Getting Paid to Read Books - Employee Sues?

This seems to be a week for Catch 22 stories. The facts are a little complicated, but it appears Patricia Freund, a New York state employee, raised questions about state workers attendance at Governor Pataki's non-denominational prayer breakfast. She went at the urging of her boss, but later complained to co-workers. According to her, in retaliation for her complaints:

Her duties were taken away from her and she was relegated to a back office where she now spends her time often reading books she brings from home. With benefits, her job costs taxpayers about $100,000 a year.

Her lawyer, "it's making her absolutely crazy." Check out the AP story in Newsday. A few New York taxpayers footing the bill for her quasi-employment and now the litigation costs, might go bonkers as well.



Thanks to Professor Gely for the tip on this story at the Labor Prof Blog.

Is That Bartender Wearing Makeup?

If you are at Harrah's and the bartender is female, the answer better be yes, if the bartender is male, the answer better be no. But the question decided today in Jespersen v. Harrah's Operating Company, Inc. (9th Cir. 12/28/04) [pdf] - - is that legal? Darlene Jespersen was a long tenured, and by all accounts excellent bartender for Harrah's who for many reasons chose not to wear make up. For many years that caused no problems, but in 2000 a new imaging program and her personal feelings collided. Ultimately, her refusal to wear makeup led to her discharge, a claim for sex discrimination and today's decision.

Over a vigorous dissent, the Court upheld Harrah's policy and Jespersen's discharge. The Court had to deal with two different arguments. First, its own test which permits different appearance standards for men and women, as long as they don't impose unequal burdens on the two sexes. Here the two parties had distinctly different views on how this test should be applied:

In doing so we must weigh the cost and time necessary for employees of each sex to comply with the policy. Harrah’s contends that the burden of the makeup requirement must be evaluated with reference to all of the requirements of the policy, including those that burden men only, such as the requirement that men maintain short haircuts and neatly trimmed nails. Jespersen contends that the only meaningful appearance standard against which the makeup requirement can be measured is the corresponding “no makeup” requirement for men.

The Court agreed with Harrah's approach and held that Jespersen's offer of "academic literature discussing the cost and time burdens of cosmetics" was no evidence of what was needed in this case, the burden on the male bartenders of complying with the grooming and dress policy vs. the burden of female bartenders of complying.

The second prong of Jespersen's attack was that the makeup requirement was based on a sexual stereotype which is prohibited by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The way around that for the Court, "In short, although we have applied the reasoning of Price Waterhouse to sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here." And just in case there was any doubt about how the majority felt about the dissenting view on this point, "We thus disagree with the dissent’s assertion that 'Jespersen has articulated a classic case of Price Waterhouse discrimination. . . .' Dissent at 17474."

This was a widely publicized case and drew amicus briefs from the Lambda Legal Defense & Education Fund, the American Civil Liberties Union of Nevada, Northwest Women’s Law Center, California Women’s Law Center, The Gender Public Advocacy Coalition, the National Employment Lawyers Association, Alliance for Workers’ Rights, and The Legal Aid
Society — Employment Law Center on behalf of Jespersen and the Employment Law Equity, American Hotel & Lodging Association, and California Hotel & Lodging Association on behalf of Harrah's.

This case is unlikely to go quietly into the night. Look for en banc consideration and ultimately certiorari on this one. Two interesting choices for courts looking at this issue: do they take on what seems to be somewhat metaphysical arguments over the burdens of a policy on one sex versus another or do they venture into the treacherous waters of broadening the law of 'sexual stereotypes.' I can't imagine many judges see much appeal in either path.

It may take some time to get the answer. Unlike the 2nd Circuit which disposed of an FMLA claim 8 days after oral argument, see my post here, the case decided today was argued on December 3, 2003. Check back in 2006 for how this one finally turns out.

Update: It was affirmed, see posting on April 17, 2006, 9th Circuit Upholds Makeup Rule.

Congrats to George's Employment Blawg

Dennis Kennedy, a true luminary in the blogging world has handed out his 2004 Legal Blogging Awards and recognized George Lenard's blog as the runner up (to Marty Schwimmer's The Trademark Blog) in the Best Practice - Legal Specific Blog. See George's comment here, This Blawg wins coveted award. Congrats to George and all the other winners, including Dennis who selected himself, along with Tom Mighell (Inter Alia) as "Best Legal Blogging Expert." One might argue a little immodest, but not likely to find many who would disagree.

Yet Another FMLA Decision - This Time in 8 Days

In a shorter period than the time you need to give an employee to get a medical certification under the FMLA, the 2nd Circuit tossed an employee's FMLA claim. Argued on December 15th and decided on December 23, (both 2004) the Court obviously did not need a lot of time. Porter v. NYU Law School (2nd Cir. 12/23/04). It helped that the opinion could be short as all the Court needed to do was agree with the 1st and 6th Circuits, that the FLSA definition of willfulness was applicable to the FMLA. Under that test as set out by the Supreme Court:

an employer acts willfully when he or she “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” The McLaughlin Court added that “[i]f an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be . . . considered [willful.]”

Although not giving the specifics, the Court found under that test "the facts alleged by Porter cannot conceivably amount to willful behavior." Since he file more than 2 years after the claim arose, end of story. And just in case you were curious (as I was) none of the three judge panel was a NYU Law School grad.

The Ultimate Catch 22

Could not help be caught by the irony expressed in a lawsuit recently filed in Travis county which had this brief description:

Request for judicial review of a chapter of the Texas Occupations Code which prevents anyone convicted of a crime from receiving a locksmith's license. Plaintiff was arrested on drug charges over 7 years ago and argues that this should not prohibit him from earning a living. He points out that, in fact, locksmith skills are often taught as vocational courses in correctional facilities.

Alan Brett O'Daniel v. The Texas Commission on Private Security. GN404143 (12/20/04).



And he thought was better off because he was not learning to make license plates!

Just In Time For Christmas - FedEx MDV Verdict

If nothing else the story at the cnn.com website, FedEx ordered to pay $1.5M in employment case is a stark reminder that being in an employment law jury trial right before the holidays, is probably not a good time from an employer's perspective. This case had a somewhat unusual twist in that the employee who sued, Ted Maines, was allegedly reprimanded for trying to promote two veteran minority employees rather than a recent hire who was white and female. The jury awarded Maines $201,000 in back pay and $1.37 million in compensatory damages (mental anguish). The limited good news for FedEx, the jury considered but did not award punitive damages.



According to the EEOC's press release at its website, Maines was constructively terminated when a week after he complained about the treatment he viewed as discriminatory he was given the option of either taking a 5 grade demotion or a warning that he could be terminated for any future "mistake." When he said he could not accept either option, according to the EEOC:

Federal Express immediately issued a disciplinary warning letter containing a threat of termination as well as a verbal admonishment stating that the vice president wanted him to know that the very next mistake he makes would be his last as a Federal Express employee. Thereafter, Maines was subjected to intense scrutiny, including electronic monitoring. He believed that his phones were monitored and his work was subjected to a heightened level of review. As a result of his being targeted by Federal Express for retaliatory conduct, the terms and conditions of Maines' employment became so intolerable that he was forced to resign (constructive discharge).

A good reminder that lethal lawsuits can come in unanticipated packages.

Planning For A Better 2005? Think About Your Incentive Programs

Because they may not be carrying the kick you had hoped for. At least that is the overall conclusion of the article, Incentive programs fall short with employees, survey finds at HR News. One sobering statistic, "55 percent of employees are unhappy with their company?s incentive programs." Part of the problem seems to be a lack of information (what a novel thought!) since employees who got weekly information about the progress of an incentive program were twice as likely to say they were content with the program as opposed to employees who heard about it only at the kickoff.



There are all kinds of issues related to incentive programs, from employees beginning to think of them as part of their regular (hence 'guaranteed') income to financial goals not being hit because of macro-economic issues that are really outside the control of the individuals. Maybe something to think about as you start considering all the things you will do better in 2005.