Vets Are Docs For FLSA Purposes

Since vet bills seem to be a major expenditure in our household, it is comforting to know that veterinarians are "engaged in the practice of medicine" and thus fall within a subset of professional employees who are not required to be paid on a salaried basis in order to be exempt. That was the issue in Clark v. United Emergency Animal Clinic (9th Cir. 12/7/04) [pdf], where vets at the all nite emergency clinic were paid on a shift basis, rather than receiving a set salary. Did that mean they were non-exempt? Not if they were deemed to be "engaged in the practice of medicine." Although the Secretary of Labor did not choose to specifically mention vets in the regulations discussing this niche of the wage and hour law, neither the district nor appeals court had trouble finding that vets are properly classified as "engaged in the practice of medicine." So the vets paid on a shift basis were properly classified as exempt from the FLSA. Just because they practice their healing powers on Fido not Grandma, does not make it any less the practice of medicine. Or, it often seems, any cheaper.

Harassment Settlement - A Million Whoppers (More or Less)

I once had a client who liked to measure proposed settlement dollars in how much he would have to sell to replace the money he was contemplating paying to make a business problem go away. Liked is probably not the right word, but you understand the concept. The EEOC press release, Burger King Franchise Pays $400,000 for Alleged Sexual Harassment of Teens detailing what it took to settle a case at one fast food restaurant made me do some rudimentary math to figure the cost out in Whoppers.



According to some very surface internet research, profit margins at fast food restaurants in the 2003 time frame were in the 15 to 20% range. (See Chicago Sun story posted at a website for McDonald's franchisees). Apply the 15% figure to a $2.50 Whopper with cheese, and divide that into the $400,000 settlement figure and if my math and theoretical concept are correct, that's a million plus Whopper settlement.



Regardless of the accuracy of either the rationale or the math, there is very little dispute that it will take a lot of burgers to make up for this problem. According to the attorney for the seven workers who brought the suit (six were in high school when the alleged harassment occurred):

The girls complained to several assistant managers who felt helpless to assist them because [the alleged harasser] was their boss, too. They finally figured out how to go over [the harasser's] head, and when they complained to headquarters, they let him resign. The question is why it took four to five months to get reported right.

Under the settlement agreement, the company will do more than pay the $400,000, in addition it:

will conduct extensive sexual harassment training for management personnel, including eight hours of training for several upper-level managers, distribute the revised sexual harassment policy and procedure to all restaurant employees, and more prominently post an 800-number hotline for reporting harassment throughout their restaurants.

Those actions are not without cost, but probably not a million whoppers worth.

8th Circuit Adopts Standard of Willfulness for FMLA - And the Power of Recorded Words

The 8th Circuit today joins the 1st and 6th Circuits in applying the FLSA standard of willfulness in determining whether the 2 or 3 year statute of limitations is applicable under the FMLA. The standard: "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Hanger v. Lake County, Minnesota (8th Cir. 12/7/04) [pdf]. The Court helpfully pointed out what is not sufficient to prove reckless disregard under the statute:

the employer’s general knowledge regarding a statute’s potential applicability; and

its failure to obtain legal counsel on whether there is a potential FMLA violation,

apparently even combined, is not sufficient to make the 3 year statute of limitations applicable.



Since that was the only evidence here, the 2 year statute was applicable, sinking the case of Ms. Hanger who sued more than two years after she returned from FMLA leave. She claimed it was was not the same or an equivalent position to which she returned. Although the pay and benefits were the same, she no longer was to communicate directly with the Board of Commissioners, but had to go through a Ms. Parkinson, hired while Hanger was on leave and retained even after Hanger returned. Hanger also was forced to submit time sheets for the first time. However, since all those conditions were in place two years before she sued, Hanger's case was dismissed with no ruling on the merits.



Although disappointing, it would probably be worse if Hanger had not already had some measure of satisfaction against the County. Within two weeks of her return, an incident between her and her now new supervisor, Ms. Parkinson, led her to resign and complain that her rights under the Minnesota Veterans Preference statute had been violated. At a hearing on her claim, three Commissioners testified that they never intended to put Parkinson in a position of authority over Hanger. Unfortunately for the Commissioners, that testimony was contradicted by the tape recording of the meeting preceding Hanger's return where the Board "specifically discussed where to put Ms. Parkinson in the chain of command," and "Commissioner Chair Nelson stated that he intended to place Ms. Parkinson in a position of authority over Ms. Hanger." Faced with the tape recording, the Commissioners withdrew their opposition to her Veterans claim and reinstated Hanger to her former position with full responsibilities.



Although today the Commissioners won the FMLA claim, one suspects that this matter was a valuable reminder to the Commissioners of the power of recorded words, whether in a letter, email or a tape recording.

Will GPS Be In Your (or Your Boss's) Stocking this Christmas?

This still may not yet be the year that GPS has its break through in consumer electronics, but it is coming. The major retailers all have multiple gps products in their Christmas catalogs although the cost is still in excess of the sweet spot for most consumers. But now that they are making the holiday offerings, you can bet it is only a matter of time before the technology is commonplace. It is already soon enough to be aware of their application in the workplace.



For an introduction check out an overview from Robert C. Goldberg, the General Counsel of the Business Technology Association, Employee Monitoring Technology Use Must be Fair and from an employee oriented view point, On Your Tracks: GPS Tracking In the Workplace, from the National Workrights Institute. Professor Rafael Gely at the Labor Prof Blog caught one of the first instances of the issue becoming a subject of collective bargaining in talks between the City of Chicago Parks department and Service Employees International Union Local 73. You can see how the union felt about the possibility of Big Brother monitoring by checking out the story in the Chicago Sun Times.

Why the Supreme Court is Over the 9th Circuit - Police Masturbation Video Not OK

Sometimes (often?) you wonder about the collective wisdom of the 9th Circuit. Fortunately, the Supreme Court doesn't have much reluctance in bringing them back to earth when needed. Today is just such a case. City of San Diego v. Roe (U.S. 12/6/04) [pdf]. Perhaps marking the first intersection of e-bay, employment and the highest court, the Court today held that the City of San Diego had not violated the free speech rights of a former police officer who had the temerity to:

make a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His user name was 'Codestud3@aol.com,' a word play on a high priority police radio call. 356 F. 3d 1108, 1110 (CA9 2004).

Following a fellow officer finding a reference to a SD police uniform for sale on e-bay and searching for other references by 'codestud3', an internal affairs investigation was begun. During the investigation:

in response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating.

What happened to a good old fashioned bribe?



Besides being amazed about the commercial viability of a market for his product, I am surprised (but less amazed) that the 9th Circuit found, "Roe's conduct fell within the protected category of citizen commentary on matters of public concern." Apparently, "central to the Court of Appeals' conclusion was that Roe's expression was not an internal workplace grievance, took place while he was off-duty and away from his employer's premises, and was unrelated to his employment."



In its per curiam opinion, without awaiting the need for oral argument the Supreme Court put this one squarely where it belonged:

Although the boundaries of the public concern test are not well-defined, Connick provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. ... In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and Time, Inc. v. Hill, 385 U. S. 374, 387?388 (1967). These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. ...



Applying these principles to the instant case, there is no difficulty in concluding that Roe?s expression does not qualify as a matter of public concern under any view of the public concern test. He fails the threshold test and Pickering balancing does not come into play.

Connick is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in Connick from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in Connick would have held that the entirety of the questionnaire circulated by the employee "discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which . . . an elected official charged with managing a vital governmental agency, discharges his responsibilities."461 U. S., at 163 (opinion of Brennan, J.). No similar purpose could be attributed to the employee’s speech in the present case. Roe’s activities did nothing to inform the public about any aspect of the SDPD’s function-ing or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe's expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image.

The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court?s cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.

SCOTUS has its usual quick and incisive look at the decision, here. And they raise a concern that in the second part of the opinion, from which I quote above, the Court may arguably have gone too far. While I certainly appreciate the concerns about narrowing the breadth of discussions, you have to admit in a very non-scholarly fashion - police, masturbating --- PLEASE!



UPDATE: For more information, including a 'picture' of Officer Roe, check out the news article in the Gay City News shortly after the 9th Circuit decision.

"Me Too" Evidence and the Peculiar West Virginia Single Digit Rule

No, this does not have anything to do with the much appreciated full five finger wave applauded by President Bush on his recent trip to Canada.* Instead it is about an unusual decision emanating from the Supreme Court of Appeals of West Virginia, McKenzie v. Carroll International Corporation, (W.Va. 11/12/04) as described by Brian Peterson in his eponymous log devoted to that state's jurisprudence, Brian Peterson's West Virginia Legal Weblog.



The issue is one of great concern to all management side employment lawyers --- being deluged with evidence of former employees about their particular scrapes with the employer to which they attribute discriminatory motives, in a lawsuit brought by yet another employee. Many courts shy away from such evidence, as did the trial court here, realizing that it quickly turns into a series of mini-trials, which is inherently confusing not to mention the probability of harm to the defendant employer. Here a defendant's jury verdict was undone because the trial court excluded such evidence.



And for future guidance, the Court added what Brian refers to as the "best 9 rule" footnote:

Obviously we do not believe that a plaintiff should be allowed to parade dozens of witnesses to testify about their alleged discrimination experiences with an employer, but a single digit number of witnesses, as in this case, is not too burdensome or repetitious.

Best of luck to those defending West Virginia employers, perhaps in their last case before they move their facility elsewhere!





*President Bush dismissed concerns Tuesday about strained ties between the United States and Canada, thanking those Canadians who turned out to wave "with all five fingers" during his first official visit. CNN. com.

Even the Mascot Sues

Viliami Fehoko, better known as Vili the Warrior, the mascot for the University of Hawaii Warriors (formerly the Rainbow) is alleging discrimination against his former employer, the Polynesian Cultural Center. He is Tongan and they prefer Samoans according to the story in the Pacific Business News. Vili is one of the best recognized figures in Hawaii:

dressed as a snarling "warrior," his face painted black and green, Fehoko charges along the sidelines of football games and men's volleyball matches, cheering on UH and snarling at opponents. A year ago, he grabbed headlines for antics at a UH football game that included taunting opposing players, throwing a bracelet at a cheerleader and putting wrestling moves on the other team's mascot. While some suggested that the character of Vili be retired, support from fans and coach June Jones.

For more on his run in with Big Al, the elephant mascot of the University of Alabama and other issues Vili has had (complete with pictures of Vili) check the story from Honolulu Star-Bulltin earlier this year. According to the lawsuit his termination at the popular tourist center followed a run-in a week earlier with a "guest" of the center who had snatched a ukulele Fehoko was playing.



Given his apparent "anger management" issues, probably not a good time to apply for an NBA position.