By Joseph S. Murray, IV
The EEOC filed two lawsuits in the past couple of months that show one of two things: (1) massive companies are cruel and heartless, with HR Departments that don’t understand the ADA, or (2) the EEOC, despite its own statements in guidances and regulations, continues to believe that the ADA allows employees to take repeated, unforeseeable intermittent leave.
In August, the EEOC filed a lawsuit against Macy’s, Inc., alleging Macy’s fired an employee with asthma for a one-day absence due to complications arising from her disability. EEOC Sues Macy’s For Disability Discrimination (Aug. 16, 2017). In late September, the EEOC filed a lawsuit against Whole Foods Market Group, Inc. alleging that Whole Foods terminated an employee with polycystic kidney disease after she missed work two times in December 2015, due to hospitalizations related to her kidney disease. Whole Foods Market Sued by EEOC for Disability Discrimination (Sep. 28, 2017). In both cases, the EEOC alleges that the companies violated the ADA by failing to modify their leave and absentee policies as reasonable accommodations to allow the employees to take leave related to their disabilities.
By Sean F. Herrmann
Gamblers aren’t the only ones complaining about pay-outs in North Carolina casinos. According to a class/collective action complaint (Clark v. Harrah’s NC Casino, LLC, 1:17-cv-240) filed on August 31, 2017, in the Western District of North Carolina, Harrah’s NC Casino Company, LLC, has failed to pay employees wages and overtime compensation.
Joseph Clark, the named plaintiff, filed on behalf of himself and other similarly situated employees at Harrah’s Cherokee Valley Rivery Casino & Hotel and Harrah’s Cherokee Casino Resort, both of which are operated by Harrah’s NC Casino Co. The complaint includes both Fair Labor Standards Act and North Carolina Wage and Hour Act claims.
Specifically, the complaint states that “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and other similarly situation gaming floor employees all overtime compensation in violation of the FLSA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It also explains, “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and similarly situated gaming floor employees all promised and earned wages on their regular pay day for all hours worked in violation of the NCWHA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It further alleges violations of the FLSA and NCWHA related to requiring the plaintiff and similarly situated employees to perform work without pay prior to the start of their scheduled shifts.
Clark, in the complaint, asserts that the NCWHA class could be comprised of at least 1,000 individuals. This case is in its infancy, but it’s one to keep an eye on.
By Michael B. Cohen
Under § 213(a)(3) of the Fair Labor Standards Act (FLSA), employees of seasonal “amusement or recreational establishment[s]” are exempt from the statute’s minimum wage and overtime protections. In order to qualify as an exempt establishment pursuant to § 213(a)(3), an amusement or recreational establishment must: (1) not operate for more than seven months in any calendar year; or (2) accrue, during any six months of the preceding calendar year, average receipts of not more than one-third of its average receipts for the remaining six months of such year. Examples of such establishments, according to the legislative history discussing the 1966 FLSA amendment, include “amusement parks, carnivals, circuses, sport events . . . or other similar or related activities . . . .” H.R. Rep. No. 871, 89th Cong., 1st Sess. 35 (1965).
By Michael A. Kornbluth and Joseph E. Hjelt
On June 7, 2017, Judges Traxler, Motz and Agee on the U.S. 4th Circuit Court of Appeals issued a decision which could make employees think twice before they report other individuals’ complaints of sexual harassment in the workplace. The facts of the case, Villa v. CavaMezze Grill, LLC, No. 15-2543, 2017 WL 2453254 (4th Cir. Jun. 7, 2017), are alleged as follows:
In October of 2013, Judy Bonilla, a former employee at Cava Mezze Grill in Merrifield, Va., told Patricia Villa, a low-level manager at Cava Mezze, that the restaurant’s General Manager had offered her a raise in exchange for sex. Villa then approached Rob Gresham, the restaurant chain’s Director of Operations, to report the conversation with Bonilla and convey her suspicions that the same quid pro quo offer had been made to another former employee. Gresham is close friends with the General Manager who was accused of sexual harassment. In investigating Villa’s report, Gresham interviewed Bonilla and the other individual Villa suspected had been offered a raise in exchange for sex. Sergio Valdiva, Area Manager, accompanied Gresham in the interview with Bonilla to serve as a translator. In their interviews with Gresham and Valdiva, both employees denied the allegations and denied having ever said anything to Villa. At the close of the investigation, Gresham fired Villa, telling her that he concluded that she fabricated the story.
By Kevin P. Murphy
According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).
By Joseph S. Murray IV
The regulations implementing Section 1557 of the Affordable Care Act (“ACA”) prohibit covered health insurance providers from discriminating against individuals based on gender identity (which is defined as sex discrimination) and require covered entities to treat individuals in accordance with their gender identity. 42 U.S.C. § 18116 & 45 C.F.R. § 92 et seq. Based on these requirements, covered health benefit plans cannot limit or exclude medical services related to gender dysphoria and gender transition. Employees and their covered dependents can directly sue employers and benefit plans to enforce the Section 1557 non-discrimination provisions.
But what if Section 1557 does not apply to an employee’s health benefit plan? Can employees use association discrimination claims to require their employers’ health benefit plans to cover gender transition surgery and related medical treatments for the employees’ dependents? In a recent case, the 8th Circuit Court of Appeals upheld the dismissal of an employee’s Title VII association discrimination claim since such claims are based on the employee’s own protected status.
By Sabrina Presnell Rockoff
On May 16, 2017, the 4th Circuit issued an opinion in Waag v. Sotera Def. Solutions, Inc., 2017 U.S. App. LEXIS 8587, providing further guidance regarding an employer’s responsibilities to return an employee to work following FMLA leave.
Mr. Waag brought the action against his former employer, Sotera Defense Solutions, Inc., a federal defense contractor, alleging a violation of the Family Medical Leave Act by not restoring him to his position when he returned from a medical leave; by placing him in a job that was not equivalent to the one he held before the leave; and by terminating him from the new job because he took medical leave. The District Court for the Eastern District of Virginia granted summary judgment to the employer. The 4th Circuit affirmed.
By Jonathan Wall
What does a case involving a city council’s refusal to go forward with an economic development loan have to do with employment law? Plenty! In Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 174898 (4th Cir. May 5, 2017), a 4th Circuit panel relied heavily on employment law and again indicated that weighing facts has no place in a Rule 12(b)(6) determination.
By Sean F. Herrmann
Labor & Employment Law
In the Eastern District of North Carolina, U.S. District Judge Terrance W. Boyle recently granted conditional class certification to call center employees in their FLSA dispute against BB&T. In that case, Sheffield v. BB&T et al. (case number 7:16-cv-00332) plaintiff and the conditionally certified class allege that BB&T failed to pay overtime.