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A Kansas Employers’ Guide to the New Year
By: Travis Hanson

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

EEOC & Title VII Litigation Trends. 2018 saw another increase in harassment and discrimination lawsuits being filed nationwide. In fact, EEOC litigation filings have doubled since 2016. One big area of movement is sexual harassment cases and charges, which rose significantly in 2018 after more than five years of decreasing numbers. We expect this trend will continue into 2019.
Another trend is the EEOC’s sustained efforts to push for inclusion of sexual orientation and gender identity as protected classes under Title VII, which prohibits discrimination, “because of sex.” The Supreme Court has long held that Title VII protects against discrimination for employees who don’t meet typical “gender norms,” such as a woman who is not feminine enough, but it has not yet addressed head-on the questions of sexual orientation or gender identity.
Over the last few years, the EEOC has taken a clear position that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sexual discrimination under Title VII.” Currently,      Continue Reading...
Real Life Is Stranger Than Fiction
By: Teresa Shulda

Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.

Georgia man gets a kick in the butt(dial)
James Stephens worked as the Fiscal Officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, Stephens’ boss, Michael Coan, called Stephens at home on his cell phone and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.
Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice – resign or be fired. Stephens resigned, then he and his wife sued Coan under Georgia’s eavesdropping law and for invading the Stephens’ right to privacy. The Stephens claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen in to the Stephens’ private conversation.
Coan filed a motion to dismiss the lawsuit, arguing that Coan was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee      Continue Reading...
Arbitrate or litigate?
By: Eric Turner

The validity of arbitration agreements continues to be the subject of litigation in Kansas and Missouri. The U.S. Supreme Court’s decision to uphold class action waivers in arbitration agreements between employers and employees is one of many other issues raised in recent employment arbitration cases.

In October, a federal court in Kansas considered whether an enforceable arbitration agreement existed when the employee didn’t sign the arbitration agreement. In Kansas, an employee continuing to work after receiving notice of an employer’s arbitration policy is generally considered the same as an employee who has accepted the terms of the arbitration policy. In the most recent case, the employer sent multiple emails to the employee’s work email informing her of her right to opt out of arbitration. The employee didn’t deny receiving the emails and didn’t opt out of the agreement. The court initially noted that, if accepted, the agreement would be valid because it required both the employer and employee to arbitrate any disputes. In contrast, an agreement that requires the employee to arbitrate but makes arbitration optional for the employer isn’t enforceable. The key issue in this case was whether an employee failing to opt out may be deemed to have accepted mandatory arbitration. The court found that even if the employee didn’t read any of the emails, the employer provided adequate notice, and the employee had a meaningful opportunity to reject the offer of arbitration. Thus, by failing to opt out, the employee bound herself to arbitrate her discrimination and retaliation      Continue Reading...

Court Not Goo-Goo over Gaga—the FLSA Monster Revisited
By: Boyd Byers

Earlier this year we reported on a lawsuit against pop diva Lady Gaga by a former personal assistant for unpaid overtime. (See Gaga over the FLSA Monster.) For those of you waiting on the edge of your seat to see how the case turned out, here's an update.

If you're late to the party, here's the back story. Stefani Germanotta (aka “Lady Gaga”) hired Jennifer O’Neil, a friend, as her assistant. O’Neil was told that she would receive $75,000 as an annual salary, but nothing was said about overtime. Things went bad, O’Neil was fired, and she now claims Gaga failed to pay her overtime wages when she was “working and/or on call every hour of every day” while on tour with Gaga.

O’Neil had various responsibilities, such as cleaning Gaga’s hotel room, ensuring Gaga was “hopefully” on time to places, making sure Gaga ate and drank when she needed, and handling Gaga’s extensive luggage—generally twenty bags. According to O’Neil, Gaga would wake her during the night to take out a DVD and replace it with another because Gaga was tired of the movie she was watching.
In September, a New York court denied Gaga's motion to dismiss O’Neil’s FLSA claim for unpaid wages for on-call time. The court explained that “on-call time can constitute work and is compensable under the FLSA where the employer restricts an employee’s ability to use the time freely for his or her own benefit.” This includes periods of inactivity that are unpredictable and usually of short duration, as the      Continue Reading...
‘Not so fast,’ Kansas AG tells EEOC
By: Boyd Byers

The college football season is upon us. Which means the return of the antics and banter of Lee Corso, Kirk Herbstreit, and Chris Fowler on ESPN’s College GameDay program. As part of their weekly shtick, Herbstreit makes a prediction about a game, to which Corso expresses wild disagreement, uttering his catchphrase, “Not so fast, my friend!”

Last year the Equal Employment Opportunity Commission issued controversial enforcement guidance regarding the use of arrest and conviction records in employment decisions. This summer the EEOC put its playbook into action by suing two employers, BMW and Dollar General, for their use of criminal background checks. In response, the Kansas Attorney General (along with the AGs from eight other states) said, “Not so fast!” Well, not literally. And, unlike Lee Corso, they did not say “my friend.” What the AGs actually said, in an open letter to the EEOC, is that the guidance and lawsuits are “misguided” and “a quintessential example of gross federal overreach.”  Boo Yah!
Things went from bad to worse for the EEOC two weeks later, when a federal court punted the commission’s lawsuit against another employer based on its use of criminal background checks. The EEOC alleged that the background checks caused a disparate number of African-American and male workers to be disqualified from jobs. But the court threw out the case, calling the EEOC’s analysis “flawed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty." Read the play-by-play below.
EEOC game plan
In April of last year, the EEOC issued Enforcement Guidance      Continue Reading...
EEOC Sues Employers Over Criminal Background Checks
By: Boyd Byers

Last year the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964. As explained in the Guidance, an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate prohibitions against employment discrimination, particularly with regard to race and national origin. This can occur when an employer's neutral policy disproportionately impacts persons of a particular race or national origin, and the policy is not job-related and consistent with business necessity. Last week the EEOC put its money where its mouth is by suing two employers, BMW and Dollar General, for their use of criminal background checks.     

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The EEOC alleges that after BMW ended its contract with UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at a manufacturing facility, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse.  As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the      Continue Reading...

Wage-and-Hour Lawsuits on the Rise

Federal wage-and-hour lawsuits have been increasing steadily over the past decade. The number of cases has gone up almost every year since 2000.  Nationally, the number of cases filed in 2011 is over 380% higher than the number filed in 2000. The trend is similar in Kansas, with a nearly 350% increase in cases filed in 2011 compared to 2001. 

Why? The poor job market is at least partly to blame. When employees get laid off and cannot find other work, they are more likely to look for ways to get money out of their former employer. In addition, several high-profile cases and aggressive Internet marketing by lawyers have made workers more aware of their rights under wage-and-hour law. These cases are attractive to lawyers who represent employees for several reasons: there is no requirement to prove intent or unlawful motive--either the employer followed the technical requirements of the law or it didn't; they are relatively easy to bring as group actions on behalf of all similarly situated employees; and the law provides for recovery of attorneys' fees if the employee prevails. 

The Wichita Eagle ran a feature story about the increase in wage-and-hour claims in its Sunday Business section. Kansas Employment Law Blog author Boyd Byers, who was quoted in the story, explained that most wage-and-hour cases fit in one of three categories:

  • "Misclassification" cases, where the issue is whether the employer misclassified non-exempt employees as being exempt from the law's overtime requirements;
  • "Off-the-clock" cases, in which employees allege they were not properly paid for all of their time spent      Continue Reading...
Beware of Black Swans
By: Boyd Byers

Europeans in the Middle Ages came up with the colloquialism “rare as a black swan” to describe impossibility, because they knew good and well that all swans are white.  Then Dutch explorer Willem de Vlamingh discovered black swans in Australia in 1697.  Oops.  After that the term “black swan” was used to describe a perceived impossibility that might later be proved possible.             

Philosopher Nassim Nicholas Taleb expanded on this idea and developed it into a theory, which he described in his 2007 bestselling book, The Black Swan: The Impact of the Highly Improbable.  A black swan, as described by Taleb, is an unexpected, high-impact event that comes as a surprise to the observer, but which the observer rationalizes afterwards as if it could have been expected.  World War I, the Internet, and the September 11 terrorist attacks are classic examples of black swan events, according to Taleb.
Taleb cautions that businesses need to be prepared for black swan events.  He wrote in 2007 that banks and trading firms had exposed themselves to massive losses beyond the predictions of their limited, and thus defective, models.  The events of 2008 seem to have proven him right.  
“Black Swan,” the movie, is a 2010 psychological thriller starring Natalie Portman as a ballet dancer in a production of “Swan Lake.”  The film received critical praise, including several Academy Award nominations, and Portman won the Best Actress Oscar      Continue Reading...
Court Is Now In Session
By: Boyd Byers

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Supreme Court reconvened today, the first Monday in October.  There are several employment-law-related cases on the docket.  Perhaps the most-anticipated case before the Justices is the legal challenge to the Affordable Care Act (health care reform law).  Another closely watched case will address whether Arizona’s tough immigration law is preempted by federal law.  The High Court will also decide whether the “ministerial exemption” to the ADA applies to a religious teacher at a church school, and whether states can be sued under the FMLA’s “self-care” provision for failing to provide employees with 12 weeks of unpaid leave for their own serious health condition.  Kansas Employment Law Blog will keep you up to date as these and other cases affecting employers are decided.     
Confucius Says: He Who Retaliates Digs His Own Grave
By: Boyd Byers

The thirst for revenge is among the strongest of human emotions.  In fact, the innate human desire to “get even” has driven much of the history of the world.  But acting on feelings of revenge can have dire consequences, not only in the world at large, but particularly in the world of employment law.

Most employment-protection laws contain anti-retaliation provisions.  And courts are broadly interpreting and applying these provisions.
The U.S. Supreme Court has recognized and expanded the right to bring retaliation claims in a series of cases over the past several years.  In January, the Court ruled that Title VII’s anti-retaliation provision covered an employee who was fired shortly after his fiancée, who worked for the same company, filed a sex discrimination claim.  (Supreme Court Finds in Favor of Fired Fiance 01/25/2011)
In March, the Court held that the FLSA’s anti-retaliation provision, which uses the phrase “filed any complaint,” applies to an employee’s oral complaints. 
These cases follow prior decisions in the last five years in which the Court ruled that: 
·       Title VII’s anti-retaliation clause, which refers to “opposition,” does not require active opposition, but encompasses involuntary participation, such as making statements during an employer’s internal investigation;
·       Employees can bring retaliation claims under the ADEA;
·       Employees can bring retaliation claims under Section 1981 of Chapter 42 of the      Continue Reading...
The Monkey, the Cat, and the Army Reservist
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

In this case, Vincent Staub alleged he was fired because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub presented evidence that his two immediate supervisors had an anti-military bias, and that they in turn had convinced the human resources manager to fire him. Staub argued that even though the HR manager, who actually made the decision, was not herself biased, the company could still be held liable for discrimination because she fired Staub based on information the supervisors reported to HR and put in Staub’s personnel file.  

The      Continue Reading...

Supreme Court Finds in Favor of Fired Fiancee
By: Boyd Byers

Yesterday the U.S. Supreme Court ruled that a male employee, who alleges he was fired because his fiancee filed a sex discrimination claim against the company that employed them both, may pursue a retaliation claim under Title VII of the Civil Rights Act of 1964. The Court, applying the standard it established in the 2006 case Burlington Northern v. White, said there is no dispute that an employee considering filing a discrimination charge might well be dissuaded if she knew her employer would react by firing her fiancee. (In Burlington, the Court ruled that Title VII retaliation is not limited to actions that affect the terms and conditions of employment, but also covers any actions that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.")  So the female employee who filed the original sex bias claim would have an action for retaliation. The more difficult question, according to the Court, was whether the male employee is a “person aggrieved” within the meaning of Title VII and thus entitled to sue.

The man, Eric Thompson, alleged that his employer, North American Stainless, fired him three weeks after it received notice that Miriam Regalado, his fiancee (now his wife), filed a sex discrimination claim against the company. Both the district court and appeals court ruled against Thompson, reasoning that while Regalado could state a retaliation claim based on Thompson’s firing, Thompson himself could not make a claim under Title VII because he had not engaged in protected activity. 

The Supreme Court      Continue Reading...

EEOC Statistics
By: Donald Berner

As most of you are aware, the EEOC is charged with enforcing the federal anti-discrimination statutes that impact most employers.  The primary vehicle utilized to bring an allegation of discrimination under those statutes is for an applicant, employee, and/or former employee to file a charge of discrimination with the EEOC.  The filing of a charge typically triggers an investigative phase and the issuance of some sort of finding by the EEOC.  The EEOC tracks and makes public the statistical data for any given year.  A review of the statistics can be informative in viewing the big picture of where the risks lie for employers.  In looking at the 2009 data (the most recent available), the following points merit mention:

1.  Claims of discrimination filed in 2009 are even or slightly higher than those filed in 2008 and remain at much higher levels than 2007 filings.  When reviewing the raw data, remember that a charge can consist of multiple claims of discrimination which must be counted as a separate claim. 

2.  Race, gender, and age based claims declined in 2009 as compared to 2008. While these traditional areas of discrimination claims seems to have stagnated over the last two years, the overall numbers of claims in these areas make up a significant volume of claims filed with the EEOC.

3.  National origin, religion, disability, and retaliation claims are all up as compared to 2008.  Claims of national origin and religious discrimination don't account for many claims overall, but these are both areas that have experienced considerable and rapid growth in the number of claims filed      Continue Reading...

Don't Fire Me Because I'm Beautiful
By: Boyd Byers

If you've heard me say it once, you've heard me say it a hundred times: Anybody can sue anyone for any or no reason.  Debrahlee Lorenzana is the latest to prove this point. 

Lorenzana filed a lawsuit claiming she was fired from her job at a New York bank for being too good-looking.  The lawsuit alleges that she was ordered to "[r]efrain from wearing certain items of clothing, in particular, turtleneck tops, pencil skirts, fitted business suits, or other properly tailored clothing.  In blatantly discriminatory fashion, [she] was advised that as a result of the shape of her figure, such clothes were purportedly 'too distracting' for her male colleagues and supervisors to bear."  Other female workers were allowed to wear similar clothing, she alleges, but "[t]heir general unattractiveness rendered moot their sartorial choices, unlike [hers]." 

You can read more about this unusual lawsuit at the following link: http://www.businessinsider.com/debrahlee-lorenzana-citi-2010-6


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