Author: Gilbert McWherter Scott Bobbitt PLC

Categories
Overtime/Wage & Hour

Just Because Your Boss Calls You a “Manager” Doesn’t Mean You Aren’t Entitled to Overtime

Many employers think they can avoid paying overtime just by saying that the employee is “salaried.”  They find out the hard way this isn’t true.  This often comes up when an employer calls an employee a “supervisor” or a “manager,” but that person doesn’t really meet the definition of “manager.” 

Our firm recently settled a case on behalf of a store manager who was paid a salary and worked 50 or more hours per week.  He was called a “manager,” but had very little actual  authority.  He cleaned the store, stocked shelves, and did the same work that other employees did.  There was a dispute over whether or not he could hire or fire employees.  The federal judge refused to throw out the case, finding that a jury could conclude that his duties really were not those of a manager.  The case settled shortly after the judge’s ruling.

In order to be a true “manager,” and thus not be entitled to overtime, the employer must prove:

  • The employee’s salary was at least $455 per week;
  • The employee’s primary duty must be management;
  • The employee must customarily and regularly direct the work of two or more full time employees; and
  • The employee  must have the authority to hire or fire, or the employee’s suggestions regarding hiring, firing, advancement, promotion, or change of employee status must be given particular weight.

Notice that the employer has to prove these four points, and he has to prove ALL of the four points.  In other words, a lot of folks are getting paid as managers who should be paid overtime.

That may be happening to the assistant managers at T.J. Maxx.  A federal judge in New York has just certified a collective action (similar to a class action) on behalf of assistant managers at the retail giant.  If you are being paid as a manager, but you don’t really perform management duties, you may be owed a significant amount of overtime.

Categories
Sexual Harassment Title VII

Supreme Court Hears Argument in “Supervisor” Harassment Case

On Monday, the U.S. Supreme Court heard oral arguments in a sexual harassment case, Vance v. Ball State University, that will decide who is a “supervisor” for purposes of sexual harassment law.  A day later, my good friend and Nashville lawyer J.K. Sims (who represents employers in sexual harassment cases) was sworn into the bar of the U.S. Supreme Court.  Two ground breaking events in one week.  Washington will never be the same.

Anyway, back to the sexual harassment case. As I mentioned in a previous post,  sexual harassment law is very different depending on whether the harasser is a “supervisor” or “co-worker.”  You can read more about the importance of this distinction in my other post.

One of the primary issues is whether a person must have the authority to hire and fire in order to be a “supervisor.”  The Seventh Circuit said, “yes.” Interestingly, even the lawyer for the defendant seemed to concede that this would be too restrictive of a definition.  Justice Roberts suggested that he might favor a definition of “supervisor” that was more narrow than either lawyer was advocating.  He acknowledged that a requirement that a supervisor be able to hire and fire might lead to some “harsh” results, but he suggested that such a bright line rule might nevertheless bring some certainty to the law.

Justice Kagan, who was previously dean of Harvard Law School, pointed out that professors do not have the authority to hire and fire their assistants.  Therefore, such a bright line rule would lead to a situation where a professor could make life a “living hell” for his assistant, yet not be a “supervisor” for purposes of sexual harassment law.  Such a result would seem silly.

It remains to be seen whether this opinion will drastically change sexual harassment law.  Despite the suggestions of Justice Roberts from the bench, my guess is that the Court will adopt some sort of case case-by-case test that will give great deference to the trial courts in making these decisions.

Categories
ADA & ADAA Age Discrimination (ADEA) Retaliation Sex Discrimination Title VII Whistleblower Law

What if an employer says he didn’t know about about the protected activity?

When I was a child, I loved the show “Hogan’s Heroes.”  For those of you who were too young to recall the show, it was about some American POWs in a prison camp in Germany.  Remember, it was a comedy.  These POWs were no more imprisoned than you or I.  They had radios, tunnels, and ran missions from their “prison camp.”

How did they do this?  They had a buffoon of a prison guard named Sergeant Schultz. He surely knew of the comedy that was going on behind the walls of the prison.  Whenever he was asked, however, he would respond with one of the classic lines in TV history:  “I hear nothing; I see nothing; I know nothing.”

Employers have a habit of taking on the Sergeant Schultz character when they find themselves defending an employment discrimination claim.  “I didn’t know she had a workers compensation claim when I fired her.”  “I didn’t know that he had just reported his supervisor for race discrimination.”  “I didn’t know she had complained of sexual harassment.” In other words, they claim that the decision maker did not know about the “protected activity.”  They take the witness stand and effectively say, “I hear nothing; I see nothing; I know nothing.”

This defense is problematic  because it requires employees to prove  when a decision maker learned of protected activity, even though the employer has every incentive to hide this crucial information.  Fortunately, some courts have realized that if a decision maker will lie about one thing, they will lie about everything.

It’s well-settled law that an employee can prove that the employer acted with an illegal motive if she can show that the “reason” an employer gives for the termination is a big fat lie.  In other words, if an employer claims that he fired a pregnant lady because was late to work, but the employee can prove that she arrived on time, then the jury can “infer” that the real reason was her pregnancy.  This is called a “pretext.”  Again, that’s a fancy legal word for “big fat lie.”

Employees and their attorneys should use pretext evidence where an employer is claiming he does not know of the protected activity.  “Pretext evidence” can also be used to estabish an employer’s knowledge of protected activity.  If an employee can show that an employer is lying about material matters in case, the jury should be able to infer that he knows about the protected activity and is trying to cover up the discrimination.

 Wise judges have reasoned that if the employee can show that the reason given by the employer for her termination is not true, then the jury can conclude both that the true motivation was illegal andthat the employer knew about the protected activity. See e.g. Cunningham v. Black & Decker, No. 05-1297 T-An.  (W.D. Tenn. 2008); (holding that the jury could conclude that an alleged decision maker knew of the protected activity where his credibility has been impeached on other matters);  see also Allen v. Chicago Transit, 317 F.3d 699‑700 (7th Cir. 2003)(When a witness is impeached on material matters,  his credibility becomes an issue for the jury.  It is well-settled that summary judgment is not appropriate on employment discrimination cases in light of such evidence);  O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 15.06 (5th ed.2000) (model text of “falsus in uno, falsus in omnibus” as a jury instruction); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”).

 The moral of the story?  Be sure your lies will find you out.

 

 

Categories
Sex Discrimination Title VII

Discrimination, “Other Act” Evidence, and the Tennessee Vols

This is part two of our series of blog posts about the strange events at the University of Tennessee.  When our story last ended, Athletics Director Dave Hart had forced out a long time female employee of the University.  She sued for, among other things, sex discrimination.

Other female employees who have worked for Mr. Hart are apparently willing to say, “Me too!”  In other words, it may be that other female employees, both from Hart’s time at U.T. and during his previous posts at other schools, will claim they suffered discrimination at his hands.

So here’s the question for trial lawyers:  can they testify?

Rule 404(b)(1) of the Federal Rules of Evidence says  that you can’t tell the jury about other bad things that folks have done in order to show that the person is a bad guy.  This is called inadmissible “character evidence.”

Rule 404(b)(2), however, says there is an exception.  You can introduce “other act” evidence to show a person’s “intent.”  In other words, the fact a person has discriminated against women in the past can be used to show that the person has a bias against females.

Courts have struggled with how far this can extend.  In 2008, the United States Supreme Court weighed in.  They handed down a decision called Sprint v. Mendelsohn.  In Sprint, the defendant convinced the lower court to exclude evidence of “other acts” of discrimination because they involved a different supervisor than the plaintiff’s. 

The Supreme Court disagreed.  They looked at the lower court’s belief that “me too” evidence was only admissible if it involved discrimination from the same supervisor.  The Supreme Court said  that you can’t have such a hard and fast rule.  Instead, there must be a “fact intensive, context-specific inquiry.”

Well, what does that mean for Dave Hart?  It’s probably not good news for him.  I don’t know the specifics of what other females are claiming.  It may be that there is some reason to exclude their testimony at trial.  However, the Supreme Court in Sprint held that “me too” evidence might come in even if it involved a different supervisor.  Since Hart was apparently the supervisor of all the females who are now crying foul, it seems difficult to see how he could keep them from testifying.

Now, allow me some shameless self-promotion.  A few years back, I wrote a law review article on this topic.  See “Previous Acts of Employment Discrimination: Probative or Prejudicial?” 25 American Journal of Trial Advocacy 297 (2001). 

Send me an email if anyone would like a copy of it.  They make great drink coasters.

Categories
Overtime/Wage & Hour Uncategorized

Rule 68 Offers of Judgment in FLSA Collective Actions: Is it Really an Offer?

When an employee files a collective action under Fair Labor Standards Act, she is trying to recover unpaid wages for herself and other workers who find themselves in the same pickle.

An astute defense lawyer might tell his client, “Pay her!” This is not necessarily altruism.  It might just be a sneaky little litigation tactic.

An “Offer of Judgment” under Rule 68 of the Federal Rules of Civil Procedure is where a defendant offers to have judgment taken against it.  If the plaintiff refuses, she must “beat the offer” at trial or have to pay costs.  This works well in most single party cases.  However, it creates some interesting (and unintended) complications in an FLSA collective action.

In a very good decision, the Sixth Circuit decided to sort all of this out so lawyers wouldn’t be left scratching our heads.  See O’Brien v. Ed Donnelly Enterprises, 575 F.3d 657 (6th Cir. 2009).  The Sixth Circuit said:

  1. If a defendant makes an offer of judgment for everything (or more) that the plaintiff is claiming, then the plaintiff’s claim is moot.  The court should just enter judgment and move on to other things.  It doesn’t matter whether the plaintiff formally accepts it.
  2. If the case is a collective action, however, the defendant cannot get rid of the case by offering only the lead plaintiff everything she is entitled to.  The Sixth Circuit said, “a Rule 68 Offer of Judgment cannot moot a lead plaintiff’s FLSA claim when the lead plaintiff timely moves for collective certification, because the motion relates back to the lead plaintiff’s filing of the complaint.”
  3. If the court ultimately denies the motion for collective certification, then no harm is done.  If the defendant had previously made an Offer of Judgment for the full amount the lead plaintiff is owed, then “the lead plaintiff represents only herself, and her claim is moot.”  She still gets her money.

Thanks to the O’Brien court, this has been the law in the Sixth Circuit (which includes Tennessee) for the last three years.  Recently, the Third Circuit addressed this issue and reached a result that was similar in most respects.  All of the courts, however, do not agree.  If you’ve read this blog very much, you know that it’s hard to get judges to agree on anything.

The United States Supreme Court has now decided they need to take a look at this issue.  They granted certiorari in the case from the Third Circuit, Genesis Healthcare Corp. v. Symczyk.    Oral argument is December 3.

This will be the first procedural FLSA case the Supreme Court has tackled in some time.  It will be interesting to see how the court handles this specific issue.  On a broader scale, it will give us the first look at the way the Roberts court views the procedures that have developed in FLSA collective actions.    Stay tuned.

Categories
ADA & ADAA Age Discrimination (ADEA) Retaliation Whistleblower Law

Allegations of Discrimination and Retaliation at the University of Tennessee: Employment Law Meets College Athletics

There’s a lot more action in the courtroom than on the football field at the University of Tennessee these days. This blog is the first in a series of periodic posts that will explore allegations of illegal employment practices in the U.T. Athletics Department.

Nearly two decades ago, I was an undergraduate at U.T.  As part of a course project, I was on a team of students who did an organizational evaluation of the Women’s Athletics Department.  UT was one of the few universities that separated its men’s’ and women’s’ athletics departments.  I had the opportunity to meet former women’s athletics director Joan Cronan, who was extremely gracious to me and my fellow students.  I also met Debbie Jennings, who struck me as a no-nonsense but deeply committed sports information director. 

At the time, President Joe Johnson was admired and respected by students, faculty, and alumni.  Joan Cronan presided over arguably the most successful women’s athletic program in the country.  And Pat Summitt was . . . well, she was Pat Summitt.

Much has now changed.  The women’s athletic program has merged with the men’s program.  Dave Hart, a new athletic director, is steering the ship.  Pat Summitt has retired under increasingly unclear circumstances.  And Debbie Jennings was forced to resign and has filed a discrimination and retaliation case against the university.

For an overview of the circumstances, you can read this link: http://www.govolsxtra.com/news/2012/oct/03/debby-jennings-suit-amended-to-include-pat/

The strange case of Jennings, Hart, and Pat Summitt is the stuff of law school examinations.  While playing out dramatically in the newspapers, it also reaches across the pantheon of contemporary employment laws.

How strong are Debbie Jennings age and sex discrimination claims?

Can she use statistical evidence, such as the change in the gender make up of employees, as evidence of illegal discrimination? 

Was Pat Summitt protected from termination under the Americans with Disabilities Act?

Was Debbie Jennings protected from termination if she stood up for Summitt?

Can the athletics director’s past actions be used in against him in this case?

These questions involve the intersection of:

–           the Age Discrimination in Employment Act,

–           the Americans with Disabilities Act,

–          the use of statistical evidence in discrimination cases,

–          whistleblower laws,

–          use of “prior inconsistent statements” under evidence law, and

–          use of “other act” evidence under Fed.R.Evid. 404(b).

Law nerds who care nothing about sports are giddy about this case.

Stay tuned.  More posts to follow.

Categories
Sexual Harassment

Who’s the Boss? The Supreme Court to Define “Supervisor” for Purposes of Supervisor Sexual Harassment Liability

I am a child of the 80s.  I dated girls with big hair, heard Ronald Reagan tell me it was “morning in America,” and had a crush on Alyssa Milano. 

Milano played “Sam” on the situation comedy “Who’s the Boss.”  The show told the story of a male housekeeper from Brooklyn who worked for a successful single mother in Connecticut.  As the name suggests, viewers were never really sure who was in charge of the house.  There was great confusion concerning who the “boss” actually was.

The Courts of Appeal throughout the country can apparently relate.  In the area of sexual harassment law, an employer can certainly face liability for either co-worker harassment or supervisor harassment.  The rules, however, are very different if the perpetrator is a supervisor as compared to a co-worker.  Therefore, before a judge or lawyer can know which legal rules apply, they must know whether or not the perpetrator was the victim’s “supervisor.”

Some courts hold that a “supervisor,” for purposes of sexual harassment law, is those people who can hire, fire, demote, promote, transfer, or discipline an employee. 

Other courts read the term “supervisor” more broadly.  They hold that a “supervisor” is anyone who directs or oversees the daily activities of the sexual harassment victim.

In Vance v. Ball State, the district court kicked the case out of court because the harasser was not a “supervisor.”  The Seventh Circuit agreed.  “Not so fast,” said the U.S. Supreme Court.  They decided to take a look at the issue. 

Oral argument is set before the U.S Supreme Court on November 26, 2012.  At long last, perhaps the smartest men and women in the world (those who wear black robes) will answer the question that has plagued me since Alyssa Milano first stole my heart.  Who’s the boss?

Categories
Overtime/Wage & Hour

Horton Who? FLSA Collective Actions Following the D. R. Horton Decision

When I think about class action waivers in employment contracts, I’m reminded of  Dr. Seuss and Mark Twain.  Twain once said,  “News of my death is greatly exaggerated.” 

Employee rights advocates have thought for a while that  class and collective actions  under the Fair Labor Standards Act might also be dead.  Like Twain, perhaps news of the death of FLSA collective actions in arbitration has been exaggerated.

It is generally permissible for arbitration and employment agreements to have clauses which prevent employees from pursuing class or collective actions. That’s what our friends in the defense bar have been telling us.  Not so fast, says the National Labor Relations Board.  That brings us to Dr. Seuss.

My eight year old loves “Horton Hears a Who” by Dr. Seuss.  If I’m real honest, I didn’t like Horton.  My son insisted that we go see the Dr. Seuss musical based on “Horton” at the Nashville Children’s Theatre.  He loved it.  I was miserable. 

I have, however,  changed my mind. I love Horton.  I love everyone and everything named “Horton.”  I especially love the National Labor Relation Board’s recent D.R. Horton decision.

In D.R. Horton, the NLRB held that a contract which prohibits collective actions is void because it violates the National Labor Relations Act.  The Act prohibits  agreements that prevent employees from engaging in concerted activity.  Horton reasoned that collective actions are “concerted activity” and thus cannot be waived.

So what are employee rights lawyers to do?  If you know of the class action waiver prior to filing suit, I suggest filing a charge with the National Labor Relations Board to declare it an unfair labor practice.  Then file your lawsuit.  When you get the obligatory Motion to Compel Arbitration, tell the judge that the agreement is an unfair labor practice, tell her that you’ve filed your charge with NLRB, and ask her to strike it down.  If you don’t know about the agreement when you file suit, I suggest you file your charge with the NLRB as soon as you find out about it, which will probably be when you get served with the Motion to Compel Arbitration.

In the meantime, we’ll keep an eye on how the courts interpret Horton, and I’ll be a lot more tolerant of that darn elephant.

Categories
Retaliation Whistleblower Law

A Lesson in Whistleblower Employment Law from Penn State

Like everyone, I’ve watched the events at Penn State unfold with shock. As an employment lawyer, there was one aspect of this case that was troubling but, unfortunately, not surprising.

Do you recall the portion of the report commissioned by the university that detailed the experience of two janitors in the Penn State athletic department? One of the janitors witnessed an incident of child rape. He was a Korean War veteran. He told his fellow custodian about it. He said that it was most horrible thing he had ever witnessed, worse than the hell of war.

The janitors, however, did not report it. Why?  Because they understood the culture of the place where they worked. They believed they would be fired if they came forward. In his report, Judge Freeh infers they were probably right.

Employment lawyers see this all the time. A victim doesn’t report sexual harassment because she needs her job and fears the consequences. A whistleblower comes forward and finds himself in the unemployment line.

Very little of any value will come of the events in State College, PA.  Hopefully, however, some  lessons will be learned. Here are a few from the prospective of someone who deals with employment lawsuits every day.

1. For victims, don’t be afraid to report abuse, sexual harassment, or employer misconduct.

2.  For workers who know of illegality in the workplace, have the courage to speak out. If you don’t stop it, nobody will. Talk to an employment attorney. There are laws in place to protect you.

3.  For employers, the lesson is clear. Culture matters. You have a choice. You can create a culture of compliance that values the well-being of your employees. Alternatively, you can cultivate a culture that discourages reports of illegal activity.  If you choose this course, however, you may face a jury one day and have to explain how you’re any different from those that called the shots at Penn State.

Categories
Overtime/Wage & Hour

Chinese Overtime? I Thought This Was America.

What employees should know about the fluctuating workweek

One day a prospective client walked into my office and told me that she was paid “Chinese overtime.”  I knew that China was taking over a good deal of the world economy,  but I had no idea that we were now paying employees based on their law.

When I looked into the way this client was being paid, it certainly seemed like something from a Communist country.   “Chinese overtime” is a slang phrase that refers to the fluctuating workweek regulations of the Fair Labor Standards Act.  Basically, these regulations say that an employer can pay an employee “half time” instead of “time and a half” for the hours worked over 40.  This, of course, results in a huge savings for employers.  When you do the math, an employee usually makes about 25% of the overtime that they would make with most employers.  In exchange, however, employers must guarantee employees a minimum of 40 hours of pay every single week.  Sounds easy enough, but the devil is in the details.

In the case of the fluctuating workweek regulations, there are a bunch of details.  Consider, for example,  a policy that gives employees only a limited number of sick leaves or says that employees are not paid for jury duty.  In that case, the employees pay is not guaranteed.  In that case, an employee may be owed a whole lot of unpaid overtime because the employer never had a valid fluctuating workweek plan in place.

An employee may also be entitled to unpaid overtime if the employer paid the employee more than the guaranteed salary.  Huh?  An employer cannot pay an employee more than the guaranteed salary?  Well, according the Department of Labor and a whole host of really smart federal judges, that also violates the fluctuating workweek.

This make a lot of sense when you think about it (federal judges are smart folks, you know).  The law does not want to encourage employers to shift a large portion of an employee’s salary to some type of bonus while simultaneously paying them a pittance for an hourly wage.

The long and the short of it is that the fluctuating workweek can be done legally.  In my experience, however, it usually is not.  My firm has handled two large national class actions and a number of class actions against major regional companies who have screwed up the fluctuating workweek.  It’s very hard for a company to implement the fluctuating workweek correctly.

So . . . if you’ve been told that your overtime is paid by “Chinese overtime,” you might want to call a lawyer.  Our friends from China have not yet taken over America’s labor laws.