Archive for the 'Employment' Category

Can You Be Fired for Being “Too Cute?”

It sounds like a plot to a bad TV show, but for one woman in New York City, it was the reason she was fired from her job. Dilek Edwards was a yoga instructor and massage therapist for a chiropractor. Edwards stated that her relationship with her former boss was completely professional. She met his wife, Adams, also the co-owner of his practice, after a year and a half in her position. Her boss mentioned that his wife thinks Edwards is “too cute” for the job.

Over a year later, Adams fired Edwards through text message. In the message, Adams added that Edwards should stay away from her husband and family. It is easy to argue that Edwards was fired due to her attractive appearance. Most people can agree that it is unfair to be fired from your job due to how attractive you are to your boss.

But was it discriminatory? What was Edwards’ claim against her employer for wrongful termination?

“Attractive Females are Not a Protected Class Under Anti-Discrimination Laws.”

Discrimination laws tend to be controlled by the federal government. However, individual states may add state laws, so long as they do not conflict with federal regulation. New York State added protection for groups not protected under the federal law. Under both New York and the federal law, neither has specified protection for individuals due to an attractive appearance. In Edwards’ case, her claim went before the state court. Sexual Harassment

Edwards argued that her claim is based on gender discrimination. She claimed was fired due to her “gender identity, self-image, appearance, behavior or expression.” But the court disagreed. Instead, they found that gender discrimination protection only applies to individuals discriminated due to gender identity or transgender issues. Whether an employer found an employee appealing is not part of gender discrimination.

The court determined that attractive persons are not considered a protected class, so Edwards has no legal claim against her former employer.

Similar cases were brought to state courts across the nation. So far, every outcome has rejected the concept of creating a protected class for attractive persons. If there are some instances of discrimination, why shouldn’t they be protected?

A Class is Protected Due to Inherent and Persistent Disadvantages

The outcome of Edwards’ claim does not sit well with most people. The idea that a person can be fired or discriminated against due to something out of their control seems to be the very backbone of anti-discrimination laws. But at the same time, the idea that being too attractive means you deserve special protection does not sit well with many people.

We live in a world where being attractive is often an advantage. The logic behind anti-discrimination protection is that certain groups of people face regular discrimination due to belonging to that group. It does not seem like attractive people fit the need for class protection.

Also, the protected classes are protected due to an immutable characteristic (except for religion). A person born in a different country cannot change the fact they were born in that country. It’s also not something that can be debated or be something else. A woman born in Australia cannot be interpreted to be born elsewhere. In contrast, attractiveness is mostly subjective and whether one is attractive often differs from person to person. While society may have some sort of standard, it always falls to the perceiver to determine if the other person is attractive.

What will always set attractive persons apart from the protected classes is that it is tends to be a positive quality. Studies show that attractive people are paid more, are considered more persuasive, more trustworthy, and are more likable. While these may seem to be trivial qualities, these are qualities that almost none of the protected classes can share.

So Where Do We Go From Here?

At the moment, the legal system’s definition of gender discrimination is expanding. It has only been recently applied to individuals dealing with gender identity issues or are transsexual. Before, it was applied to heterosexual men or women who faced discriminated due to their gender.

However, for all of the above reasons, it is very unlikely that attractive persons will become a protected class. They faced discrimination due to the insecurities of a small number of people, not because their attraction limits their ability to enjoy and progress through life. Things may change over time, but due to the way society can overly favor an attractive individual, it is unlikely that attractive people can become a protected class.

Judges Judging Judges: Will a Court Rule Magic the Gathering Judges are Employees?

Those who judge duels of spells and monsters have convened in joint purpose—to sue Wizards of the Coast for failing to pay them. Wizards of the Coast (Wizards) is a Hasbro subsidiary who owns the most popular collectible card game in the world—Magic the Gathering.  Magic the Gathering (Magic) has attracted a substantial competitive community and tournaments are held with some regularity.  These Magic tournaments are moderated by judges certified by Wizards, resolving rule disputes and performing other functions.

Recently, several of these judges filed a complaint against Wizards on behalf of themselves and all other judges.  The class action lawsuit alleges that the judges are employees of Wizards and that Wizards has—among other things—failed to pay them for their services.  The lawsuit seeks damages of over $5M.

Judges in Magic the Gathering

In order to become a Magic judge, a person needs to register with Wizards and pass a multiple choice test provided by Wizards. Restore Balance

The requirements of being a judge and maintaining judge status are set by Wizards and vary based on a judge’s level—1 to 5. These duties and requirements include documenting Magic gameplay at events and tournaments, working at least 25hr/month per judge level, and regular testing.  The advancement from level 2 judge to level 3 and beyond requires substantial testing and interviews.  The testing is all handled by Wizards.  Wizards can also unilaterally revoke judge status whenever they feel like it.

Up until recently, judges have been reimbursed for their work—often over 12 hours in a day—with specialized promotional Magic cards available only to judges. These cards can be worth anything from $200-$800.  However, Wizards has discontinued this practice, perhaps out of fear that it makes judges seem more like employees.  Currently, judges do not receive anything for their service and are not provided meal breaks, rest breaks, or expenses for working events.

Volunteer Judges?

Wizards has historically treated judges like volunteers—enthusiastic members of the magic community whose donated time is much appreciated. While this is not explicitly argued in Wizard’s press response to the judge’s lawsuit, it is heavily implied.  The release states that “fans choose to become judges out of a sincere love of the game and as a way to enjoy their favorite hobby. They ensure events are fair and fun, and we appreciate everything they do.”

It’s not surprising that Wizards is only implying that the judges are volunteers, as the assertion doesn’t have a legal leg to stand on. Federal law clearly establishes that for-profit, private sector companies cannot take advantage of volunteer labor.  Wizards, a for-profit subsidiary of one of the largest for-profit toy makers in the world, certainly cannot accept volunteer labor.

Joint Employment

So if the judges can’t be volunteers, the question becomes what are they? The judge’s complaint alleges, that they are employees.  However, Wizards will certainly argue that they either have no relationship or are independent contractors.

In their press response, Wizards argues that the judges’ class action lawsuit is meritless because most judges do not work at tournaments run by Wizards.  In fact, only a very small number of the highest tier Magic tournaments are organized and handled by Wizards itself.  The majority of tournaments are set up by local stores and event organizers.  Unfortunately for Wizards, this doesn’t matter.

Less than a year ago, the National Labor Relations Board issued a ruling that changed the way employment functioned—preventing an employer from avoiding employer obligations by hiring through a labor supply contract or temp agency. This case, Browning Ferris Industries, found that multiple employers can act as joint employers (with all the responsibilities that come with that relationship) where (1) the entities are employers within the meaning of the common law; and (2) the entitles share or codetermine those matters governing the essential terms and conditions of employment.

Wizards controls a great deal about the conditions of a judge’s employment at any tournament—even tournaments run by local stores. They set the rules, they set the tests to determine whether or not you can be a judge in the first place, Wizards often schedules and regulates events.  Much of the time, Wizards even determines the “format” of an event—what kind of tournament will be held.  Wizards has a substantial hand even in tournaments it doesn’t directly run—meeting the second requirement of the Browning test.  All that remains is to determine whether Wizards has an employer-employee relationship with the judges or if these judges are independent contractors.

Independent Contractor v. Employee

Independent contractors make contracts with a business to perform a specific type of work, usually for a limited period of time. Employees work under the direct control of an employer, with the employer controlling the terms, conditions, and tasks of the employee.  Independent contractors are not protected by most employment laws—including minimum wage and overtime laws.  If Wizards could establish that the judges are independent contractors, they’d be off the hook.

The tests to determine whether somebody is an employee or independent contractor vary substantially throughout the country and sometimes have as many as 21 different factors to consider. However, the tests all boil down to the same thing—the level of control the potential employer has over the would-be employee.  The tests look to who decides how, when and where a person does their work.

Taken as a whole, Wizards certainly has a substantial amount of control over the judges. The testing to become a judge, combined with Wizards’ retaining the ability to unilaterally revoke any judge status, represent substantial involvement in judge training and close supervision of individual judges.  Wizards sets all the rules that the judges enforce.  Alongside private vendors, Wizards schedules many—but not all—of the tournaments the judges work at and even assign judges to tournaments sometimes.  All of this supports the judges’ argument that they are unpaid employees and Wizards is their joint employer with the local tournament organizers they work with.

What Will Wizards Do?

Unsurprisingly, the judges seem to have the rules right. Even if there is a colorable case on the part of Wizards that the judges are independent contractors—it certainly isn’t looking good for them.  A jury determination that all the judges are employees would be a costly loss for Wizards and would leave them with a sticky situation in dealing with their judges going forward.  While Wizards has publically stated that they believe the judges’ class action suit to be meritless, it seems likely that a settlement may be forthcoming in order to avoid a court ruling the judges are employees. This would be quickly followed by a serious restructuring of their judge program.

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.

A Prank Too Far: Is Google Liable for the Fallout of an Ill-Conceived Prank?

Google is committed to their pranks, coming up with inventive April Fools jokes every year. Just last year they had twelve different pranks running, from playing Pacman in Google Maps to suggesting the song Sandstorm for nearly every music video on YouTube.  In 2011, Google announced that all their products would default to the Comic Sans font.  They also introduced a Meow Me Now app, which would locate kittens in the user’s vicinity.  This year, Google outdid themselves, and it came back to bite them.

As one of their many 2016 pranks, Google added a “Send + Drop Mic” button to Gmail. The button was an orange affair that read “Send +” then showed an animation of a small hand dropping a microphone.  It replaced the usual “Send and Archive” button and was positioned immediately next to the “Send” button.  When clicked, the button added a gif of a Minion from the movie series Despicable Me dropping a microphone and muted the thread—preventing the user from seeing any further replies. Mic Drop

Even though the button provided a pop-up warning the user what would happen if they sent their email in this manner when you scrolled over it, complaints of issues stemming from the confusingly position of the feature starting rolling in almost immediately after the feature rolled out. A bug in the feature also made the normal send button sometimes function as if the user had clicked the “Send + Drop Mic” button.  Several users reported losing job opportunities, while others complained that the feature had actually cost them their job.

The feature was only up for 12 hours before Google discontinued it and issued an apology for any inconvenience it had created. Google has also stated that they are working to undo the damage by bringing back all replies to “mic dropped” email threads.

Given that it was April Fools’ Day, everything posted on the internet is suspect. There is a real possibility that the users complaining of lost jobs and job opportunities were playing a prank of their own or simply fabricating their stories.  However, the situation raises the question, could Google be liable for the jobs and jobs opportunities lost due to their prank?

Negligent Dropping of Microphones

Negligence is one of the most common civil causes of action. While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty – That the accused had a duty. You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty – The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact But for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages The accuser has suffered some loss as a result of the accused’s negligent act.

Where people have lost their job or a job opportunity, their lost wages certainly represent damages. This just leaves the first four elements to figure out.

So did Google fail to act with the care of a reasonable person in their design and implementation of their “Drop the Mic” feature? This is a fairly fact specific determination, but we can look at what we know.  The design of the feature itself included a bug which made otherwise normal use of Gmail send the “Drop the Mic” version of that email.  In order to show whether Google acted with proper care, we would need to see if they knew about the bug prior to release.  Their apology statement certainly implies that they had no knowledge of the bug.  There could be a situation where the feature was created and released in such a slapdash manner that they should have expected substantial issues with the feature.  However, there is no evidence of this at this point and it seems fairly unlikely from a software company as established as Google.

So if the bug in the feature isn’t a breach of duty, is the implementation of the feature? There is an argument that a reasonable person would not have placed the “Drop Mic” button right next to the “send button” for the very reasons that occurred- users would click on the wrong button.  However, the button was of a bright color and looked substantially different from the normal “Send and Archive” button.

What’s more, the button created a pop-up explaining its function when the cursor scrolled over it. This being said, many users complained that they could only see the pop-up right before they clicked the “Drop the Mic” button.  Google has itself stated that they feel they should have included a confirmation pop-up that required a second click before “dropping the mic.”  The facts here are fairly tenuous, but there is a credible argument that Google’s implementation of their April Fools’ joke breached the duty of reasonable care.  This being said, it would be a heck of an uphill battle to prove it.

So with duty and breach established, sort of, let’s look to causation. Could a plaintiff show that but-for the “Drop the Mic” feature they would not have lost their job?  One of the very few instances of somebody losing their job over Google’s prank is a writer who claims he accidentally clicked the “Drop the Mic” button when sending his articles to his editor.  Due to the mute function, the writer states that he never received the suggested edits and missed his deadline.  His editor also took offense to the slight to her suggestions of the minion mic drop and ultimately fired him.

In a situation such as that of the writer, it seems likely that but-for the confusing positioning of the “Drop the Mic” button he would not have lost his job.

There is a real chance that Google may be vulnerable to a negligence lawsuit if the facts available are true and complete. However, not only may there be facts we do not know, the case is already fairly tenuous as to whether Google has actually breached a duty.  There is a real chance that Google may be vulnerable to a lawsuit, however it’s a slim chance at best.

Protecting Your Business

Google has opened themselves up to potential lawsuits through what seemed to be a fun prank. Their danger is at best moderate, but wherever possible, it’s best to avoid such danger all together.  When preparing to offer a product or service, consider the potential implications of the use of that product or service.  If you are unsure whether you might be placing yourself in a lawsuit’s crosshairs, consult a lawyer.  You don’t want to end up in a courtroom with a Judge dropping the mic.

Shots on Goal: Will the U.S. Women’s Soccer Team’s Gender Discrimination Lawsuit Succeed?

The U.S. Women’s national soccer team is among the top women’s soccer teams in the world—potentially the outright best. They’re currently ranked first in the world and generally rank no lower than second. They’re also winners of three Women’s World Cups, four Olympic gold medals, and over 17 other high-tier international cups.

The Men’s U.S. team, while filled with extraordinary talents, has never been able to compete with the ladies in terms of success. Currently ranked 29th in the world, they have never placed higher than third in a World Cup and have never approached the women in terms of success in other tournaments.

Given the consistent distinguished performance of the Women’s team, you’d think their pay would be greater than their male counterparts—or at a minimum similar to each other. You’d be wrong by a matter of degrees.  The men’s team makes over three times more for a loss than the women’s team makes for a win. Where the men win this discrepancy increases to as high as 13 times as much as the women.  This is before taking into account other contract incentives which widen the gap even further.

The women’s team has had enough of this discrepancy in pay. They recently filed a complaint with the Equal Employment Opportunity Commission accusing the U.S. Soccer Federation of gender-based discrimination in their pay.  The numbers above are from their complaint.  The difference in pay between men and women’s sports is far from a new story.  However, the U.S. Women’s soccer team face an uphill battle in their lawsuit.  In order to understand why, let’s look at the law behind cases alleging gender-based wage discrimination.

Gender-Based Wage Discrimination: The U.S. Women’s Soccer Team’s Lawsuit

Hope Solo, famous goalkeeper for the U.S. team and co-plaintiff in the team’s complaint, has been quoted saying “we are the best in the world, have three World Cup championships, four Olympic championships…[and the players on the men’s team] get paid more to just show up than we get paid to win major championships.” So if this is true, how could the women’s team lose a case alleging discrimination in how they get paid?

The Equal Pay Act makes disparate pay based on gender illegal.  In other words, an employer can’t pay you less because you’re a woman or because you’re a man.  In order to successfully sue under the Equal Pay Act a plaintiff must show several things: you’ve been wrongly discriminated against based on a protected characteristic, you’re being paid unequally for doing the same work, and you work under similar conditions in the same company as those being paid more than you.  US Soccer

Discrimination can be shown through patterns in the behavior of your employer, such as consistently paying women less across the board. Work is considered equal where it takes place in similar working conditions and requires the same level of skill, effort, and responsibility.  Based on the women’s team’s complaint, proving both of these should both be easy as dribbling the ball for the ladies.  They have demonstrated that the women’s team is paid less across the board for the same work as the men’s team.

While U.S. Soccer disputes the accuracy of the women’s teams’ figures, even were the difference in pay substantially smaller it could still establish disparate pay. However, even though the case looks strong on its face, there are two huge hurdles the women’s team will need to overcome in order to be successful in their suit: the difference in earnings between men and women’s soccer and the fact that the women’s team collectively bargained for their current pay agreement.

How the Shot Could be Blocked—Difference in Revenue

Under the Equal Pay Act, there are several ways an employer can counter a claim of wage discrimination.  These ways include, among other things, a proven ability to generate higher revenue to support a differential in pay.  Where an employer can show such an alternate basis for the difference in pay, it is a defense to an allegation of wage discrimination.

U.S. Soccer will certainly argue that the ladies make less money than the men and that this is the basis for the difference in pay. In their complaint, the women’s team alleges that last year they made $20M more in revenue than the men’s team while attracting similarly sized crowds.  However, this being said, last year’s Women’s World Cup garnered $17M in sponsorship revenue.  This is a record amount, nearly tripling the income from 2011.  The men’s World Cup raised $529M last year.  The prize pool for the last years Women’s World Cup, a substantial source of potential revenue, was $15M.  The prize pool for the men’s World Cup was $576M.

It is extremely dubious that the men’s event is so much more exciting that it merits 38 times the prize pool of the women’s event.  However, be it social stigma or other cause, this is the reality of the situation.  U.S. Soccer will argue that this substantial difference in prize pool and sponsorship money justifies the difference in pay between the men and the women.  Hope Solo has told news sources that she and her teammates believe they would make similar money to the men if they were provided a similar marketing budget.  Unfortunately for the team, without evidence to back Ms. Solo’s argument up, U.S. Soccer is likely to prevail in their defense.

Disagreeing Over the Rules—Is the U.S. Women’s Soccer Team Bound by Their Contract?

Even if the team can overcome this argument with proof of equivalent or greater revenues to the men, they face another serious legal problem in their case—the fact that the team’s union negotiated the terms of their contract. An agreement which, according to U.S. Soccer, they negotiated for not once, but twice.

It is unclear whether the team is still bound by this contract. The agreement ostensibly expired in 2012.  However, U.S. Soccer claims that an agreement was later signed extending the agreement.  U.S. Soccer has argued, in response to the complaint, that the contract includes benefits not included in the men’s contract, such as maternity leave.  They also state that pay structure, negotiated for by the team’s union, trades a more conservative pay structure for guaranteed compensation.  This argument of pay structure may undercut the team’s discrimination claim by explaining the difference in compensation between and men and women in a way that does not imply gender-based discrimination.

A secondary, and somewhat less established, concern is the fact that the contract is a product of union negotiations. The right to be represented by unions is ensured by the National Labor Relations Act (NLRA).  There are examples of things normally illegal under federal law being acceptable where they are the product of union negotiations.  For example, the salary caps common in sports would generally be considered illegal are usually ruled permissible where agreed to by a union.

However, there is very little case law as to how to treat any particular conflict between the right to union negotiations under the NLRA and other federally guaranteed rights.  It seems unlikely that something as fundamental to civil rights as the Equal Pay Act could be waived by union negotiations.  However, U.S. Soccer could credibly claim that, even if the contract is wage discrimination, the fact that the union negotiated for the contract prevents them from being liable.

The 2015 Women’s World Cup Final, with the U.S. women’s team taking it all, was the most watched soccer match in U.S. history. The women on the team are extraordinary athletes, worthy of every accolade they have received.  Disparity in pay between male and female athletes is nearly universal to sports; the goal the ladies of the U.S. Women’s team have set themselves is a noble one.  However, their case is not shooting on an empty net.  They’ll have a lot to overcome if they hope to succeed in their lawsuit.