Women’s Track Coach Alleges Discrimination

By Peter Levine posted in Discrimination, Employment Law on September 17th, 2013

Suspended for a Prior Relationship

Former Texas women’s track and field coach Bev Kearney, who alleged discrimination based on gender, race and retaliation in an official charge last spring, has not yet filed a lawsuit against the university but likely will within the next month. Coach Kearney won six national titles in track at UT.

Kearney was suspended when school officials discovered she had had a relationship with a student some ten years prior. Kearney alleges she was disciplined for an offense for which other coaches have not suffered similar discipline. Kearney resigned after she claims she was told by school officials they were prepared to fire her.

Case Depends on Similar Offenses

Her case will depend on the extent to which she can show other coaches or other staff members committed the same or similar offense and were then treated more leniently.

The employee must show 1) the comparator is truly comparable, and 2) the offense is the same or similar. And, her case has another twist. The fact she resigned adds another twist. The law recognizes that some situations are so intolerable that a person feels they must quit, but, the situation must be so bad that a person’s health is at stake, or the treatment is so degrading. Under Title VII, a person is not entitled to any remedies if s/he voluntarily quits.

There will surely be an issue regarding the extent to which her termination was truly imminent or likely.

After six months, an employee can ask the EEOC for permission to file suit. The 180-day anniversary of Kearney’s initial complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission has now passed. In that document, she said she was “subjected to a severely hostile work environment” and former coach intends to sue soon.

UT officials have said they disagree with the allegations in her claim of discrimination, but said they would review them “thoroughly.”

Construction Workers to Receive Unpaid Wages After 6 Years

By Peter Levine posted in Employment Law on September 16th, 2013

Workers Were Not Paid Pevailing Wages

2,051 construction workers, who were employed by Hensel Phelps Construction Company and 172 subcontractors, will now finally receive the wages they are owed for working on the 1,190-room Hilton San Diego Bayfront Hotel from 2006 to 2008.

California Labor Commissioner Julie A. Su announced that $8,072,273 in unpaid prevailing wages has been collected on behalf of the workers in the Commission’s latest sweep to hold contractors and subcontractors accountable for labor law violations in California.

The workers were responsible for almost every aspect of the project; including a wide variety of tasks ranging from foundation drilling to concrete pouring to erection of steel, and even landscaping. Christine Baker, director of the state’s Department of Industrial Relations, determined that the project was a public work because it was paid for out of public funds due to a $46.5 million rent credit provided by the Port of San Diego, which leased the land to the hotel owner.

The San Diego Superior Court issued a writ of mandate reversing the determination of Baker and finding the project was not a public work. The California Court of Appeal for the Fourth Appellate District reversed the trial court and affirmed Baker’s decision.

“This office will vigorously enforce prevailing wage law to collect all of the wages owed to workers,” said Labor Commissioner Julie A. Su. “Prevailing wage laws help ensure that public dollars are used to fund quality construction and good jobs that can support families in California.”

Unpaid wages exceed $8 million

A third party administrator will be paid by Hensel Phelps Construction Company to handle claims for the $8,072,273 owed to the workers. In addition, Hansel will help defray the investigation costs by paying an additional $400,000 to the Labor Commissioner.

The Labor Commissioner’s office reported that last year, more wages and penalties were assessed on public works jobs than any year since 2002.

If you feel your employer has not complied with prevailing wage laws, or has withheld wages from you, it’s important that you look into your legal options with a lawyer who can help.

Overtime Wages: Personal Assistant To A Pop Star

By Peter Levine posted in Employment Law, Unpaid Overtime on September 13th, 2013

Available throughout each hour of the day

A onetime roommate and friend of Lady Gaga (listed in the litigation under her birth name – Stefani Germanotta) is claiming that she was cheated out of her overtime wages after serving as the pop star’s personal assistant for more than a year.

The judge, U.S. District Judge Paul Gardephe said both sides agree she was expected to be available as needed throughout each hour of each day. Gardephe ruled that Jennifer O’Neill’s “on-call” time potentially qualifies for overtime compensation.

Gardephe noted that lawyers said Lady Gaga and O’Neill frequently slept in the same bed while on tour because O’Neill was required to address Lady Gaga’s needs throughout the night, and thus never had her own hotel room.

“Every day is a work day for her, so every day is a work day for the rest of us,” she said. “There is no, ‘We’re going to stay in, we’re going to sleep.’ There is no, ‘Let’s put on sweatpants and go out to the movies and be girlfriends.’ It doesn’t work like that,” O’Neill said.

“You don’t get a schedule”

In her deposition testimony, Lady Gaga had testified: “You don’t get a schedule. You don’t get a schedule that is like you punch in and you can play … at your desk for four hours and then you punch out at the end of the day. This is when I need you, you’re available.”

O’Neill testified she was responsible for sometimes monitoring the singer’s email and telephone communications and for handling all her luggage – generally 20 bags – including clothing, accessories, makeup and toiletries. She was also responsible for making sure that “special food” was available at every location and for Gaga’s schedule.

She said she assisted with costume changes during performances and was responsible afterwards for arranging ice packs, tea and a shower, along with dinner and an exit from the venue.

The judge noted that the women met after Lady Gaga moved into O’Neill’s apartment building on the Lower East Side of Manhattan before 2008, when they became roommates and friends. O’Neill was offered a position as her personal assistant because they were friends and she had experience in the music industry, court papers said.

As with all cases, it will be up to a jury to decide whether Gaga’s demands left Jennifer O’Neill any personal time or whether she was on call 24 hours a day, seven days a week, as she is claiming.

Breastfeeding in the Workplace

By Peter Levine posted in Employment Law, Law on September 12th, 2013

Health professionals and public health officials promote breastfeeding to improve infant health. Breast milk contains antibodies that protect infants from bacteria and viruses. Breastfed children have fewer ear, respiratory and urinary tract infections and have diarrhea less often. Breastfeeding also provides long-term preventative effects for the mother, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer and osteoporosis.

Fair Labor Standards Act (FLSA) requires breaks for mothers

It’s important for both employers and employees to be aware that the Fair Labor Standards Act (FLSA) requires breaks for mothers to express breast milk during the workday. Breastfeeding requires supportive environments, including workplaces.

A provision of the FLSA requires employers to provide a reasonable amount of break time, as well as a private and clean space to express milk as frequently as needed and wanted by a nursing mother, for up to one year following the birth of the child. Here are some other requirements:

– The space must be shielded from view and free from intrusion by coworkers or the public.
– The use of a bathroom is not an acceptable space to provide to nursing mothers expressing milk.
– Nursing employees must have access to this space each time they need to express milk.
– The frequency of breaks needed to express breast milk as well as the duration of each break depends on several factors and may vary.

The Labor Department’s Wage and Hour Division has published an employee rights card that outlines the FLSA’s basic requirements and break laws and also includes a list of resources where additional information can be found. It also includes a QR code that can be scanned with a smartphone and shares how to file a complaint with the division in case a woman feels her rights have been violated.

This year the Labor Department is celebrating the 75th anniversary of the Fair Labor Standards Act. The FLSA was passed in an effort to end oppressive child labor as well as establish minimum labor standards regarding workers’ “wages and hours.” The “nursing mothers” provision is just one way the FLSA has evolved over the decades to protect and strengthen an ever-changing and growing workforce.

Facebook Post Leads to Workplace Suspension

By Peter Levine posted in Employment Law on September 11th, 2013

According to multiple reports Tori Christina Jenkins, a black waitress at a Red Lobster in Franklin, Tenn., was allegedly left a racist message via a receipt after serving two customers. Rather than leaving a gratuity the customer apparently wrote, “None n**ger” in the tip section. Jenkins posted a screen shot of the receipt on Facebook and was then suspended by her employer.

According to her Facebook page, Jenkins has worked at Red Lobster in Franklin since December 2012. Both Jenkins and her father posted the screen shot of the message to Facebook. Her father noted that he hopes it will make people more aware “[t]hat we still have much ignorance to overcome.” Since posting the receipt Jenkins has received an out-pouring of support.

Suspension was company’s “standard procedure”

Red Lobster spokesman Mike Bernstein, citing the company’s “standard procedures,” said in an email that the company has temporarily suspended Jenkins with pay as a result of the incident. In this case the violation is for publicly posting a receipt. But Bernstein emphasized that Jenkins has not missed a single day of work because of her suspension and is still scheduled to work this week as usual.

Bernstein added that Red Lobster is “extremely disturbed” by the situation and is currently investigating to determine exactly what happened.

“We take this extremely seriously,” he wrote. “This kind of language is completely disgusting and has no place in our restaurant or anywhere else, and we are committed to getting to the bottom of what happened as quickly as possible.”

Jenkins has since pulled down the photo of the offensive receipt.

San Francisco Giants Pay Thousands in Back Wages

By Peter Levine posted in Employment Law, Unpaid Overtime on September 10th, 2013

Violations of the Fair Labor Standards Act

Major League Baseball’s San Francisco Giants have paid nearly $545,000 in back wages and damages to 74 clubhouse and administrative employees for violations of minimum wage, overtime and record-keeping laws after the Department of Labor investigated the team’s practices regarding pay for their clubhouse and administrative workers.

The investigation from the Wage and Hour Division found that, over three-year time period, the team violated the Fair Labor Standards Act’s minimum wage, overtime, and record-keeping laws.

The employment agreement for clubhouse workers stipulated that they would make $55 for working 5.5 hours a day. According to the investigation they were actually working 12 to 15 hours.

It was found that the club also improperly classified some employees in a way that enabled them to avoid paying overtime. And they failed to pay overtime, or paid too little overtime to some administrative staffer.

“I am encouraged that the Giants acted to resolve this issue, but it was disappointing to learn that clubhouse workers providing services to high-paid sports stars weren’t making enough to meet the basic requirements of minimum-wage law,” Susana Blanco, the director of the San Francisco District Office of Labor’s Wage and Hour Division, said in a statement.

“The San Francisco Giants worked cooperatively with the Department of Labor in conducting a comprehensive review of our payroll records to identify and address any possible issues of concern,” said Staci Slaughter, a spokeswoman for the Giants. “The matter was resolved and reported on several months ago.”

The Giants entered into an agreement with the DOL to ensure future compliance with the law. The DOL will also work with Major League Baseball to ensure that all other teams are complying with these laws.

This settlement comes at a prominent time for wage theft issues. Claims of wage theft have increased 400 percent since 2000. More than two-thirds of low-income workers have experienced wage theft violations according to a 2009 report.

Wrongfully Terminated Bus Driver Reinstated by the NLRB

By Peter Levine posted in Employment Law on September 9th, 2013

Still waiting for his back pay

A year ago, the National Labor Relations Board (NLRB) ordered Latino Express to reinstate driver Pedro Salgado with back pay and benefits after he was fired for trying to organize drivers at the Chicago-based bus company.

Salgado, who was unemployed for about a year, was reinstated as a driver at $14 an hour. But he’s still waiting for his back pay.

His case is among the more than 100 in which the NLRB ruled in favor of workers and unions but which remain in limbo as a result of company challenges of the NLRB’s authority.

The issue stems from an appellate court ruling that presidential appointments to the NLRB in 2012 were unconstitutional due to the fact they were made during a short Senate recess. In June, the U.S. Supreme Court agreed to review the lower court’s decision at the request of the Obama administration.
In the interim, companies have seized on the appellate court’s decision, stalling other apparent worker victories.

“There are forces in this country that don’t like the labor law and what it stands for but they know that it would be unpopular to attack workers’ rights directly, so instead of attacking workers’ rights directly, they attack the agency that protects workers’ rights, but the effect is the same, it hurts working people,” said Lynn Rhinehart, general counsel for the AFL-CIO.

Some Republicans have characterized the labor board under President Barack Obama as a rogue agency that has tried to obtain and hold onto power by issuing rules rather than just hearing disputes between labor and management.

The board has been led by Democrats since 2010, with no Republicans since December as the appointment process stalled amid a stalemate between the Obama administration and Congress. Last week, the Senate confirmed five members of the NLRB, including two Republicans. With these two new Republican members, the board will at least consider a business agenda, said Steve Bernstein, a labor attorney who represents management.

“For the first time in quite a while, you’ll have the prospect for real dissent,” Bernstein told Bloomberg News. “Dissents are very valuable for the courts on appeal, because they have an opportunity to perhaps gauge both sides of an issue more effectively.”

Unfortunately, experts expect the NLRB to only deal with cases going forward and not to revisit cases that are pending before the courts.

“Justice is not denied, but delayed, and that’s not acceptable,” said Leah Fried, a spokeswoman with the United Electrical, Radio and Machine Workers of America union.

Barista Fired for Eating Out of the Garbage: Wrongful Termination?

By Peter Levine posted in Employment Law, Law on September 6th, 2013

Starbuck’s policy claims it’s for health reasons

A Starbucks barista claims he was recently fired for eating one of the cafe’s famous breakfast sandwiches — out of the garbage.

Coulson Loptmann, 21, says his manager told him eating something from the trash is “considered stealing,” according to a report in Seattle-based alternative weekly The Stranger. Loptmann explained, however, the sandwich was expired and had already been marked out.

“It sounds ridiculous, but having bread and mustard and mayonnaise and some kind of meat and lettuce—it doesn’t sound expensive, but that adds up. … There were some days where I lived off of Starbucks food,” said Loptmann, who used to get a 30 percent discount and a few free coffees a day from Starbucks.

On the day he took the sandwich from the garbage, Loptmann said: “I hadn’t eaten all day and I was on a seven-hour shift.”

He didn’t think anyone at the company would have a problem with it but he was wrong.

A week later, his manager sat him down and told him she had found out about him taking the sandwich from the garbage and took the matter to human resources. He was then told: “they consider it stealing, and it’s against policy. So I’m sorry, but I have to terminate you.” Loptmann was fired on the spot.

Loptmann reports he made $9.94 an hour for 23 to 32 hours a week and brought in another $30 in tips — at most $348 before taxes and that he had asked for more hours, but did not receive them. He survives partly on food stamps because his paycheck isn’t always enough for him to buy food.

Eating marked-out food at Starbucks is against company policy — because it’s considered stealing, and for health reasons. “We don’t want our partners to consume something that could make them sick,” Starbucks spokesman Zach Hutson said.

Hutson confirmed Loptmann’s firing and said an employee wouldn’t normally be let go for a single violation of this policy, but Loptmann was let go in light of a history of “documented performance issues,” which he declined to specify.

Fast Food Workers Face A Tough Situation

The situation for fast food workers can be tough with little chance for advancement and 70 percent earn between $7.26 and $10.09 an hour.

“Not only are wages low in these industries, but you compound it with the fact that you’re not even getting full time hours and that contributes to the very high poverty rates that these workers experience,” said Tsedeye Gebreselassie, attorney at the National Employment Law Project. Many of the workers are forced into such government programs as food stamps and subsidized housing.

All this comes on the heels of a worker strike planned across the nation this month.

Internships: Are They A Learning Experience or Just Free Labor?

By Peter Levine posted in Employment Law on September 5th, 2013

Former intern seeks class action lawsuit

A former intern is seeking a class-action lawsuit against Donna Karan International over his unpaid internship at the company in 2009.

Vallentino Smith claims that he clocked in 16 hours a week without pay when he was an undergraduate student working at the company’s Seventh Avenue headquarters.

Smith’s lawyer, Lloyd Ambinder, said his client, like a lot of undergraduates trying to build up their resumes, went for an internship in a glamorous industry where jobs are harder to get. “They took advantage of him. You don’t see this in waste management or funeral homes.”

According to the Fair Labor Standards Act, an internship must meet certain criteria in order to be classified as unpaid without violating the law. One such example is that the internship must be “for the benefit of the intern” and be “similar to training which would be given in an educational environment.”

“Get the coffee…”

“I was told it would be a great learning experience,” Smith said of the 16 hours a week that he logged. However, instead of learning about marketing, he said all he did was get coffee and organize fashion closets.

Smith who now has a master’s degree from Long Island University, is seeking retroactive pay for the hours he worked (at a minimum wage rate of $7.15 per hour) and would like his case to be classified as a class-action lawsuit so he can represent at least 100 other unpaid Donna Karan interns. Ambinder said Karan took on at least two-dozen unpaid interns during the same spring semester that Smith worked there.

Smith’s accusations are the latest in a group of unpaid internship lawsuits questioning companies that take on unpaid interns. Legal experts have predicted that the trend in these unpaid internship lawsuits is likely to spread and that employers across industries should “take note.”

First Experience with Sexual Harassment

By Peter Levine posted in Law, Sexual Harassment on September 4th, 2013

Heather Huhman was just 15 when she first experienced and reported harassment from a co-worker.

Though the co-worker was ultimately fired, she endured the conduct for several months after she reported it – waiting for her complaint to go up the chain of command.

Though many Americans are victims of sexual harassment in the workplace, many don’t report it for fear of retaliation or worries their co-workers will make them feel ashamed.

Thirteen percent of respondents to a recent HuffPost/YouGov poll reported having been sexually harassed by a boss or another superior. Nineteen percent have been harassed by a co-worker other than a boss or superior. A full 70 percent said they never reported it.

Indeed, while the Equal Employment Opportunity Commission received about 7,500 charges of workplace sexual harassment in 2012 — the actual number of people who have experienced sexual harassment at work is probably much higher, according to Fatima Goss Graves from the National Women’s Law Center.

“It’s a tough situation. You don’t necessarily want to take on the hassle, expense and personal costs that are involved,” Graves said.

Harassment Often Goes Unreported

Victims often don’t report the harassment, Graves said, out of concern that they’ll be made to feel they’re somehow to blame for any unwelcome advances and because the various routes to complain are hard to navigate. In addition, fear of retaliation is a “legitimate” concern.

The HuffPost poll found that one in five women said they’d been harassed by a boss, and one in four said they had been harassed by another coworker. Although less likely, men also reported being sexually harassed — 6 percent said they were harassed by a boss and 14 percent by a coworker.

In addition, 21 percent of respondents to the poll said that they had witnessed someone else being sexually harassed at work. But among those who had, only 33 percent said that they had reported it.

Though many companies have education programs aimed at preventing sexual harassment and policies in place to deal with it after the fact, there’s still a long way to go before the behavior is truly viewed as unacceptable by all workers on the ground.

Let's Get Started
Schedule a Free Consultation

10+1 =

I have read and understand the disclaimer

Call Us (323) 934-1234

Office Location
Follow Phillips Lerner, A Law Corporation on Twitter Connect with Phillips Lerner, A Law Corporation on Facebook. Linked In Profile for Phillips Lerner, A Law Corporation YouTube
We provide legal services & no cost consultations to individuals in the following languages, Spanish, Chinese, Vietnamese