Updated: Supreme Court to hear Arguments on Outside Salesperson Exemption

Today, the U.S. Supreme Court will hear oral arguments on whether GlaxoSmithKline PLC's offsite and travelling drug sales representatives are entitled to overtime pay. In the past, these representatives have been deemed "exempt" as outside salespeople and not eligible for overtime. Specifically, the Court is presently considering: More ›

Georgia Court Evaluates Executive Exemption Under FLSA

When is a store manager truly a manager, and not just a lead hourly employee, for purposes of the executive exemption of the Fair Labor Standards Act? Employers recently received some positive guidance from the South Carolina district court in Gooden v. Dolgencorp, Inc., 3:10-cv-1059, Dkt. 60, (U.S.D.C. So. Car. Ap. 3, 2012) and Thomas v. Dolgencorp, Inc., 3:10-cv-1061, Dkt. 59, (U.S.D.C. So. Car. Ap. 3, 2012). More ›

CA Supreme Court Issues Long Awaited Ruling on the Taking of Meal Periods

Today, after over three years, the California Supreme Court issued its ruling in the infamous Brinker v. Superior Court case, which addresses, among other things, an employer's obligation to "provide" employees with meal and rest breaks.

Stay tuned.... our evaluation of this momentous decision will follow.

Ninth Circuit: Employees do not Violate the CFFA when Violating Computer use Restrictions

The Ninth Circuit Court of Appeals recently issued an opinion concerning employee violations of the Computer Fraud and Abuse Act. More ›

Maryland: Employers Cannot Demand Applicants’/Employees’ Social Network Passwords

Maryland is the first state to pass legislation which bans employers from asking for current and prospective employees' passwords to social media sites. The legislation passed the General Assembly and is now waiting to be signed by the Governor. The demand for such legislation is not limited to Maryland. Senators from New York and Connecticut have asked the Department of Justice and the EEOC to investigate this particular practice, which has become more and more common with employers of late. Illinois and California presently have similar legislation pending.

Conducting checks into employees' and prospective employees' backgrounds is very common, yet can be very risky. Before delving into your applicants'/employees' social networking backgrounds, consult with counsel to determine whether your methods are appropriate and compliant with local, state, and federal law. 

Caucasian School Board Employee Successful in Race Discrimination, Constructive Discharge Claims

A Caucasian finance coordinator for a school district was reassigned to a position of food services assistant after the racial majority of the Board changed in an election. The employee then took sick leave, and while on leave, requested that the Board provide her with information concerning her new job duties and requested a new contract. The Board provided neither. After being on leave for roughly ten months, the superintendent notified the employee that he was recommending her termination given that she had exhausted her sick days. The employee then provided a doctor's note indicating her ability to return to work. She was told she would have a contract for the food services assistant position when she returned, but the Board failed to provide the contract or any information concerning the new job role. Within weeks, she resigned her position and filed suit alleging race discrimination, hostile work environment, and constructive discharge pursuant to Title VII. The race discrimination and constructive discharge claims proceeded to jury trial, as did the employee's request for punitive damages. The jury found that the demotion from finance coordinator to food services assistant was an adverse employment action which was based on race, and that she was effectively forced out of her position due to race, and awarded her $70,825. She was also awarded punitive damages against the individual Board members. The Board moved to set aside the jury's verdicts, and the Court agreed, leaving only the $10,000 award of compensatory damages in tact. The employee appealed. The Eighth Circuit Court of Appeals agreed with the employee, in part, in finding that the evidence presented was sufficient to permit a reasonable jury to conclude that the change in position was a demotion with diminution in title and significantly decreased responsibilities, and could be found demeaning and thus support a claim for constructive discharge. The Appellate Court's role was to determine whether there was a complete absence of probative facts to support the jury's verdict, and the Court could not say that there was. The jury's verdict was reinstated, but the issue of punitive damages was remanded back to the trial court so that the jury could be properly instructed regarding the affirmative defense of "ignorance" of the law before determining any award. More ›

Title VII "Ministerial Exception" Does Not Apply to Technology Teacher in Catholic School

A federal district court in Ohio has found that Title VII's "ministerial exception" does not apply to a non-Catholic technology teacher at a Catholic school. The Ohio case, Dias v. Archdiocese of Cincinnati, et al., was one of the first to analyze the ministerial exception following the U.S. Supreme Court's January 2012 ruling that the exception applied to a teacher at a Lutheran school in Hosanna-Tabor Church v. Equal Employment Opportunity Commission. More ›

U.S. Supreme Court and State Legislatures Address Privacy Issues in the Workplace

A loaded question, admittedly, but the answer for the Supreme Court, once again, is no.

In Federal Aviation Administration v. Cooper, No. 10-1024 (March 28, 2012), the Supreme Court had to decide whether individuals may recover actual damages under the Privacy Act for sustaining mental or emotional distress. 5 U.S.C. §552a(g)(4)(A). Writing for the majority in a 5-3 decision, (which did not involve Justice Kagan), Judge Alito dispatched with all suspense by first declaring the holding that the Act does not provide for such remedies. The Privacy Act bears unique qualities. It covers the activities of Executive Branch agencies who hold confidential records. The Act permits an individual to file a civil suit against an agency over "intentional or willful" violations of the Act. 5 U.S.C. §552a(g)(1)(D) & 5 U.S.C. §552a(g)(4)(A). An individual can recover "actual damages" upon proving that an agency has violated the requirements of the Act "in such a way as to have an adverse effect on an individual". Id. More ›

Supervisor’s Negative Comments Regarding Green Card Process did not Establish Animus Based on National Origin

The U.S. Court of Appeals for the Eighth Circuit has reaffirmed that an employee may not use a supervisor's negative comments regarding immigration status as evidence of national origin discrimination. In the case, Guimaraes v. SuperValu, Inc., a Brazilian supermarket employee working in the U.S. on an H-1B non-immigrant worker visa alleged that her supervisor had facilitated her termination because of her nationality. The employer, who had sponsored the employee's pending petition for legal permanent residency (i.e., her "Green Card"), argued that the employee was not terminated for any discriminatory reason, but rather for poor work performance. In response, the employee offered just one piece of evidence: her supervisor's statement that she wanted to have the Brazilian employee fired "and stop [her] Green Card process."    More ›

Female Manager may Proceed with pay Disparity-Gender Discrimination Claim

The concept of equal pay for equal work seems simple to understand and apply. If Jan and Joe have similar education, skills, and experience, and perform similar work, it is reasonable to assume that their pay is also the same. Unfortunately, this is not always the case, even though the Equal Pay Act has been on the books for nearly 50 years. The Seventh Circuit recently dealt with this issue in King v. Acosta Sales & Marketing, Inc.. (11-3617, Mar. 13, 2012). Plaintiff, a sales manager, performed the same duties and responsibilities as her male peers and was highly successful—in fact, more successful than many of them, yet, her salary, both when she started and when she ended her job, was substantially lower than that of her male co-workers. The numbers were shocking disproportional, with the highest paid male sales managers often earning two to three times more than she made. More ›