Thursday, February 11, 2016

More Woes: Yahoo’s Quarterly Performance Review Challenged in Lawsuit

Gregory Anderson, a former Yahoo editor responsible for Yahoo’s autos, homes, shopping, small business and travel sites was fired in November 2014. He has claimed in a recently filed lawsuit that Yahoo routinely manipulated its quarterly performance reviews to fire employees without cause to help boost profits and in violation of the law.

Under CEO Marisa Mayer, Yahoo instituted a quarterly performance review in which every employee must be rated on a scale of 1 to 5. These reviews have apparently not been popular with employees. According to the lawsuit, managers were forced to give lower rankings to some employees to reach a certain percentage. It is further stated in the suit that higher-level executives arbitrarily changed the ratings without any direct knowledge of the employees’ work. Employees did not have knowledge of the changes or any way in which to challenge the ratings.

Mr. Anderson claimed that he received high ratings and a promotion before taking a leave of absence for a fellowship. Even though his fellowship was approved, he was advised that he was in the bottom 5% of the company’s work force, all of who were being fired. California law requires any employer laying off more than 50 employees within 30 days at a single location to give the workers 60 days' notice. Yahoo has been accused of circumventing its legal obligation to give notice by relying on manipulated performance reviews for the mass firings.

Mr. Anderson has argued that he was fired for reasons unrelated to his performance including complaints about the quarterly review process and for reporting an attempted bribe to change a rating. Additionally, Mr. Anderson has stated that his Yahoo group favored women in hiring, promotions and layoffs thereby subjecting him to gender discrimination.

Wednesday, February 10, 2016

The EEOC Wants Your Compensation Information

The EEOC has announced its intention to submit a big revision to the Federal Office of Management and Budget (OMB) for its Employer Information Report (EEO-1). This revision will require employers with more than 100 employees to submit information about compensation to the EEOC beginning in 2017. The stated purpose of this data gathering is to enhance the EEOC’s ability to target compensation issues and address pay disparities.

Currently, employers with over 100 employees (and federal contractors with more than 50 employees) are required to give the EEOC data on their employees’ race/ethnicity and sex in ten enumerated job categories. With the new proposal, employers would add W-2 earnings and hours worked for all employees by race/ethnicity and gender. Federal contractors and subcontractors with less than 100 employees would not need to submit compensation data. W-2 information would include salary, bonuses, commissions, tips, taxable fringe benefits and other forms of reportable earnings. Compensation will be classified according to twelve pay bands similar to those used by the Bureau of Labor and Statistics.

The EEOC has stated that the new standards will not be burdensome to employers, claiming that the new requirements will cost less that $400 per employer for the first year and even less in subsequent years. Employers should be aware that the pay bands do not take into account seniority, level of responsibility and education. This expanded information will allow the EEOC to compare compensation within a location, across the organization and enterprise-wide as well as the broader industry or metropolitan area. Data should not be released by the EEOC to the public, however it can be used in litigation.

Tuesday, February 9, 2016

$31 Million Dollar Employment Verdict Against Wal-Mart

Former Wal-Mart pharmacist Maureen McPadden won an extremely large verdict against the retail giant. A federal jury in New Hampshire decided the case.

Ms. McPadden claimed that she was fired for bringing up concerns about the safety of how prescriptions were being filled and gender bias. In the final year of her 13-year employment, Ms. McPadden complained that prescriptions were not filled properly at her store because of inadequate staff training. She also took those complaints to an outside authority, the New Hampshire Board of Pharmacy. Shortly after these complaints, Ms. McPadden was fired for allegedly losing her pharmacy key. In her complaint, Ms. McPadden asserted that a male pharmacist at another store also lost his key, but kept his job.

The jury’s award included back pay, lost wages and compensatory damages plus $15 million for punitive damages. Per the jury’s verdict form, most of the award was based on her gender bias claim although it did find for her on the retaliation claim as well. As expected, Wal-Mart has already expressed its intention to petition to the court to set aside or reduce the damage award. The company does not believe that the facts support the decision made by the jury and has denied that Ms. McPadden’s safety complaints played any part in her termination.

Thursday, February 4, 2016

To Guitar Center Employees: Sign Arbitration Agreement Or Else

Guitar Center, a music equipment retailer, told all of its employees that they must sign mandatory arbitration agreements or they were out of a job.

According to the Huffington Post, the arbitration agreement required the employees to forego their right to sue the company in class actions lawsuits over wage violations, workplace discrimination and wrongful termination. Employees were given the agreements in December and had to decide in January whether they want to sign or lose their jobs. Guitar Center sold the new agreements to the employees as “less costly, less formal, friendlier and faster” than using the court system. Employees are assured that the arbitrator will be “fair and impartial” with Guitar Center picking up the tab for the costs.

Concurrently, Guitar Center has been embroiled in a labor dispute with the Retail, Wholesale and Department Store Union. The Union has won elections at three stores in the last couple of years but has yet to enter into a contract with the Guitar Center. The NLRB General Counsel has accused Guitar Center of refusing to engage in good faith and brought proceedings against it. A decision has not yet been issued. The union’s attorney has questioned the legality of requiring employees to sign the agreement. From the NLRB’s perspective, mandatory arbitration agreements illegally infringe on a worker’s right to engage in “protected concerted activity.” The agreement’s language explicitly excluded some claims such as unemployment insurance and workers’ compensation but included “any other violation of federal, state or local law.”

Wednesday, February 3, 2016

Founder of Bikram Yoga Has $6.4 Million Sex Harassment Verdict

Bikram Choudhury, founder of “hot” Bikram yoga, was accused of sexual harassment by his former attorney. Mr. Choudhury’s brand of yoga is known for its series of 26 poses done over 90 minutes in a room heated to 104 degrees.

Minakshi Jafa-Bodden claimed that Mr. Choudhury persuaded her to leave India to come work for him as his general counsel. Once in the United States, Ms. Jafa-Bodden claimed that he repeatedly sexually harassed her and subjected her to obscene comments about women and minority groups. Other women have made claims of sexual harassment and even rape against Mr. Choudhury. When Ms. Jafa-Bodden attempted to investigate the claims, she has alleged that she was fired. He has stated that she was fired because she was not licensed to practice law in the United States.

The jury found that Mr. Choudhury acted with malice, oppression and fraud, which allowed an award of punitive damages. The compensatory award was for $925,000 and the punitive damages award was for $6.4 million. Mr. Choudhury claimed to have diminishing finances, a claim somewhat suspect to the jury in light of his admission that he kept 40 luxury cars including a fleet of Bentleys, Ferraris and Rolls-Royces in an off-site garage. Mr. Choudhury has continued to assert his innocence in response to all allegations of sexual harassment and sexual assault.

Tuesday, February 2, 2016

Lyft To Pay $12 Million To Settle; No Concession On Status

Ride service provider Lyft, along with its competitor Uber, have been facing proposed class-action lawsuits by their drivers. These drivers contend that they should be classified as employees, and not independent contractors. With respect to Lyft, the question of whether its drivers should be employees will remain unanswered.

Instead, Lyft has agreed to pay $12 million to settle the potential class action lawsuit in California. The amount will be split among California’s 100,000 Lyft drivers in proportion to the amount of hours worked. The drivers did achieve some concessions on how they can be terminated that will be applied nationwide. Previously, drivers could be deactivated at anytime for any reason. Per the settlement, a predetermined list of reasons for deactivation such as low passenger rating will now be implemented with drivers receiving a warning before it happens. Drivers will be given a chance to improve their performance. If a driver believes that the reason he or she was deactivated was impermissible, the driver can challenge the decision at Lyft’s expense.

Finally, the agreement also includes a “favorite driver” provision that allows Lyft drivers who are identified as such by passengers to receive more benefits. Also, drivers will receive more information about their potential passengers before they agree to a pick-up.

Thursday, January 28, 2016

Update: FBI Varying Fitness Tests for Men and Women May Not Be Discriminatory

In June 2014, a federal district court ruled that the FBI could not have different standards for men and women taking its physical fitness tests. Jay Bauer had brought suit against the FBI because he could not pass the more rigorous test for men necessary to become a Special Agent. The FBI would only be permitted to have differing standards if there was a bona fide occupational qualification to justify it. By not showing that the tests were sufficiently focused on “job related skills and aptitudes,” the FBI could not use the differing standards for the physical tests.

2016 has brought a new ruling on this case by the Fourth Circuit Court of Appeals. In the new ruling, which relies on two prior decisions that approved the FBI’s use of gender-normed standards, the court of appeals has upheld the idea of differing physical fitness tests. Title VII has been held to permit distinctions based on undeniable physical differences between men and women “where no significantly greater burden of compliance is imposed on either sex.”

The Fourth Circuit Court of Appeals stated that “men and women simply are not physiologically the same for purposes of physical fitness programs.” As a consequence, accommodations that reflect the differing physiological aspects between the sexes are not automatically unlawful. Equivalently fit men and women may demonstrate their fitness differently. The question of whether a fitness test was discriminatory must based on whether it required men and women to demonstrate different levels of fitness. Title VII was not violated if the differing physical fitness tests impose an equal burden of compliance on both sexes.