Author: Gilbert McWherter Scott Bobbitt PLC

Categories
Sex Discrimination Title VII

The Employment Non-Discrimination Act (ENDA) Passes the Senate

Today, the United States Senate passed the Employment Non-Discrimination Act (ENDA). This piece of legislation had laid dormant for some time. It passed the United States House of Representatives in 2007, but was never passed by the Senate. Now that the current version of the bill has passed the Senate, it must go for approval in the House.

ENDA prohibits discrimination based on sexual orientation and sexual identity. In other words, it extends the employment discrimination prohibition of Title VII, which prohibits discrimination based on race, sex, religion or national origin, to those workers who are gay, lesbian, or transgender.

The bill passed the Senate rather easily, including receiving a number of Republican votes. Republicans Susan Collins and Mark Kirk were co-sponsors of the legislation. Republicans Lisa Murkowski and Orin Hatch were also early supporters. Senator Hatch’s support is especially noteworthy, as he is generally not viewed as a more progressive member of the Republican Party.  The final vote tally was 64-32, with ten Republicans voting “yes.”

ENDA now goes to the House of Representatives, where it faces a much more uncertain future. Speaker Boehner has indicated that he opposes the bill and likely would not bring it up for a vote. However, the possibility that it could be attached to another piece of legislation still exists.

This is worth keeping our eyes on. ENDA would potentially alter the landscape of employment discrimination law. Now that it has passed the Senate, we must wait on the House. That could be a long wait.

Categories
FMLA

Jenna Bush and the Family Medical Leave Act: The Case for Paid Leave

As we approach the end of 2013, we are finishing an anniversary. 2013 marks the 10th anniversary of the Family Medical Leave Act. It was the very first bill signed into law by President Clinton. The signing occurred at a Rose Garden ceremony on January 20, 1993, the day he took office.

It is amazing how familial attitudes can change in just a couple of generations. The FMLA was an act that had long been desired by progressives and employee rights advocates. It provides for 12 weeks of unpaid leave for serious health conditions, including pregnancy. In other words, it was the first federal pregnancy leave act, though it certainly is more far reaching than that.

Congress had passed the FMLA prior to 1993. However, President H. W. Bush vetoed it. He said it wasn’t fair to large businesses. Remember that the FMLA only covers employers with at least 50 employees within a 75 mile radius of where the employee works. All other employees are just out of luck.

Now fast forward 10 years. President H. W. Bush’s granddaughter, Jenna Bush, is a new mother. She is also a correspondent for the Today Show. Recently she wrote the following on a blog:

Today is my first day back at work …I was extremely lucky to spend four full months on maternity leave. I have learned far too many women don’t have this time, due to loop holes to an outdated federal policy and sheer financial need.

What? It appears that one Bush has come around. Employee rights advocates have said for a long time that large employers, those who are able to do it, should be required to provide paid maternity leave. The FMLA is unpaid. Therefore, even many employees who qualify for its protections cannot financially take advantage of them. Jenna Bush recognizes this. She understands the hardship a working mother meets when faced with a choice of career or family. She understands a mother should not have to choose between the two. She understands that the time has come for the FMLA to be expanded and include paid leave for employees of the largest employers.

When President H. W. Bush vetoed the FMLA, he was on the wrong side of history. Ten years later, his granddaughter has it right. Here’s hoping Congress follows her lead.

Categories
FLSA

Final Thoughts on Boaz: Employee’s Belief is not Determinative

There is another very good nugget in the Boaz case. It is just a single sentence, but it is very important for plaintiff’s lawyers to remember after their client gives his or her deposition. The Sixth Circuit said “an employee’s subjective belief that her position was exempt from the FLSA, however, does not mean the position was exempt as a matter of law.” In other words, if an attorney’s client, who does not have a sophisticated legally trained mind, testifies that she thought she was exempt from the FLSA, this is not a party opponent admission. The question is whether their duties, in light of the evidence, satisfy one of the exemptions. The employee’s belief that they are exempt is not determinative.

This is good language for plaintiff’s counsel to have on hand when their client makes a poorly thought out admission during her deposition because she was not able to match wits with a sophisticated opposing counsel. Remember, “the employee’s subjective belief” is not determinative that she was actually exempt in light of the law.

Categories
News

McWherter Selected for Inclusion in 2014 Edition of The Best Lawyers in America

Attorney Brandon McWherter was selected by his peers to be included in the 2014 edition of The Best Lawyers in America in the practices areas of Insurance Law and Commercial Litigation. Inclusion in Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than five million confidential evaluations by top attorneys.

Categories
News

Three Top Industry Publications to Recognize Winners

Tennessee labor attorney Justin Gilbert was recently named among the 2013 Top Rated Labor & Employment Lawyers in the nation. Honorees will be recognized in upcoming special sections of The American Lawyer, The National Law Journal, and Corporate Counsel magazines.

Only attorneys with AV Preeminent® Rating with Martindale-Hubbell® are named to the Top Rated Lawyers.

Categories
FLSA

Boaz v. FedEx Customer Information Services, Inc., et al. Part 2: Effective Vindication for Rights

In my last blog post, I wrote about the recent Sixth Circuit decision in in Boaz v. FedEx Customer Information Services, Inc., et al. That case stands for the proposition that an employer cannot contractually shorten the statute of limitations for claims under the Fair Labor Standards Act or the Equal Pay Act.

There were, however, a couple of additional nuggets worth noting. In Boaz, FedEx relied on a Sixth Circuit case called Floss v. Ryan’s Family Steak House, 211 F.3d 306 (Sixth Circuit 2000). In that case, the court held that an employee asserting an FLSA claim could waive her right to a judicial forum and instead arbitrate the claim. FedEx argued that such waivers are perfectly acceptable in the context of shortening the statute of limitations. The Sixth Circuit noted that “Floss itself said that an employee can waive his right to a judicial forum only if the alternative forum ‘allow[s] for the effective vindication [of the employee’s] claim.’” The court noted that a contract that shortens the statute of limitations does the exact opposite. In other words, it clearly prevents the vindication of an employee’s statutory rights.

This is important because it shows the Sixth Circuit still recognizes the holding in Floss. In other words, in the context of an arbitration agreement, an employee might still be able to challenge the validity of the arbitration agreement if it effectively prevents the employee from vindicating his or her rights. A great example of this is the financial ability to pay. If an arbitration agreement says that the employee must pay for the arbitration, or pay for a substantial part of the arbitration, an employee might successfully be able to argue that their too darn broke to pay for a $400 an hour arbitrator. This might defeat the arbitration agreement. That’s a good point for employee rights advocates to remember.

Categories
News

Firm Featured in National Magazine

Gilbert Russell McWherter PLC will be featured in the September issue of FORTUNE Magazine, in a section dedicated to the 2013 Top Rated Lawyers. The attorneys recognized as Top Rated Lawyers have been rated AV Preeminent®, a significant accomplishment and a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.

Gilbert Russell McWherter is one of only 10 firms named in Top Rated Lawyers’ Labor & Employment division.

Categories
Age Discrimination (ADEA) FLSA Title VII

Employment Agreements that Limit a Statute of Limitations. Enforceable?

Employers love arbitration agreements. Employers are beginning to love agreements that have provisions that limit an employee’s statute of limitations. The Sixth Circuit just handed down a decision that addressed such an agreement from Federal Express. In that case, Boaz v. FedEx Customer Information Services, Inc., et al., the Plaintiff filed a Fair Labor Standards Act and Equal Pay Act case. Federal Express tried to convince the court to dismiss the FLSA case because it was brought more than six months after the statute of limitations.

The case involved claims under both the FLSA and the Equal Pay Act. Many people associate the Equal Pay Act with discrimination lawsuits. However, for purposes of this case, it is important to remember that the Equal Pay Act was an amendment to the FLSA. The Sixth Circuit framed the issue as follows: “Although Boaz’s claims were timely under the multi-year limitations. Under those Acts, her claims were untimely under the six month limitations in her employment agreement.”

Her employment agreement said “to the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring to that Complaint within the time prescribed by law or six months from the date of the event forming the basis of my lawsuit, whichever expires first.”

Because the lawsuit was filed after the six month limitation, Federal Express thought they had a get-out- of-jail-free card.

Fortunately for the employee, the Sixth Circuit did not agree. The Sixth Circuit said that “the issue is whether Boaz’s employment agreement operates as a waiver of her rights under the FLSA.” They noted that employees may waive their rights under Title VII. However, employees cannot waive their rights under the FLSA. Therefore, they reasoned that the six month limitation period is not valid in an FLSA case. This left the question of whether the Equal Pay Act claim was also barred. While an employee can waive a claim under Title VII, the Sixth Circuit said that the Equal Pay Act is different. The Equal Pay Act was an amendment to the FLSA. Because the statute of limitation cannot be contractually shortened for FLSA claims, it cannot be contractually shortened for Equal Pay Act claims either.

What is the takeaway? Employers can have contracts that shorten the statute of limitations for some claims, such as Title VII. However, an employer cannot have a contract that shortens the statute of limitations for a Fair Labor Standards Act case in the Sixth Circuit. Likewise, because the Equal Pay Act was an amendment to the FLSA, Equal Pay Act claims also cannot be subject to contracts that shorten the statute of limitations. The court does not say so, but presumably the Age Discrimination in Employment Act is similar to the Equal Pay Act. It also is based on the statutory construction of the Fair Labor Standards Act.

There are two other nuggets the Sixth Circuit addressed in the Boaz case. However, you will have to stay tuned for our next blog post to find out about those.

Categories
Sex Discrimination Sexual Harassment Title VII

Vance v. Ball State Part 3: What does it mean to prevent sexual harassment?

Here’s my final installment of my thoughts on the recent Supreme Court case addressing an employer’s liability for supervisor sexual harassment.  In a case of co-worker sexual harassment, the question is largely one of negligence.  The Supreme Court had some comments about establishing an employer’s negligence.  They said:

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ.

Wow!  There’s some good stuff in there for employee rights advocates.  First, “preventative measures” has been thought of as part of the employer’s affirmative defense in a supervisor harassment case.  The Vance Court says that an employer is liable – not only if they are negligent in addressing the harassment – but also if they are negligent in preventing it.  Second, they provide a very useful list of things that an employer should do to prevent harassment:

–          Monitor the workplace for sexual harassment

–          Respond to complaints

–          Provide a system of registering sexual harassment complaints

–          Encourage (rather than discourage) complaints of sexual harassment

The first and third items on this list are noteworthy.  What if a plaintiff shows that an employer did not have a protocol in place to monitor the workplace for sexual harassment?  Is the employer liable?  Must the employer have a formal registry of all sexual harassment complaints it receives?  The Supreme Court suggests that the answer to these questions is . . . yep.

This blurs the line between co-worker harassment and supervisor harassment.  Proving that an employer did not adequately monitor the workplace for sexual harassment might now be enough to prove negligence and lack of preventative measures.  This would allow the plaintiff to prevail regardless of whether the offender is a co-worker or supervisor.  While the Vance opinion is generally thought to limit an employer’s exposure in sexual harassment cases, this language from Vance might do the exact opposite.

Categories
Uncategorized

Julius Chambers

We have lost a giant in our profession.  Our firm joins attorneys across the country in mourning the loss civil rights lawyer Julius Chambers.  Mr. Chambers argued eights cases before the U.S. Supreme Court, graduated first in his class at the University of North Carolina Law School, and founded the first racially integrated firm in North Carolina.  According to the Charlotte Observer, “enemies set his law office on fire, bombed his Charlotte home and his car. They also torched his father’s shop in his hometown of Mount Gilead.”  Still, he remained steadfast, soft spoken, and the consummate professional.  Future generations will continue to benefit from his work.