Archive for the 'Employment' Category

Virginia Legislatures Block Judicial Appointment of Gay Prosecutor

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In a move which I’m sure their children will look back upon with great pride, Virginia lawmakers have blocked the appointment of a well-regarded prosecutor to the state’s bench.

Tracy Thorne-Begland serves as Chief Deputy Commonwealth Attorney in Richmond, and is a former Navy fighter pilot. By all accounts his professional record is impeccable, and his supervising attorney stated that he would have made an “outstanding judge.” Nonetheless, the state legislature voted 33-31 to block his appointment, and all of the votes against him came from Republicans.

So, why did state lawmakers choose to deny a judicial appointment to an extremely well-qualified attorney with an incredibly impressive professional record? Because hes gay.

Most of the people who voted against him didn’t even bother with a pretext. They claimed that the fact that he is gay and the fact that he is an advocate for gay rights causes meant that he couldn’t be an impartial judge.

This argument is, to be frank, completely absurd.

The notion that a person could not be an impartial judge because they served as activists in the past makes absolutely no sense. After all, every judge in the world is a person, and every person has opinions on a wide range of issues. You probably wouldn’t have heard anyone complaining if this judicial candidate had previously advocated for, say, environmental causes, or equal rights for African-Americans (or any other racial group). Nobody would speculate that such a record of advocacy would lead to someone pressing an “activist agenda” from the bench.

While this individual case is certainly unfortunate, and I imagine that the state will, sooner or later, see it for the embarrassment that it is; I think in some ways it’s a sign that the anti-gay rights movement is in its death throes. This reeks of a group of anti-gay forces becoming increasingly isolated and in the minority, and are simply lashing out at progress for LGBT individuals in the only way they know how: keeping them out of public life to the greatest extent possible.

However, recent polls show that public acceptance of LGBT rights, including same-sex marriage, is steadily increasing. Even in relatively conservative states like Virginia, the public probably won’t stand for this type of conduct for much longer.

Unfortunately, however, it appears that Mr. Thorne-Begland has little to no legal recourse. Generally, when it comes to voting to confirm judicial and other appointments, Congress, as well as state legislatures, are free to vote for or against a particular candidate, for any reason they like, and they are under no legal obligation to justify their voting choice (the political consequences of these votes are another issue entirely, however).

Furthermore, no federal law bans discrimination in employment based on sexual orientation, and while many states in the U.S. do ban such discrimination, Virginia does not appear to be one of them, and given the recent actions of its legislature, it’s doubtful that such a law is likely to be enacted in Virginia anytime soon. And I think that’s a shame.

In this relatively conservative state, Thorne-Begland has amassed quite a few supporters, with the likes of the governor and high-ranking judges calling the vote things like “embarrassing” and “disgraceful.” I tend to agree with them.

So, what can be done about this? Unfortunately, not much, at least in the short term. As discussed above, there is no legal recourse. And despite the fact that I think the lawmakers in this story did the wrong thing, and, frankly, should be ashamed of themselves, I think that the current method of appointing federal (and most state) judges, which involves an appointment by the chief executive (the president or governor), and confirmation by a majority of one or both houses of the relevant legislative body (Congress or the state legislature) is a good way to select judges.

Traditionally, the United States is seen as having three branches of government: the legislative, the executive, and the judicial. While the executive and legislative branches (the President and Congress, respectively) are both more or less directly elected, the judiciary is not. Typically, judges are appointed by elected officials, and usually serve for life (or until retirement or removal by impeachment or other legal procedure).

This means that we have judges who are more or less insulated from the political process: to keep their jobs, they don’t have to campaign. In fact, they don’t even need to be popular. I think this is exactly how it should be: judges should be as free as possible to answer hard legal questions according to their good-faith interpretations of what the law and constitution require, and they should be as insulated as possible from the ever-shifting whims of public opinion and politics. In general, having major constitutional issues resolved by “unelected judges” (a term only used when a judge rules in a way the speaker doesn’t like) has served us pretty well.

It does come at an unfortunate cost, however: legislatures can decline to confirm highly-qualified judicial appointees for terrible reasons.

However, everything we value as a society comes at a cost: not living in a police state comes at the cost of a slightly higher risk of being a victim of a crime, and protecting our rights to privacy and due process entails a slightly higher risk that people guilty of crimes will escape.

Likewise, ensuring that we have an independent judiciary that is as free as possible from judicial pressure means that judges will sometimes be appointed by people desperately clinging to an old set of views, out of step with an ever-growing segment of mainstream society.

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Producers of “The Bachelor” Sued For Racial Discrimination

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With very few exceptions, I’m not a fan of “reality” TV. But for some reason, it seems that it’s impossible to follow the news without seeing a story about a reality TV show. And now, a big story involving a reality TV show, and its contestants, has infiltrated the tiny journalistic niche of legal news: would-be contestants of the dating TV show “The Bachelor” are suing the producers of the series, alleging that it engaged in racial discrimination.

I don’t know if these allegations are true. However, the fact that there’s enough of a perception of discrimination that some plaintiffs felt that they needed to file a discrimination suit suggests that race is still an issue in all sectors of employment, and we still have a long ways to go before we’re a truly colorblind society.

The lawsuit claims that prospective “bachelors” and “bachelorettes” who applied to be on the show were systematically discriminated against based on the fact that they were not white. The lawsuit claims that there have been 23 seasons of the show over 10 years, without a single person of color filling either role.

While this may seem like a relatively straightforward employment discrimination lawsuit; but the facts that it involves a popular TV show, and the qualifications for the job of “bachelor” are so subjective, there are some interesting wrinkles.

It appears this isn’t technically a suit under employment law, because the relationship between “bachelors” and the TV network they work for does not appear to be a regular employer/employee relationship, because the term of work is very limited, and the bachelor/bachelorettes don’t appear to be paid a salary. The relationship is more like that of an independent contractor.

And because of that, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, and which serves as the basis for most employment lawsuits, probably doesn’t apply.

Instead, the lawsuit is being brought under the equally-important, but less well-known, Civil Rights Act of 1866. This law was passed shortly after the Civil War, and it was originally intended to ensure that African-Americans have the same right to enter into contracts as whites, in part by requiring courts to treat contracts with African-Americans as parties exactly as they would treat any other contract.

In recent decades, the Supreme Court has significantly expanded its interpretation of this law, holding that it also prohibits private parties from refusing to contract with people based on their race.

The lawsuit also alleges that the defendants’ alleged conduct also violates California’s civil rights laws, which generally go further than federal law, providing for stronger punishments for racial discrimination, and more expansive remedies to the victims of discrimination. In addition, California law bans discrimination based on additional categories that aren’t covered under federal law, such as sexual orientation and gender identity.

With all this said, if the plaintiffs hope to obtain relief under either federal or state law, they will have to actually prove that they were discriminated against based on their race. This will be no easy task. Proving that an employer, or anyone else, intentionally engaged in racial discrimination is pretty difficult.

And in this case, the “job” qualifications for the position of “bachelor” and “bachelorette” seems incredibly subjective. It appears that the defendants would be able to come up with virtually any qualification, and plausibly link it to the job. All they might need to do, in that case, is come up with a qualification that all of the people who became “bachelors” have, which is not shared by many of the plaintiffs. Of course, they’d also have to show that this is not a pretext for racial discrimination, which would be difficult.

The defendants might argue that advertisers and viewers prefer to see white bachelors and bachelorettes starring in these shows. Many anti-discrimination laws have exceptions for “bona fide occupational qualifications.” For example, a job as a model for men’s clothing can only reasonably be done by a man. So, a woman would not be able to sue for sex discrimination if she was not hired as a model of men’s clothing because of her gender. Likewise, this rule can also allow for religious organizations to refuse to hire some employees (if the job is religious in nature) based on their religion.

However, no court in the U.S. has ever held that there is a bona fide occupational qualification for race. While they have left open that a situation could conceivably arise. However, they have repeatedly held that customer preference for a particular race is not sufficient for this exception to apply. So, even if the defendants could show that viewers and advertisers prefer to see white people starring in these shows, a court would probably not find that the bona fide occupational qualification rule applies.

While I don’t know how this case will turn out, and whether or not the producers of these TV shows deliberately engaged in discrimination, the fact that, in 23 seasons, no bachelor or bachelorette of color has ever been featured on either of these shows does not bode well for the defendants. That, by itself, is not enough to conclusively prove that deliberate discrimination took place, but it is certainly a very strong piece of supporting evidence.

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California Supreme Court: Managers Do Not Need to Ensure That Employees Take Breaks

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California has a long history of liberal and progressive politics, particularly when it comes to protecting the rights of employees. And while the state legislature has passed a wide range of laws meant to protect employees, the California Supreme Court has also played a significant role in the development of many employee-friendly policies that California employees often take for granted.

So, a recent ruling from the state’s high court comes as something of a surprise, whether you agree with the ruling or not. The Court held that California employment law does not require employers to make sure that employees actually take the breaks to which they are legally entitled.

It’s important to note that the right of all employees in California to take at least a 30-minute meal break during a standard shift, and their right to two 10-minute breaks for every four hours worked, has not been affected. If an employer were to try and stop an employee from taking their legally-mandated breaks, there would be trouble.

What the state Supreme Court did here was resolve a question that, until now, created some uncertainty for employers. The law was not clear on whether or not employers had to actually order their employees to take the breaks to which they are entitled.

In its ruling, the court essentially says that, while employers are required to offer a minimum amount of break time to their employees, the law cannot dictate what the employees actually do with that time, and if they choose to spend it working, that is their right.

I’m of two minds about this decision. On one hand, I think it leaves the door wide open for abuse, especially of employees who don’t know much about their rights under California employment law. An employer could simply “forget” to inform his or her employees that they’re entitled to breaks, and if they eventually get sued for failing to offer their employees break time, they could simply claim that the employees chose to work through their breaks. And in many cases, it would be difficult to prove otherwise.

Groups that advocate for strong protections for workers are understandably concerned that this ruling could turn into an easily-exploitable loophole in California’s worker protection laws, which are otherwise some of the strongest in the country.

On the other hand, I recognize that it would be impractical for the law to micromanage the behavior of employees on their breaks, and while the law should protect employees, ensuring that they are paid at least a minimum wage, that they have a reasonably safe work environment, and that they have breaks to ensure that they don’t become overly fatigued on the job. All of these protections tend to be good for both employees and employers in the long run. The benefits for the employees are obvious. But for the employers, having healthy employees who aren’t fatigued because they’ve been working non-stop for 10 hours can actually save them money, mostly by reducing the rate at which accidents occur, thereby reducing workers’ compensation expenses.

However, the law cannot accomplish these goals by micromanaging every little detail of how employers implement them. Doing so would be expensive, impractical, and would probably bury employers and employees in unnecessary bureaucracy.

So, how do I feel about the California Supreme Court’s ruling in this case? Honestly, I doubt it will change much for the vast majority of employees. The fact is, the majority of employers in California make a good-faith effort to comply with federal and state employment law, and probably took steps to ensure that their workers took the breaks to which they are legally-entitled.

And it’s important to note that if this ruling has a significant negative impact, with abuses taking place at a much higher rate than expected, the state legislature can always update the law to overrule the Supreme Court on this issue.

After all, in this case, the court was simply interpreting the law passed by the state legislature. If this ruling has unintended effects, or the legislature believes that the court made the wrong decision, they can simply change the law to make it clear that employers are, in fact, required to ensure that their employees actually take their breaks.

However, I doubt that this will prove necessary.

As I said, I think that most employers will not change their practices in response to this ruling.

As long as employers are clear that this ruling does absolutely nothing to compromise the rights of their employees to take breaks, and are certain to inform their employees that they have a right to take breaks, and do not try to stop them from doing so, things should be fine.

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Telling Your Employees to “Look Younger” Is Probably Age Discrimination

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Under U.S. law, and the laws of most states, it is illegal for employers to discriminate against employees on the basis of age. These laws are meant to protect older workers, applying only to workers over the age of 40.

It’s pretty rare these days for employers to deliberately engage in unlawful discrimination. However, there are still employers who implement policies that have a discriminatory effect on some groups. In some cases, this can also be grounds for a discrimination lawsuit.

One interesting case (also seen here) has appeared out of Texas: a woman is suing her former employer because she claims that she was fired after she refused to dye her gray hair a darker color, and wear “younger fancy suits.”

Her argument is that this effectively amounts to age discrimination. And if her allegations are true (and she’s able to prove it), she probably has a good case. In general, employers are allowed to regulate the appearance of their employees: obviously, requiring employees to be presentable on the job is a perfectly reasonable policy. Likewise, if the employer requires employees to wear some kind of uniform, that’s generally fine, and does not run afoul of any discrimination laws.

However, there are times when requirements related to appearance can have a disproportionate effect on certain groups of people, and may unduly exclude them from their jobs. For example, suppose a company prohibits its employees from wearing any type of hats on the job. On its face, this rule doesn’t appear to discriminate against anyone. However, some religions (e.g. Sikhism and some denominations of Judaism) require adherents to don certain types of headwear, for religious purposes.

So, such a rule, although it does not appear to target any particular protected class, would have the practical effect of excluding some qualified employees solely because of their religion. This would be grounds for a lawsuit against the employer for religious discrimination, and it’s also why the vast majority of employers that have “no hats” policies also have an exception to the policy for religious headwear.

If the allegations in this case are true, the reasoning for finding that unlawful discrimination has occurred would be similar, though if an employer actually had a policy against gray hair and “old-looking” clothes, the fact that this could result in an age discrimination lawsuit is far more obvious than the example above.

And that’s why I have to wonder what an employer would have to be thinking in order to come to the conclusion that having such a policy is a good idea. After all, it’s plainly obvious how such a rule could disproportionately exclude employees based on their age.

The employee also alleges that, after she was fired, she was replaced by another female employee who was 10 years younger. While none of this is proof-positive that the employer intended to discriminate against older employees, none of it exactly bodes well for them. On top of that, the employer had not given her any warnings about her performance, and it did not contest her application for unemployment benefits. But again, it all depends on whether or not these allegations are actually true.

After all, it’s not exactly unheard of for a disgruntled employee to file a discrimination lawsuit against their employer, simply for the purpose of making the employer’s life more difficult. However, these cases are pretty rare, since an unsuccessful lawsuit might also be very costly and time consuming for the plaintiff.

Age discrimination in employment tends to get far less public attention than race, gender, and religious discrimination. Because of this, cases of age discrimination often fly under the radar.

However, age discrimination remains an issue. And while new college graduates who are strapped for jobs may be a little irked that older employees who don’t want to (or can’t afford to) retire appear to have their positions protected by law, the aims of laws against age discrimination are noble ones, and, in general, I think that they should be vigorously enforced.

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Famous Designer Alexander Wang Faces a Lawsuit Based on Labor Law Violations

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It is no secret that employers often violate labor laws; add to this list (allegedly) top fashion designer Alexander Wang.  Famous casual sportswear fashion designer Alexander Wang is being sued for allegedly providing unsafe working conditions for his employees at his New York Office.

A $50 million dollar civil action suit has been filed in the Queens Supreme Court.  Employees such as FlorDuante are claiming that Wang provided unsafe working conditions, overworked his employees with approximately 90 hour/week shifts, and wrongfully terminated them after the employees had filed a workers compensation complaint against him.

Wang’s corporation claims that they adhere to labor laws, especially laws related to wages, overtime, and safe environment.  Briefly, employment law wants to ensure that employees have safe working conditions, work reasonable hours and do no face discrimination or wrongful termination.  Safe working conditions emphasize employers to provide working environments where chances of work-related injuries are minimal and all the necessary injury-preventative measures are provided to employees.  For instance, making sure that the floors stay clean so that no one can slip, or offering masks or gloves if employees are required to operate heavy and/or dangerous machinery.

Employers are also required to ensure that employees are being paid for all hours worked, and that the hours be reasonable with the employees taking at least two fifteen minute breaks in which they have physically stepped away from their desk.  Additionally, employers must make sure that there is no harassment or discrimination going on in the work place.  Taking preventative measure such as anti-discrimination or anti-harassment workshops, or having company policies explicitly stating a “no tolerance for discrimination or harassment” policy is a very good idea.  Alongside these conditions, employers must also remember that although most places employ at-will, this does not mean that employees can be fired based on acts such as complaining about labor law violations.

In lawsuits such as Wang’s, it is very rare that employers walk away having to pay nothing.  Mostly, employers want to settle such suits to avoid investing time and money in litigation.  Therefore it is likely that Alexander Want will have to pay damages to these employees, and it is likely that the damages amount will be well-negotiated by the attorneys representing both parties.

There are probably ways to avoid such instances.  Many companies are now placing video cameras and time card machines that record employees’ daily routine, movements, and timings.  Of course, such measures are implemented legally by giving employees notice before implementing such procedures.  Such efforts can help employers either defend themselves against lawsuits or force them to abide by labor laws.  Many corporations do in fact implement such measures for these reasons.

However, in the past and even the present, the fashion industry has had a lot of problems due to accusations of labor law violations.  Either companies in the fashion industry should implement such measures as well, or industry heads should look to lawsuits like Wang’s and realize that if they do not conduct their operations legally, adverse consequences will follow.

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