Tuesday, March 24, 2015

Employee Disabled by Association Will Get Her Day in Court

Elizabeth Manon used to work for 878 Education, a private college in New York. She is the mother to a child with Reactive Airway Disease, which is an early form of asthma. While Ms. Manon worked for 878 Education, she left work early 54 times, arrived at work late 27 times, and was absent from work 17 times; all because she needed to care for her daughter. The employer stated that she also had performance issues; Ms. Manon claimed that she never was apprised of any performance issues. There was no written documentation.

Ultimately, Ms. Manon was fired after missing another day of work to care for her daughter. The supervisor told her, “I need someone who does not have kids who can be at the front desk at all times.” In the statement that may have hooked the employer’s liability, he said: ”How can you guarantee me that two weeks from now your daughter is not going to be sick again?...So, what is it, your job or your daughter?”

The Americans with Disabilities Act protects employees from discrimination based on a relationship with a disabled person. The purpose of this protection, according to the EEOC, is to “prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with individuals with disabilities.” 878 Education sought to dismiss the case, arguing that it had non-discriminatory reasons for terminating Ms. Manon. However, the statements made by the supervisor connected the decision to fire with Ms. Manon’s association with her sick child.  

Uber and Lyft Drivers: Employees or Independent Contractors?

Both Uber and Lyft are facing federal court challenges to their decision to classify their drivers as independent contractors rather than employees. The challenge is happening via two cases with a different judge on each case; both cases are proceeding in district courts in Northern California.

Drivers for Uber and Lyft argue that they should be treated as employees giving them legal right to certain employment benefits such as minimum wage, reimbursement for expenses, overtime, workers’ compensation, unemployment, etc. As these companies represent a more modern way of doing business, the decisions in these cases could have a national impact on the future of the on-demand business model.

The judges both decided that sufficient facts were presented to send the case to juries because the companies could not prove that the drivers were independent contractors as a matter of law. The drivers point to the companies’ power over them, including the ability to fire them at any time. The primary consideration for the jury will be the extent of Uber’s and Lyft’s control over the means and manner in which the drivers work. It seems that the judges found factors to support both classifications, with a little bit more likelihood that they could be employees. One judge wrote “Lyft drivers don’t seem much like employees…[b]ut Lyft drivers don’t seem much like independent contractors either.”

Thursday, March 19, 2015

"Color” Discrimination Distinguished

Color bias is its own distinct cause of action, separate from race discrimination. The Fifth Circuit Court of Appeals recently addressed that distinction in a case of first impression.

Esma Etienne worked as a waitress and bartender at Spanish Lake Truck & Casino in Louisiana. She consistently received great performance reviews. However, she was passed over for promotion to a managerial position in favor of a white waitress that she trained. Ms. Etienne filed a lawsuit alleging discrimination based on race and color. She is a dark skinned black woman. In support of her claim, she submitted a declaration from a former manager. This manager claimed that Spanish Lake’s general manager said on several occasions that he would not let a “dark skinned black person handle any money” and that the general manager considered Ms. Etienne “too black” to be responsible for certain tasks.

The lower court granted summary judgment to Spanish Lake because many of its managers were black. However, the Fifth Circuit Court of Appeals overruled that summary judgment. In making that decision, the court stated that it had “never recognized ‘color’ as a separate unlawful basis for discrimination by employers” but Title VII clearly identifies color separately from race as protected from discrimination. Ms. Etienne’s excellent performance coupled with her evidence was enough to allow the case to proceed to jury on the issue of “color.”

Wednesday, March 18, 2015

American Apparel CEO Reportedly After Old Job

Slate has reported that ousted American Apparel CEO Dov Charney is not letting go of his old job easily. Mr. Charney was fired in 2014 for “misconduct.”

Mr. Charney allegedly gathered 300 of the company’s former and current workers with the intent to stir up a revolt. He held a secret meeting to get their support to reinstate him to his old position. Mr. Charney claimed that the board had turned against him but needed his help to run the business. Just a few days after the meeting, two American Apparel employees filed complaints with the National Labor Relations Board. The complaints claim that American Apparel intimidated their workers and banned them from talking to the press. Specifically, one worker claimed to be accosted by a security guard following a meeting of employees discussing concerns over their hours. It is alleged that the security guard demanded to know how the employee was involved and to share any papers given out. The other complaint pertains to a January 25 new media policy that banned employees from discussions with the press.

American Apparel intends to investigate the NLRB complaints and has said it is “dedicated to a culture of free speech and social commentary.”

Tuesday, March 17, 2015

Company Liable to Customer for Employee Social Media Rant

A customer sued Hertz Rent A Car after one of its employees insulted the customer on Facebook.

The employee was Shawn Akina. He posted the following about customer Maurice Howard: “I seen Maurice’s bougie ass walking Kahului beach road…n*** please!” After seeing the post, several other Hertz employees joined in on the insulting banter. In one part of the exchange, Mr. Akina stated, “It’s too bad his CC declines all the time.” Not surprisingly, Mr. Howard did not appreciate the negative comments made about him so he filed suit against Hertz for negligent hiring and supervision.

Mr. Howard was able to establish that Hertz had a duty to make sure employees acted appropriately within the scope of their employment. Employees making fun of customers on public social media fell within the parameters of Hertz’ duty. Hertz tried to defend itself by arguing the Facebook posts were not foreseeable. It lost the argument because Mr. Akina had posted negative comments about other Hertz customers before. Hertz was under an obligation to rectify the problem by disciplining Mr. Akina or taking other steps to stop him.