July 31, 2015

AutoZone Sued by EEOC for Racial Classifying

The EEOC has sued AutoZone, a Fortune 500 company which employs some 65,000 people. At the center of the litigation is the firing of sales manager Kevin Stuckey.

AutoZone%20Logo-001.jpgStuckey, who is African-American, was employed at a Chicago AutoZone store in 2012. The EEOC alleges that AutoZone decided to institute a Hispanics only employment rule for that location because the neighborhood's predominate population was Hispanic and those customers might be more comfortable dealing with sales personnel of their own race. Accordingly, Stuckey was ordered to begin reporting to a different location in another part of Chicago. Stuckey refused the transfer, and AutoZone fired him.

In court, AutoZone argued that the EEOC did not have the necessary evidence to back up their allegations. Moreover, the retail giant says the EEOC has not proven that there was an adverse employment action.

The EEOC is relying upon the Civil Rights Act of 1964, Title VII of which makes it illegal to use race to segregate or classify employees. Attorneys for the EEOC argue that AutoZone's assertion that the decision to transfer Stuckey was based solely on sales figures and job performance is unsubstantiated. Although AutoZone claims that sales and performance were the only factors in the decision to transfer Stuckey, they have refused to produce the documents that would support this defense.

Statements allegedly made by Stuckey himself may undermine the EEOC's position. AutoZone produced a statement in which Stuckey claimed that he couldn't remember whether or not he had asked for a transfer to another location. Stuckey's testimony, and any supporting documentation produced by AutoZone, may seal the fate of this EEOC lawsuit.

This matter is still in its early stages. It's likely that both sides will demand to review pertinent documents and seek to depose several witnesses. The judge appointed to the case has already ordered that AutoZone must provide a list of all employees working at the two stores in question. AutoZone is also required to detail any transfer details for all of these employees. However, the judge denied the EEOC request to review compensation records for managers at both locations.

July 17, 2015

US Court of Appeals Court Reverses NLRB Ruling RE: AT&T

In a ruling that businesses are sure to welcome, a court has ruled that employers can prevent employees from wearing clothing that criticizes the company.

T%20Shirt%20Question%20Mark%2050357862-001.jpgA Washington, D.C., federal appeals court reversed the National Labor Relations Board (NLRB) 2011 ruling that AT&T was wrong to discipline employees who wore anti-AT&T shirts to service calls in customers' homes.

Originally, the NLRB ruled that the employees’ right to wear the shirts outweighed AT&T’s right to protect its reputation. The ruling tied the hands of employers to manage their own reputations in crucial ways. For example, under the ruling, employees who dealt directly with the public could express their dissatisfaction with management through messages on their clothing. Additionally, employers could no longer prohibit union messages on employees’ apparel.

However, the appeals court disagreed, citing the need for common sense in legal decisions. The recent decision pointed out that banning union messages has always been allowed when the messages can reasonably be expected to damage customer relationships or the company’s image.

In the AT&T case, the company disciplined service technicians for wearing shirts that identified them as prisoners of AT&T, even bearing an inmate number on the front. The NLRB ruling found that AT&T failed to show enough evidence that the shirts damaged the company’s relationships with customers.

The appeals court sided with the lone dissenting member of the NLRB, agreeing that it was unreasonable to require AT&T to prove actual harm from the shirts. Additionally, it ruled that the banned shirt was different from other casual shirts that the company permitted. The court also agreed that a shirt that looked from the front like a prison-issued garment was particularly inappropriate in a community that had recently experienced a violent home invasion by an escaped prisoner.

The new ruling is a step in the right direction, but employers should be cautious about managing employee clothing. The NLRB has ignored circuit court rulings that opposed them in the past. Until the Supreme Court weighs in on the matter, employers who choose to lock horns with the NBLR should be prepared to take their battle to court.

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July 10, 2015

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

A U.S. Supreme Court decision made in March 2015 has led the EEOC to issue a new enforcement guidance with respect to pregnancy discrimination. The amendments may impact employers going forward, and it's best to be aware of the changes now in order to avoid possible future complaints that could lead to lawsuits.

Pregnant%20at%20work%202822222%20%282%29.jpgPart-time worker Peggy Young sued UPS, her employer, for not providing her with reasonable accommodations in relation to her pregnancy. Her doctor wanted her to follow certain lifting restrictions. Young asserted that other workers who had been injured received accommodations similar to those she was requesting, such as light duty, but that she was denied. Her case was decided via summary judgment by a lower court, so Young took the matter to the U.S. Supreme Court. The justices ruled that UPS had committed discrimination against Young because of her pregnancy. Accordingly, the summary judgment was vacated and the case continues on.

The EEOC felt it would be beneficial to issue a new enforcement guidance on pregnancy discrimination. Much of the document remains unchanged since the July 2014 update, which was the first revision to have been made in 30 years. The amendments relate to the treatment of workers who are pregnant and include a portion that addresses light duty work for such employees.

The changes are relatively minimal and leave much of the July 2014 revision unedited. For instance, there is no change on the stance about the illegality of firing or refusing to hire someone because they are pregnant and forced leave policies are still prohibited. Similarly, employers are still required to treat both male and female employees equally when considering parental leave.

Keeping up with EEOC changes is important for human resources personnel and for anyone within an organization who may make employment related decisions. A single misstep can have serious consequences, exposing an organization to long, costly litigation that may damage its reputation. Supervisors and managers may want to consult with an employment attorney regarding these EEOC updates to ensure that they are fully understood before being confronted by these issues in the workplace.

July 1, 2015

Happy 4th of July

Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and CaliforniaBusinessLitigation.com wish all of our Clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed Friday July 3rd.

Enjoy your holiday, stay cool and keep your pets indoors!

June 26, 2015

Ohio School District and Family Settle Bullying Lawsuit

A lawsuit filed by an Ohio family on behalf of their bullied daughter has been settled. The family sued the Green Local School District in 2011, alleging that their daughter had been systematically bullied over the course of years at school.

Bully%20Stop%20Violence%2053127538-001.jpgThe 2011 complaint alleges that the student suffered abuse that included epithets like "dirty Jew" and being knocked into the lockers. Allegations of shoving, tripping and kicking are also made in the complaint. Other incidents involved a stabbing with a pencil and the creation of a hate-filled Facebook page. Two students in the district also created a kill list that prominently featured the victim's name.

The student's parents took their concerns to various school officials. Working their way up the chain of responsibility, they eventually became aware that the district was unlikely to take any real action on the case. The district had an anti-bullying policy, but the attorney for the family says that they seemed to have problems actually taking action when the policy was violated. Attorney Ken Meyers asserted that students caught bullying were only given the lightest of penalties.

The family felt that they weren't truly being heard. They pulled the student from her school and filed a lawsuit. After three years of fighting the lawsuit the district finally agreed to pay a settlement of half a million dollars. The money will be jointly provided by the school district and their insurer.

A statement from the school district announced the settlement, commenting that they "are pleased the lawsuit is now behind" them. It goes on to say that "the Board of Education condemns bullying without reservation," and that students are encouraged to report instances of bullying to administrators. Nonetheless, the district must submit to a U.S. Department of Education review of its policies as a part of the settlement. They have also agreed that teachers will receive enhanced response training.

It's always disappointing when cases like these can't be resolved in the initial stages. It's an expensive lesson for this school district, but hopefully they will be better equipped to respond to future instances of bullying.

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June 19, 2015

Will Lawsuits Force Uber and Lyft to Reclassify Drivers as Employees?

Thousands of consumers across the country have benefited from the ride services provided by companies like Uber and Lyft. They love the convenience and affordability of using these companies for their transportation needs. The arrangement is beneficial for the people who choose to be drivers as well. Their work hours are flexible, and they are free to work as much or as little as they like.

Driver%20Uber%2013410617-001.jpgUber and Lyft categorize their drivers as independent contractors rather than employees. Essentially, these companies see themselves as a conduit between customers who need transportation and drivers who are willing to offer them a ride. They don't dictate the hours that a driver works, nor do they specify how drivers must dress or what type of car they drive.

This is an attractive business model for many technology-driven, app based start-up companies. These organizations may have few assets, and classifying workers as independent contractors relieves them of the responsibility to make Social Security contributions, carry unemployment and worker's compensation insurance and pay for employee expenses like gas and maintenance.

Some Uber and Lyft drivers are banding together to demand that they be reclassified as employees. They have filed lawsuits that are aimed at achieving this goal, which would force the companies to bear considerable expenses. The expenses are so sizable that some analysts say that the businesses would simply have to fold if the courts find in favor of the plaintiffs. In essence, Uber and Lyft would have to pay enormous fines for the misclassification of employees. Additionally, they would be responsible for paying employees a minimum wage and overtime.

Proponents of the shared economy model say that the laws being applied to it are simply outdated. Because no laws currently speak specifically to regulation of peer-to-peer services and whether workers should be employees or independent contractors it's virtually impossible to make a fair and legally just conclusion.

UPDATE: Since publishing this post, a California Labor Commissioner has ruled that at least one Uber driver should be classified as an employee (WSJ article). Labor Commissioner rulings such as this rarely have any influence in lawsuits like the ones currently in front of two federal judges.

June 11, 2015

Parents, Student Sue District Over Prayers at School Events

A question regarding whether or not prayer is appropriate in public schools has led to a lawsuit in Indiana. Jim and Nicole Bellar, along with their son who is identified as J.B., filed the lawsuit in the U.S. District Court in Hammond. The complaint alleges that the school violates the First Amendment rights of J.B. and other students by praying before various events.

team%20huddle.pray%2011360771-001.jpgJ.B. is a sophomore at River Forest Jr./Sr. High School in Hammond. The school is administrated by the River Forest Community School Corp., and prayers are allegedly a regular practice at school events. The Bellars say that J.B. has been forced to pray before participating in various sporting events. Prayers were also conducted at the graduation ceremony where J.B.'s older sister was graduated last year. The Bellars regularly attend the school district's board meetings, and prayers are said before each session.

According to the Bellars the prayers all invoke God or Jesus Christ and are decisively Christian in nature. J.B. complained to his football coach about being asked to pray before games. The student was told to simply stay quiet during the prayers and was also instructed that he had to remained huddled with his teammates.

When that protest fell on deaf ears, J.B. and his father went to the district's athletics director. Eventually they took their complaint to the principal and district leaders, all to no avail. At one point J.B. was told by administrators that he should improve his cooperation with the requests of his coaches.

The Indiana ACLU stepped in to assist the Bellar's quest. While administrators turned a blind eye to the requests of the Bellar family to discontinue the prayers, it is unlikely that they can similarly ignore a lawsuit in the U.S. District Court.

If the Bellars prevail with the lawsuit, then the school district will be forced to give up its practice of holding prayers before events. They may also be asked to pay nominal damages and compensatory damages to the plaintiffs. As ACLU attorney Gavin Rose says, the prayers "represent a serious and flagrant affront to the First Amendment."

June 5, 2015

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

May 29, 2015

Compton Unified School District Challenged to Improve Educational Access

Public schools that are located in disadvantaged neighborhoods must deal with a complex problem every day. A number of their students is affected by trauma. Often this trauma is the result of being the victim of violence or witnessing violence. Sometimes the student is dealing with overwhelming poverty and unstable living conditions. Some must cope when a parent becomes incarcerated or passes away.

Psychology%20Brain%2081318172-001.jpgOne of the outcomes of this trauma is poor academic performance. Students who suffer this "complex trauma" have much greater chances of being suspended. Their grades are poor, and their attendance is spotty. Many of them never graduate. Some of them go directly from school into the jail system.

A recent lawsuit filed against the Compton Unified School District seeks to address these issues. The complaint argues that these students are suffering from complex trauma, which should be recognized as a disability. They cite evidence that children who live with trauma show different physical development in their brains and bodies as a result of this trauma. Thus, they should be considered a protected class.

Many of the children who experience trauma have behavioral problems or are overwhelmed by the conditions in which they live. The lawsuit argues that Compton Unified has not attempted to provide adequate accommodation for these students. It points out that students with obvious physical disabilities are given accommodations to make learning possible for them, and that students dealing with trauma should be similarly treated.

This lawsuit is just beginning. It seems clear that winning it will require a great deal of effort. While recognizing that the problem exists is an important first step, Compton Unified would have to come up with a comprehensive program to improve academic access for these children. The lawsuit suggests that the school district should provide mental health support for these students. Moreover, staff members should receive training that enables them to recognize trauma and deal effectively with it. A shift away from punishment for issues caused by trauma is also suggested.

Time will tell if Compton Unified will begin treating students affected by trauma as a protected class.

May 21, 2015

New York Court Approves the Use of Class Action Notification Via Social Media

More than one judge has approved the use of social media for service of process. Now a judge has approved a bid to use websites like Facebook for informing potential participants of a class action lawsuit.

Social%20Media%20Compass%2054107999-001.jpgThe New York Federal Court has decided to allow plaintiffs in the case Mark v. Gawker Media LLC to notify other potential plaintiffs of the lawsuit via social media. Gawker, which is an online media company, is being sued by a class of individuals who were once hired as unpaid interns. The interns assert that Gawker violated the Fair Labor Standards Act along with portions of New York labor law.

Plaintiffs already involved in the case felt that there were many other potential class members, yet they were uncertain how to reach them through traditional means, such as U.S. mail. They knew that many former Gawker interns were devoted to social media, and this gave them the idea that these services could be used to spread the word about the lawsuit.

Their initial proposal to the court was rejected as being far too broad and more likely to simply advertise the lawsuit than to actually target likely potential class members. Plaintiffs originally wanted to use a "GawkerInterns" Twitter account with assorted hashtags along with a LinkedIn profile. Their plan also involved Tumblr, Reddit and Facebook.

The court suggested a more personalized and targeted approach, citing that the plaintiffs' original suggestion seemed more like an attempt to punish Gawker than to provide notice to potential class members. Plaintiffs may still use Twitter, Facebook and LinkedIn, but their approach must be more specific and less public. Moreover, the notices that will be provided to other former interns will include much of the approved language that is traditionally utilized in such notices.

The New York federal court seems to be taking a prudent approach to the use of social media in legal matters. They understand that there is a fine line between appropriately advising potential class members and merely contributing to a negative online media campaign. This case may set an important precedent for future class actions.

May 8, 2015

Family Fights for Daughter to Take Marijuana Prescription at School

Teenager Genny Barbour is in an unusual situation. Diagnosed with autism and epilepsy, Genny has experienced ongoing emotional and mental difficulties as well as debilitating seizures. Her parents, Roger and Lora, spent years trying every known medical treatment. Genny had been prescribed a startling number of different drugs and even undergone brain surgery, but all those treatments were to no avail.

Medical%20Marijuana%20%2079796786-001.jpgAs a last resort Genny's doctor prescribed cannabis oil. To the surprise of the family, the treatment worked. Genny is now permitted to use medical marijuana with her mother designated as the caregiver who provides the dosages. Lora Barbour uses an eyedropper to put a small amount of cannabis oil in a glass of soda three times a day. However, the family noticed that while Genny left for school in a positive frame of mind she returned in the afternoon in a considerably different state. It was clear that her medicine was wearing off while she was at school.

Genny's doctor decided that a fourth dose of medicinal marijuana should be administered during her lunch hour. When her parents informed the school administrators immediately balked. Medical marijuana might be legal in New Jersey, but the schools are still a federally mandated drug free zone and marijuana remains illegal under federal law.

The Barbours filed a lawsuit to protest the Maple Shade School District's decision to ban the use of the cannabis oil on school property. An administrative judge agreed with the district, citing federal law to support his opinion. The family has since appealed that decision, though it appears they have an uphill battle.

In an attempt to reach a compromise, Maple Shade officials offered to allow Genny's mother to remove her from the school each day to administer the dose. Her father flatly refused the offer, noting that it would be enormously disruptive to his daughter's day and might cause terrible behavioral difficulties.

Both sides in this fight seem determined to carry the day. Regardless of which party ultimately triumphs, this case is likely to set precedents for students and school districts facing similar situations across the country.

May 1, 2015

NLRB Decision May Cause Companies to Amend Email Policies

The National Labor Relations Board made a landmark decision recently, when it ruled that employees have the right to use their employer's email system to send communications regarding union organizing.

Email%20%2081091615-001.jpgThe decision came in response to a matter involving Purple Communications of Rocklin, California. Company policy forbade employees from using the email system for "activities on behalf of organizations or persons with no professional or business affiliation" with Purple Communications.

A union was attempting to organize certain employees within Purple Communications. They filed a protest over election results at a couple of the company's worksites because the restrictive email policy prevented employees from freely conversing about the election. Union organizers also filed a complaint of unfair labor practices because employees were being restricted from engaging in a legally protected activity. An administrative law judge initially found in favor of Purple Communications, but the union organizers decided to appeal that decision.

The board reversed its decision, finding that employees who have already been granted access to a workplace email system do have the right to use that system for protected communications relating to matters about working conditions and union organizing as long as such communications were made during non-working hours. Nonetheless, companies may still have the right to restrict such emails if they can show that such a ban is necessary for disciplinary reasons or to maintain production activities.

Holding that communication is a basic building block of legal organization efforts, the board effectively reversed earlier decisions. Members of the board agreed that email is ubiquitous in the modern workplace and that it is essentially a "gathering place" for employees to discuss their rights and working conditions.

The board notes that employers still maintain the right to monitor emails to meet management objectives. Moreover, the ruling does not apply to employees who do not ordinarily have access to the company's email system or to third parties, like union organizers, who request such access. This new decision may make it necessary for employers to make amendments to existing email policies so as not to run afoul of this new precedent.

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