranteed accommodations under its policy, it was not discriminating specifically against pregnant women.

The U.S. Supreme Court ultimately rejected both lines of argument, but stated that Young may be able to prove that the denial of an accommodation constituted disparate treatment under the McDonnell Douglas framework. The Court held that, “Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers” and sent the case back to the lower court for further proceedings.

The case is Peggy Young v. UPS, Inc., No. 12-1226.

This Firm will continue to monitor the developments in this case.

EEOC SUES WELLSNESS SPA FOR PREGNANCY DISCRIMINATION

The U.S Equal Employment Opportunity Commission, an agency that enforces federal laws prohibiting employment discrimination, sued CFS Health Management, Inc., d/b/a Shefa Wellness Center, for pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit alleging that the Company’s employee, April Raines, was unlawfully terminated after informing her boss that she was pregnant. The lawsuit alleges that Raines was a newly-hired, licensed skin care therapist who was fired just 2 days after announcing her pregnancy. When Raines asked why she was terminated, she was told that she deceived the Company by not disclosing her pregnancy during the interview. The EEOC seeks back pay, compensatory and punitive damages and injunctive relief for Raines.

NYC RESTAURANT ORDERED TO PAY $2.7 MILLION TO 11 WORKERS

Last week, U.S. Magistrate Judge Michael H. Dolinger ordered popular Korean restaurant, Kum Gang San, to pay nearly $2.7 million in back wages and damages to 11 restaurant workers. Kum Gang San is owned by Ji Sung Yoo and is a twenty-four hour restaurant with locations in Manhattan and Queens. The court found that the restaurant exploited immigrant workers for many years and forced them to work long hours without paying them overtime pay or minimum wage and also diverted some of their tip income.

 The workers claim they were also forced to perform work for Yoo outside of the restaurant, such as picking vegetables at a farm and shoveling snow from Yoo’s driveway. The company has been found in violation of wage and hour and child labor laws in the past. In fact, the state ordered the restaurant to pay $1.95 million in damages for wages owed to 66 employees back in 2010, which still remains unpaid.

Unfortunately, wage theft is a frequent occurrence that affects the restaurant industry, particularly restaurants that employ immigrant workers. This case serves as an example of an ethnic restaurant that has been found to exploit immigrant workers.

NLRB ISSUES REPORT ON EMPLOYER HANDBOOKS

Last week, NLRB General Counsel Richard E. Griffith, Jr., issued a thirty-page report regarding the legality of employer handbook policies under Section 7 of the National Labor Relations Act (“NLRA”).   The report contains guidance as to what types of employer policies and rules that the National Labor Relations Board has found to be lawful and which are likely to be found unlawful under the NLRA.

Specifically, the report is divided into two parts. The first part offers a comparison of rules that the NLRB has found to be unlawful with those it has found to be lawful in the context of confidentiality, professionalism, anti-harassment, trademark, photography/recording, and media contact rules. The second part discusses the General Counsel’s recent settlement with Wendy’s International LLC and explains why some policies in the Wendy’s employee handbook were found to be violative of the NLRA.

The General Counsel stated that his hope was that this comprehensive report containing specific examples of lawful and unlawful handbook policies and rules will be beneficial to employers, attorneys and human resource professionals.

VIACOM AGREES TO SETTLE FOR $7.2 MILLION IN INTERNSHIP LAWSUIT

Last week, media giant Viacom, Inc., agreed to pay about $7.2 million to end the class-action lawsuit filed by a former MTV intern, who alleged that the Company failed to pay minimum wage. The deal encompasses interns who worked at the Company’s New York and California offices at certain time periods. The average settlement payment to each claimant will be approximately $505 for each academic semester in which they were an intern at Viacom, with a cap at $1,010.

Although the Company agreed to pay $7.2 million, it still must be approved by the court. As such, U.S. Magistrate Gabriel W. Gorenstein asked for more financial details of the proposed settlement before he could approve. If approved, this will be the highest settlement amount awarded to interns to resolve labor claims.

This Firm will continue to monitor the developments in this case.

THIRD CIRCUIT RULES THAT ARMORED CAR DRIVERS ENTITLED TO OVERTIME PAY UNDER FLSA

In a precedential ruling, the U.S. Court of Appeals for the Third Circuit affirmed the lower court’s ruling that armored vehicle driver, Ashley McMaster, was entitled to overtime pay under the Fair Labor Standards Act (“FLSA”). The Court held that the motor carrier exemption, which exempted certain drivers of commercial vehicles from overtime pay laws, did not apply to truck drivers, such as McMaster, who spent all or part of their time operating vehicles under 10,000 pounds.

The Court reasoned that the Corrections Act of 2008, which revised the FLSA, applied to the instant case. The Corrections Act states that the motor carrier exemption does not apply to drivers, driver’s helpers, mechanics, and loaders who spend all or part of their workweek operating certain vehicles weighing under 10,000 pounds. As such, the Court ruled that since McMaster spent approximately 51 percent of her time driving vehicles more than 10,000 pounds and 49 percent driving vehicles under that weight, she fell within the purview of the Corrections Act and was entitled to overtime pay for work performed in excess of 40 hours per week.

Defendant, Eastern Armored Services, Inc., argued that certain district courts have held that subjecting truck drivers to the Motor Carrier Act when they drive vehicles over 10,000 pounds and also to the FLSA when they drive trucks that weigh less “would require burdensome record-keeping, create confusion and give rise to mistakes and disputes.” However, the Court stated that this policy statement cannot overcome the “express change to the statutory scheme.” The case was remanded back to the district court for assessment of wages owed to McMaster.

This decision is significant as there have been conflicting decisions amongst district courts regarding whether overtime pay is required to be paid to commercial drivers who spend part of their time operating a noncommercial vehicle, instead of a commercial vehicle.

The case is Ashley McMaster v. Eastern Armored Services, Inc.

TGI FRIDAY’S SETTLES WITH 14 PLAINTIFFS IN CLASS ACTION SUIT

Last year, the parent company of popular restaurant, TGI Friday’s, was sued in New York federal court by restaurant workers claiming to have been shorted on wages when performing side work and “off-the-clock” work. Specifically, it was alleged that tipped workers were required to perform work during off-hours without receiving minimum wage and overtime, and management manipulated employee time records to permit “off-the-clock” non-tip producing side work such as cleaning and preparing food. Plaintiffs sought to recover unpaid minimum wages and overtime, misappropriated tips, unlawful deductions and other wages under The Fair Labor Standards Act (“FLSA”) and New York Labor Law.

Earlier this week, TGI Friday’s agreed to settle the claims of 14 members of the FLSA class. U.S. District Court Judge Analisa Torres approved of all settlements, which ranged from $2,500 to $82,000. Several other named plaintiffs and opt-in plaintiffs still remain in the case.

The case is Flood, et al. v. Carlson Restaurants, Inc., No. 14-cv-2740.

PAPA JOHN’S NEW YORK FRANCHISEE ORDERED TO PAY $2 MILLION TO UNDERPAID WORKERS

As we previously reported in October 2014, New York Attorney General Eric T. Schneiderman filed a civil action lawsuit against Papa John’s franchisee and its owner-operator for various labor law violations in New York City.

Last week, New York County Supreme Court Justice Joan M. Kenney ordered the franchisee to pay more than $2 million in back pay, interest and damages for failing to pay hundreds of delivery workers overtime pay and shaving down their hours. The five pizza restaurants subject to the court’s orders are all located within Harlem.   Earlier this year, Attorney General Schneiderman also obtained a judgment against another Papa John’s franchisee and has also reached several out-of-court settlements with other fast-food franchises, including Domino’s Pizza.

DEFENSE TO SEXUAL HARASSMENT SUITS STRENGTHENED BY NEW JERSEY HIGH COURT RULING

Last week, the New Jersey Supreme Court in Aguas v. State of New Jersey, adopted the test set forth in two federal cases, namely, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, when reviewing sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”). Prior to this landmark decision, the New Jersey Supreme Court maintained that an employer is vicariously liable if a supervisor creates a hostile work environment through sexual harassment. Now, under the Ellerth/Faragher analysis, the Court held that an employer may escape liability if it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and if an employee unreasonably failed to take advantage of any preemptive or corrective opportunities provided by the employer, or fails to avoid harm otherwise.

The Court also broadened the definition of a “supervisor” under the LAD. The Court defined supervisors as not only individuals who have the authority to make tangible employment decisions, but also those in charge of the employee’s daily work activities.

This decision will likely result in many employers using its anti-harassment policy as a defense to sexual harassment claims under the LAD. As such, it is important that victims of sexual harassment report their claims of sexual harassment in the workplace and consult an attorney.