Volunteer or Employee? Get It In Writing.

By Kathleen J. Jennings (kjj@wimlaw.com)

Volunteer or employee? A recent case out of the 6th Circuit answers this question for a group of adults who volunteered at a church’s for-profit restaurant business. (Acosta v. Cathedral Buffet, Inc., 6th Cir., No. 17-3427, opinion issued 4/16/18).

The Department of Labor (DOL) sued the Cathedral Buffet because it relied heavily on work performed by recruited church volunteers. The U.S. District Court for the Northern District of Ohio ruled in favor of the DOL in March 2017, finding that the church members were coerced into volunteering at the restaurant and awarded the Labor Department a total of $388,508.

The 6th Circuit Court of Appeals reversed that decision and held that the district court did not apply the proper analysis to the situation. According to the Circuit Court decision, the first step in the analysis must be to decide if adult workers expect compensation for their work. Only if a worker expects compensation may a court then “assess the economic realities of the working relationship,” the decision went on to say. Under the Fair Labor Standards Act, courts look at the “economic realities” of an employer-worker relationship to determine if minimum wage and/or overtime is payable.

In Cathedral Buffet’s case, the recruited volunteers didn’t accept wages, in-kind goods or services, or tips for their work. However, the evidence showed that they did not expect to, because they volunteered their work to further their religious beliefs, and several of them provided sworn affidavits to that effect.

The 6th Circuit distinguished this case from a case decided by the 10th Circuit in March 2018 in which a pecan ranch was ordered to pay $200,000 for using unpaid child labor through an arrangement with the Fundamentalist Church of Jesus Christ of Latter-Day Saints. In the 10th Circuit case, there was evidence that the children were coerced into working for the pecan ranch. (Acosta v. Paragon Contractors Corp., 10th Cir., No. 17-4025, 3/13/18).

Pro tip: Want to avoid trouble with the DOL? Prepare documentation for a volunteer to sign that acknowledges that the volunteer does not expect compensation for his/her work and why (i.e., religious conviction, service to the community or a particular cause, etc.).

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Bullying vs. Harassment in the Workplace—What’s Actionable?

By Kathleen J. Jennings (kjj@wimlaw.com)

Picture the workplace bully: that manager that publicly humiliates any employee who makes a mistake at work, belittles any employee that dares talk back to him, and then storms down the hall bellowing “I’m in the mood to fire someone today!” He’s bad for employee morale, but has he engaged in actionable harassment? If he focuses his bullying on a particular protected class of employees, such as women, people over 40, racial minorities, etc., then yes. But if he abuses everyone and anyone, regardless of gender, age, race, etc., then he is what we like to call an “equal opportunity harasser,” and his behavior is probably not actionable under federal anti-harassment laws. That doesn’t mean it should be tolerated, though. This kind of behavior is likely to contribute to high employee turnover and the loss of good employees. Moreover, such behavior is likely to upset employees so much that they may consult with an attorney and/or file a charge with the EEOC. While the charges and lawsuits that result from these actions may be legally defensible, they are still going to cost the company attorneys’ fees and time to defend. The company’s reputation may take a hit, too.

Similarly, if an employee abuses another employee simply out of personal spite or vindictiveness, it is not actionable harassment, at least in Texas. In Alamo Heights Indep. Sch. Dist. v. Clark (Tex. en banc, No. 16-0244, opinion issued April 6, 2018), the Texas Supreme Court ruled that the bullying and harassment of a female middle school coach by another female coach was not actionable harassment because it was not motivated by the plaintiff’s gender. Though the bully made comments about plaintiff’s body and sexuality and made the plaintiff’s life miserable, the court said the comments were a result of personal dislike and vindictiveness and therefore, were not unlawful harassment. The employer won this case—but it had to litigate all the way to the Texas Supreme Court to do so.

Although there can be a legal distinction between bullying and actionable harassment, it is a distinction without a difference at the time an employee makes a complaint to the company about the behavior of another employee. As we have advised in the past, a company should never ignore an employee complaint of “harassment.” A company should conduct some form of investigation in response to every complaint. If an employee has taken that step of using the company’s complaint procedure, the company needs to show that it takes matters of harassment—and bullying– of employees seriously. Otherwise, the company may be doomed to high employee turnover and expensive lawsuits.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

The US Department of Labor/Wage and Hour Division Launches PAID Program

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Wage and Hour Division (WHD) of the U.S. Department of Labor launched a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program. PAID facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). The program’s primary objectives are to resolve such claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

Under the PAID program, employers are encouraged to conduct audits and, if they discover overtime or minimum wage violations, to self-report those violations. Employers may then work in good faith with WHD to correct their mistakes and to quickly provide 100% of the back wages due to their affected employees. According to the DOL, if an employer chooses to participate in the PAID program and to “proactively work with the Division to fix and resolve their potential compensation errors,” the DOL will not impose penalties or liquidated damages to finalize a settlement.

An employer may not initiate the process to resolve any issues for which DOL is already investigating the employer, or which the employer is already litigating in court, arbitration, or otherwise. An employer likewise may not initiate the process when an employee’s representative or counsel has already communicated an interest in litigating or settling the issue. Also, employers cannot use the program to repeatedly resolve the same violations, as this program is designed to identify and correct non-compliant practices.

WHD is implementing this self-audit pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, potential modifications to the program, and whether to make the program permanent.

A reasonable question: why would employers participate in the program if they can perform their own internal audits and pay whatever additional wages they conclude are appropriate?

According the DOL, the main benefit of this program to employers is DOL supervision of the payment of unpaid wages, and the execution of valid employee releases that release their rights to privately sue the employer for the unpaid wages. Under the FLSA, private out-of-court settlements do not result in a waiver of employees’ rights to sue their employer.

Nevertheless, we advise that employers tread carefully if they choose to participate in this program. If your company does choose to participate, we recommend that you have qualified counsel assist in the process and calculations. It also remains to be seen how the DOL will treat repeat violations of issues resolved in the PAID program.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Manager’s Sexually Explicit Ringtone Results in Lawsuit

By Kathleen Jennings (kjj@wimlaw.com)

Some cases just make me shake my head. Today I read about a lawsuit filed by a female supplier engineer against Trane U.S., Inc. for sexual harassment. (Arrindell v. Trane U.S., Inc., W.D. Tenn., No. 2:18-cv-02164, complaint filed 3/9/18). What did her manager do? He programmed his phone to play a ringtone that mimicked the sound of a woman having an orgasm. (I had no idea this was even a thing). The Plaintiff alleges that she told him she found it offensive, but the manager kept playing the ringtone and also tried to engage her in sex talk.

To make matters worse, according to the Complaint, the plaintiff complained to HR, but the HR representative kept putting her off. In the meantime, the plaintiff alleges that after she complained, the manager reduced her engineering role and responsibilities and ordered her to perform non-engineering work outside her job scope, including daily work in the warehouse.

Can a company be liable for a manager’s tasteless ringtone? Yes, it can. This case demonstrates the importance of promptly responding to an employee’s complaint of sexual harassment.

The takeaway: If a manager really thinks it is OK to play a ringtone that mimics the sound of a woman having an orgasm in the workplace, this is a sign that the company’s culture needs some serious work. Creating and reinforcing a company culture that emphasizes respect for all employees is the first step toward eliminating sexual harassment in the workplace.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Title VII Prohibits Discrimination Against Transgender Workers, Says Appeals Court

By Kathleen J. Jennings (kjj@wimlaw.com)

In another example of a federal appellate court using an expansive definition of the word “sex” (for another, see this blog post), the Sixth Circuit Court of Appeals ruled that Title VII’s prohibition of discrimination “on the basis of sex” includes discrimination based on gender identity or because the person is transitioning between genders. (EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 6th Cir., No. 16-2424, summary judgment reversed 3/7/18).

This case involves Aimee Stephens (formerly known as Anthony Stephens), who was born biologically male. While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed an EEOC Charge alleging sex discrimination. An interesting fact that came out of the investigation of Stephens’ EEOC Charge was that the Funeral Home provided its male public-facing employees with clothing–at no cost to the male employees–that complied with the company’s dress code while female public-facing employees received no such allowance. This is the kind of low-hanging fruit that will definitely get the EEOC’s attention.

The court below granted summary judgment to the Funeral Home and dismissed the case. The Sixth Circuit reversed, finding that this case was controlled by the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S. Ct. 1775 , 104 L. Ed. 2d 268 (1989), which held that discrimination based on a failure to conform to stereotypical gender norms is a form of sex discrimination prohibited by Title VII.

Moreover, the Sixth Circuit expressly held that that discrimination on the basis of transgender and transitioning status violates Title VII. The Court also rejected the Funeral Home’s owner’s argument that compliance with Title VII’s prohibition of discrimination against transgender employees substantially burdened his religious practice. The owner was concerned that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift. Nope, said the Court: “as a matter of law, bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.”

This is a significant decision, and we will wait and see if other Circuits will embrace this interpretation of Title VII. Employers should be watching these developments closely.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Employees Can Bring Guns to Work in Georgia—But Who is Liable if They Use Them? The Georgia Supreme Court Says the Employer May Be Liable.

By Kathleen Jennings (kjj@wimlaw.com)

The Georgia Supreme Court just complicated the issue of employee possession of guns in the workplace for Georgia employers. In Lucas v. Beckman Coulter, Inc., (Georgia Supreme Court Case No., No. S17G0541, 3/5/18), the Georgia Supreme Court held that OCGA § 16-11-135 (e) , which is part of the Business Security and Employee Privacy Act, (also affectionately known as the “Bring Your Guns to Work Law”) does not grant immunity “from firearm-related tort liability” to an employer who was sued for liability for the allegedly negligent acts of its employee under the theory of respondeat superior, and for the employer’s alleged negligent supervision.

The case involved an employee, Jeremy Wilson, who accidentally shot another employee, Claude Lucas, with his handgun while they were out on a customer call. Wilson normally kept his handgun in his car, but he took it with him on the customer call when he heard that there were a number of thefts from vehicles in the customer’s parking lot. The company had a policy prohibiting employees from transporting firearms while on company business.

At the time of the shooting, OCGA § 16-11-135 (e) read as follows:

No employer, property owner, or property owner’s agent shall be held liable in any criminal or civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession, or use of a firearm, including, but not limited to, the theft of a firearm from an employee’s automobile, pursuant to this Code section unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer’s premises. Nothing contained in this Code section shall create a new duty on the part of the employer, property owner, or property owner’s agent. An employee at will shall have no greater interest in employment created by this Code section and shall remain an employee at will.

The trial court and the Court of Appeals found that this provision insulated the company from liability for Wilson’s shooting. The Georgia Supreme Court, however, disagreed. It held that this Code section does not immunize an employer for all damages arising out of an employee’s transportation, storage, possession, or use of a firearm. Instead, it held that “the intent of subsection (e) is to exempt employers from liability that might arise by complying with the Code section’s prohibition against maintaining a policy of searching an employee’s own vehicle (or those of guests) on the employer’s parking lot or its prohibition against conditioning employment on an employee’s agreement not to bring firearms into the parking lot in the employee’s own vehicle, even when they are locked out of sight by an employee who possesses a weapons carry license.” In other words, this statute insulates an employer from liability only for actions taken to comply with the law’s intent to allow employees to keep firearms in their locked vehicles free of the threat of a search or losing their job. That’s a big difference.

Bottom line: OCGA § 16-11-135 (e) does not give employers blanket immunity from liability for torts committed by their employees with guns.

Pro tip: In light of this new decision, Georgia employers should review their policies and practices regarding employee possession of guns in the workplace. Georgia law provides that employers cannot prohibit employees from bringing guns to work as long as the employees leave them locked in their private vehicles in the parking lot. However, private property owners in Georgia can prohibit people from bringing firearms onto their property. Keep in mind that the employee in this case was not on the employer’s premises but was out on company business, so those situations need to be addressed as well.

And remember: a written policy is no good unless the employer actually enforces it.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Appeals Court Rules that Title VII Covers Discrimination Based on Sexual Orientation; Sets Up Possible Showdown at U.S. Supreme Court

By Kathleen Jennings (kjj@wimlaw.com)

Earlier this week, the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont), in an en banc decision, ruled that Title VII’s prohibition on discrimination on the basis of sex extends to discrimination based on sexual orientation. (Zarda v. Altitude Express, Inc., 2d Cir., No. 15-03775, opinion 2/26/18).

“Sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex,” the appeals court said in an opinion by Judge Robert Katzmann.

This decision reversed one by a three-judge panel of the same court. The case drew a lot of interest: a group of 50 companies and organizations—including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc.—filed briefs arguing discrimination based on sexual orientation should be illegal. On the other side, the Trump administration supported the employer and argued against the protection of sexual orientation from discrimination under Title VII. Attorney General Jeff Sessions has been critical of the decision.

This is the second Appeals Court (the Seventh Circuit is the other) to find that discrimination on the basis of sexual orientation is covered by Title VII. However, the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) ruled last year that Title VII does not cover discrimination on the basis of sexual orientation. A request for the U.S. Supreme Court to hear the Eleventh Circuit case was denied. Nevertheless, there is an obvious split among the Circuits on this issue, and the U.S. Supreme Court is the place to resolve these types of splits, so stay tuned!

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.