Archive for the 'Employment' Category

Whole Foods Loses the Fight to Stop Employee’s NLRA Right to Record

As an employee, protecting your rights is incredibly important. However, even with full knowledge of the rights you possess it can be tricky to identify situations where rights are violated and gather the evidence to prove your case when you look to enforce those rights. Communicating with others and recording situations where your rights may have been violated can be critical in making a case or even just determining whether your rights have been violated in the first place. Thankfully, your right to record in the workplace was just given a major boost in a recent ruling against Whole Foods by the National Labor Relations Board (NLRB).

The NLRB is the federal agency in charge of enforcing labor laws related to unions, collective bargaining, and unfair labor practices-primarily as set forth in the National Labor Relations Act (NLRA). Just a few weeks ago, the Second Circuit upheld a decision of the NLRB deciding that Whole Foods had violated the NLRA through a policy barring recording conversations, phone calls or meetings in the workplace without manager approval.

With this case upheld on appeal, let’s take a look at the rights the NLRA grants you, the case itself, and what the case means for you as an employee or an employer.

Your NLRA Rights

The NLRA itself provides you a fairly broad suite of rights related to your ability to organize and bargain collectively. Under the act you have the right to (or not to) self-organize, form, join, or assist labor organizations, bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This basically means you have the right to choose whether or not to join with other employees in bargaining for employment terms. You also have the right to take the steps necessary to coordinate that group bargaining.

In order to protect these rights, the NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of any of the rights discussed above.

The Case Against Whole Foods

Whole Foods had two policies on the books that got them into the legal trouble which led to this case. First, a policy forbidding any audio or visual recording of company meetings-with any recording device-without prior approval of a manager. The second policy applied a similar recording ban on any conversation held during business hours. These policies applied to any topic of conversation and all areas of every Whole Foods store.

The stated goal behind these policies was to encourage “open communication” and “spontaneous and honest dialogue.”  Whole Foods argued that, regardless of the policy, they strove to foster a culture where employees were free to speak up though open door policies and “town hall meetings.” They argued that recording meetings would damage the anonymity behind complaints and weaken employee rights.

However, the NLRB and the Second Circuit weren’t buying it. The test to see if rights have been violated isn’t whether an employer provides sufficient avenues for an employee to speak out, but rather whether the policy could inhibit an employee’s NLRA rights.

Whole FoodsWhen Does a Policy Violate the NLRA?

A policy inhibits rights where it would “reasonably tend to chill employees in the exercise or their” NLRA rights. This means that policies which tend to make it harder to exercise your rights are not ok. This can happen where a policy explicitly restricts you from doing something the NLRA guarantees. However, a policy also violates the NLRA when: 1) an employee would reasonably consider in to prohibit them from asserting NLRA rights; 2) the rule was made in response to union activity, or 3) the rule, despite how it is written, has been used to restrict employees’ NLRA rights. Where a rule is ambiguous, but could be interpreted to violate NLRA rights, it still violates the NLRA. This unacceptable overbreadth exists when an employee would reasonably interpret the policy to prevent exercise of NLRA rights. It is this rule against overbroad policies that worked against Whole Foods.

Ruling Against Whole Foods

The policies are a blanket ban on all recording. However, photography and video recording in the workplace have historically been guaranteed when it is done to document a potential violation of rights under the NLRA unless there is a particularly compelling reason for the employer to ban them such as the heightened privacy interests of patients within a hospital. The NLRA has even been interpreted to guarantee an employee’s ability to post these photographs and recordings on social media.

Despite Whole Foods stated purpose of maintaining open communication, the policies as written prevented employees from exercising these rights. Thus, the policies violated the NLRA by inappropriately curtailing protected employee actions.

However, the ruling didn’t hold Whole Foods’ feet to the fire too much. It only really required them to retract the policies, or at least reword them to provide exceptions for NLRA protected recording.

What Does This Mean For Employers and Employees?

One thing to keep in mind is that this is not the only time in recent memory that the Second Circuit has backed the NLRB in expanding the definitions of employee rights under the NLRA. It was just May of this year that they ruled that an employee had the right under the NLRA to post quite unflattering things about his manager in a social media post because the post also discussed an ongoing union election. This could be seen as a trend towards expanding the spheres in which an employee enjoys NLRA protection.

For employees, this ruling means that you enjoy greater NLRA protections on your right to organize and record the behavior of your employer. This is incredibly important because proving a violation of your NLRA rights will often require this sort of recorded evidence.

As an employer, this ruling can act as guidance for crafting policies on recording that avoid the mistakes of Whole Foods. Recording restrictions haven’t been banned altogether, rather recording restrictions without clearly defined exemptions for NLRA rights have. The lesson here is to make sure that your policies include these exemptions in order to avoid trouble with the NLRB.

So is this the beginning of a trend where NLRA rights catch up with tech? It’s simply too early to say. However, the trend is encouraging. Recording devices are more broadly available than ever before. It’s a safe wager that a large portion of those reading have one in their pocket or purse as we speak. With recording rights protected, it’ll be easier than ever before to gather the evidence necessary to protect your rights-and that’s encouraging.

Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.

Day of Rest: CA Supreme Court Clarifies the Requirements

Whether you are an employee or an employer, knowing exactly how wage-an-hour law works is crucial. No employee wants to be underpaid and no employer wants to be staring down the barrel of a lawsuit. However, no matter how well acquainted you are with the requirements of employment law there will always be edge cases and ambiguities-that’s why there are lawyers.

One of the most egregious of these ambiguities in California employment law has been the state’s “day of rest” provisions. Causing employers and employees alike to tear their hair out over whether they’re paying or being paid properly, the law has been in place for years without a final ruling on how it works.

In California, and in many other states, there are several situations which require an employer to pay overtime to their employee. Barring specific exceptions, such as an employment agreement specifically allowing an alternate schedule such as four days of ten hours each, these situations are include days where an employee works over eight hours in a single day or over 40 hours in a single work week. However, the “day of rest” provisions include a third situation where overtime must be paid. Whenever an employer “causes “an employee to “work more than six days in seven.”

Day of RestWhile there has been sort of an unspoken agreement as to what this exactly means among the courts, the phrasing of the law has left many interpretations up in the air and no court had ever sat down and explicitly said what the law meant.  This left employers and employees alike in a state of legal limbo. Does the law prevent an employer from making somebody work any seven days in a row or only in each workweek? When exactly has an employer “caused” an employee to work seven days in a row? Are there any exceptions to the “day of rest” rules?

After the 9th Circuit Court of Appeals punted to the California Supreme Court on all these ambiguities, the highest court in California has come to the rescue of confused employers and employees. In a recent ruling they have answered all these questions and put to rest one of the longest running mysteries in California employment law.

So How Do “Day of Rest” Rules Work?

First, the Court addressed the most pressing question-when has an employer violated day of rest provisions in the first place? In other areas of California employment law, it is common to calculate overtime as part of a single workweek. A workweek can start on any day, but once it’s defined it will always be the seven day period starting with that day. Most businesses use Monday to Sunday for their workweek. The California Supreme Court followed this trend in deciding what exactly counted as working more than six days in seven. They ruled that the purpose of the law was to guarantee a day of rest in any given workweek as opposed to any given string of seven days. This means that an employer can have an employee work more than seven days in a row. In fact, with a day off at the very beginning and the very end an employer could have an employee work as many as twelve days in a row across two workweeks. With a standard workweek this would involve having the first Monday off, working until the Saturday after next, then having that final Sunday off.

The Court also ruled on what it means for an employer to “cause” an employee to work more than six days in a workweek. Interpreted literally, “cause” could mean literally any situation where an employee works seven days in a workweek-regardless of a waiver on the employees part. Once again, the Supreme Court officially ruled that this is not the case. While “an employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not…forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.” To cut out the legalese, this means that if an employee wants to work seven days in a workweek despite being told they don’t have to the employer has not violated “day of rest” rules.

Finally, the Supreme Court ruled that there is an exception to the “day of rest” rules where an employee never works more than six hours in a day during a workweek. If an employee works more than six hours in any given day during a week then “day of rest” rules apply to that employee for that workweek and they need to be offered at least one day off.

What Does This Ruling Mean For Employers and Employees?

For California employers, this ruling is huge for two reasons. First, by removing the ambiguity in “day of rest” laws the Court has allowed these employers to operate without fear of surprise lawsuits. Second, the exact rulings will give employers plenty to celebrate. By and large, the Court’s rulings on the matter have offered employers the largest possible latitude in handling “day of rest” rules without removing the requirement altogether. The ruling allows the day of rest to be provided whenever is convenient within a workweek, allows employees to forgo a day of rest, and even provides outright exemptions for some part-time (and full-time) employees.

But California employees have something to celebrate as well. While the “day of rest” rights have been given more liberal interpretation, they are still well-defined rights which every employee can enjoy. The ruling of the court corresponds closely with how most courts have interpreted the rights up until now. Instead of losing rights, employees have a better idea of what exactly their rights are. This means an employee, and a lawyer advising that employee, can be more sure that they have a strong claim before bringing what might be an expensive legal action.

Now that these rights are more clearly defined, it’s never been more important to thoroughly understand them. Whether you’re an employee or an employer, how to handle day of rest has been demystified and that’s something to smile about.

The Wage Gap: Women Face Lower Wages than Men Based on Salary History

Aileen Rizo was excited to start her new job as a math consultant for Fresno County schools. After working as a schoolteacher in Arizona for 13 years, she began her new job in 2009 with a $62,733 salary. The salary was based on an automatic system where the County added 5% to the applicant’s previous pay rate.

Three years later, Ms. Rizo discovered during lunch hour conversations that a recent hire in her position was earning $79,000 a year. After asking around, she learned that all her male co-workers in her position were also making more than she was. Ms. Rizo filed suit.

The County argued that the Equal Pay Act creates exemptions based on factors other than sex, including seniority, merit, and quality or quantity of work. Salary history could be another factor added to the list. Ms. Rizo won in the trial court, but the three judge appeals panel on the Ninth Circuit agreed with the County and overturned the lower court’s ruling. Rizo’s attorney is considering an appeal to the Supreme Court.

working womenSalary History Could Make Sexism in Pay Rates Worse

The Ninth Circuit panel’s ruling has been widely criticized as perpetrating institutional sexism.  If women are paid 80 cents for every dollar a man earns, then salary history would only continue that trend. In fact, no matter how qualified the woman, she would never catch up with her male counterpart if the system automatically gave them each 5% per year. In fact, the pay rate difference would actually increase which will create a permanent wage gap.

Below is a chart showing this exact issue (all numbers rounded up). If a man earns $79,000 a year and a woman holding the same position earns $62,733 a year and they both received a 5% increase per year, than the difference between their pay rates would slowly climb up over the years:

Women Annual Income Women Hourly Rate Men Annual Income Men Hourly Rate Difference Between Hourly Rates


$33 $79000 $41 $8/hour


$34 $82950 $43 $9/hour
$69164 $36 $87098 $45 $9/hour


$38 $91453 $48 $10/hour
$76253 $40 $96026 $50 $10/hour


However, the County’s argument is a fair one. The County did not enact the discrimination, even if the previous salary history was based on sexism. However, there would be no way for the County to know whether a woman earns less than her male co-workers because of her sex or because she’s not a good worker. Ms. Rizo would be well-served if she compared her salary to her female co-workers as well as her male co-workers.

If every woman holding the same position made less than men working the same position, than there would likely be systemic discrimination, even if the County itself did not enact the discrimination. On the other hand, if Rizo’s income is lower than other women as well as other men, than the issue probably lies with Rizo’s performance or career path rather than her sex.

Removing Human Discretion Does Not Make a System More Fair

The biggest issue with this debate is whether systemic sexism is holding half the population back or whether the system truly promotes individual merit. Regardless of which side of the debate you find yourself in though, there is one point that should be obvious. The County argued that since they give everyone they hire a 5% increase regardless of where they came from, then the system cannot be discriminatory. Everyone is given the same 5% raise and there is no human being who could unfairly discriminate based on inappropriate factors.

This assumption, that automation is fairness, needs to die. Simply giving out a 5% increase does nothing to combat inappropriate discrimination because the discrimination is built into the system itself. If a woman always earns less than men, then giving both sexes the same increase does nothing to resolve the issue. Likewise, even if you believe that increases are appropriate, then such increases would also hold back men who deserve the increase, regardless of the sex of their competition.

In short, automation of a system hurts everyone. One can see the same effect in mandatory minimum sentences in criminal law. By taking away human discretion, the system arbitrarily perpetuates increased sentences rather than treating people more fairly. Americans want to increase fairness and so they remove human input. But if some people’s discretion can be biased against a certain class of persons, discretion can also remove it.

College Athletes: Students or Employees?

To describe college athletics as a big business would be an understatement. Each game a college team participates in during March Madness earns the conference the school is out of nearly $2M. Just this year NCAA basketball tournament play alone earned Gonzaga around $8.5M. As of last year, 24 universities were raking in over $100M off college athletics yearly–UCLA just missed the cut with about $97M on the year while Texas A&M made nearly $200M.

With so much money being made off the performances of student athletes, the fact that those athletes are paid nothing and outright forbidden from receiving any money for their performances has long been a hot topic in the courts. Many athletes and legal commentators have described the situation as unfairly designed to allow schools to derive every avenue of profit from a student athlete–merchandising sales, advertising, etc. However, the courts have historically come down against student athletes being compensated in any way.

Just a few weeks ago, a California District Court continued this trend by ruling that a college football player is not an employee of the school he plays for.  In the suit, the player–formerly out of USC–was seeking pay and overtime for the many hours he was required to play and practice. Let’s take a look at his case, the result, and the history of similar cases over the past several years.

College AthletesLamar Dawson’s Lawsuit

Lamar Dawson had played football for the University of Southern California for the entire time he attended the university. This often required him to frequently practice, workout, and play over 40 hours in a week. If he were an employee, spending this sort of time would equate to being paid overtime for his efforts. However, as an amateur athlete he was provided essentially nothing at all. In his lawsuit, he pointed to all this time he spent, and the control USC had over his life and what he could do while remaining a student athlete, and argued that he should be treated as an employee of the school.

Mr. Dawson was suing under the Fair Labor Standards Act (FLSA), a law providing federal guidelines for both minimum wage and overtime pay for employees. However, under the FLSA only employees can recover for a claim of unpaid wages or overtime. Thus, whether Mr. Dawson was an employee or not was the central question of the case. The FLSA describes somebody as an employee where an employer “suffers or permits them to work.”  This is a broad definition, if somebody shows up and starts working and the employer learns about that fact and lets them continue the guy who showed up is probably an employee.

The Ninth Circuit, where this case took place, normally uses a multifactor test to decide whether a given person is an employee. They look at whether the potential employer 1) had the power to hire and fire employees; 2) controlled schedule and conditions of employment; 3) determined the rate of payment; and 4) maintained employment records. They look at this, and other surrounding circumstances, to decide whether somebody was an employee. If this were the test used, Mr. Dawson would have had an interesting case. His school certainly controlled whether or not he could continue as a student athlete and they also restricted his diet, schedule, and many more aspects of his life. However, the court chose to use another test in making their determination–a “true nature of the relationship test.”

This is not unheard of or out of the blue, many courts have rejected the multifactor test where it does not properly map to the situation at hand. The court felt that was the case here. They instead relied heavily on the Seventh Circuit Berger decision from last year–pitting the NCAA and Penn State against a former football player–where the court determined that the athlete was not an employee due to the “long tradition of amateurism in college sports” and the voluntary nature of participating in college athletics. They basically decided that because the athletes go in, of their own volition, expecting not to be paid they can’t be athletes. Using this justification, both courts decided that student athletics is not “work” under the FLSA and the athletes are not employees.

Shifting Landscape on Pay for Play Student Athletes

Despite how his case went, it’s not so surprising that Mr. Dawson chose now to bring his case. It has long been the case that the NCAA rules prohibit college athletes from making money off their play. Whether that is actual pay from a university or the student profiting off their popularity through marketing their name, image, or likeness. However, as student athletics becomes more and more of an earner for universities there has been an accompanying outcry to allow the athletes to have at least a small piece of that pie.

As schools take more and more control over the lives of their athletes and demand more and more of their time–often well over 40 hours a week. A backlash in the courts was inevitable. In 2014, the National Labor Relations Board (NLRB) ruled that due to the immense control Northwestern University was exerting over its athletes–athletes had to ask permission regarding living arrangements, social media posts, food they ate, outside employment, when and where they could drive off-campus, and more–the students in the case were employees. The ruling was short lived, on appeal the NLRB overruled themselves, saying that such a determination “would not promote stability in labor relations.”  However, the appeal still left the door open by saying that subsequent changes in how student athletes are treated could still make an athlete an employee.

Just last year, another case claiming that universities profit off student athletes’ names and likenesses without paying those students led to a decision that the NCAA’s rules disallowing compensation violate anti-trust laws. However, the decision was once again mostly torpedoed on appeal with a court saying that allowing student athletes to profit off their play would remove the distinction between amateur and pro sports. While the appeals court still agreed that selling the names and likenesses of students for TV broadcasts and video games violated the law, they stopped short of allowing actual compensation to student athletes. They instead increased the amount of compensation allowed to include “the full cost of attendance.”  This basically means both tuition and living expenses.

These rulings, while ultimately made much less impactful after appeal, have served to undercut the NCAA’s long-held assertion that the very fact that college athletics is amateur in nature by itself rules out the need for compensation and the potential for these athletes to be treated as employees. This has led to more and more legal challenges, such as Mr. Dawson’s, to how the NCAA handles its student athletes. However, despite these cases indicating a change in the legal landscape, those seeking to change how student athletics is handled face quite an uphill climb.

The Department of Labor operations handbook outright excludes student athletes from the definition of an employee under the FLSA. In California, student athletes have been statutorily barred from receiving workers’ compensation  as non-employees in response to a court case which  ruled otherwise. Student athletes have also been ruled to be excluded from treatment as employees in a number of other contexts–tort law, under the Fair Employment and Housing Act, and more.

While the door has been opened to these types of lawsuits by the changing landscape of collegiate athletics as a big business, there is still a lot of ground to cover before Mr. Dawson will be likely to succeed. His case will certainly be appealed, and that is an appeal to watch, but the state of the law has not shifted so much that his chances are particularly strong.