Shahs of Sunset Fans, Rejoice!

by Melissa Tsynman

While a majority of the country is currently freaking out over Ebola, ISIS, and Border Patrol, reality fans of the popular Bravo program, Shahs of Sunset, are impatiently waiting for the reality show to premiere after a successful three seasons. If you are one of these fans, you may be wondering whatever happened to the fourth season premiere, scheduled for October 13.[1] Yet, what fans do not know, is that the show has recently had more drama off camera than even its most jaw-dropping reunion episodes. After a recent scandal by the network, fans may be disappointed to hear that they will have to wait a little longer to see their favorite “Bravo-lebrities.”

In an attempt to appropriate “a union contract, health benefits, and representation by the International Alliance of Theatrical Stage Employees (“IATSE”) Editors Guild Local 700,” fourteen of the production and postproduction workers were fired after they walked off in a strike, in hopes to be heard.[2] If you are thinking to yourself, “That doesn’t sound legal!”- you are right. The harsh decision by the show’s production company, Ryan Seacrest Productions (“RSP”), is considered a major no-no in federal law. In fact, Section 7 of the National Labor Relations Act (“NLRA”) specifically includes strikes “among the concerted activities protected for employees by this action.”[3] Further, Section 13 also concerns the right to strike.[4] Legally, the act of firing the striking employees is formally known as retaliation, which is federally banned under the False Claims Act.[5]

However, in a sneaky attempt to create a loophole, Bravo tried pulling a fast one by nixing RSP and taking over the show itself.[6] In other words, by switching the production company to the network itself, Bravo tried to argue that the fourteen former employees of RSP were never employees of the “new” production company, who was therefore not responsible for hiring them.[7]

Not so fast, Bravo. The IATSE “filed a complaint with the National Labor Relations Board” (“NLRB”) against both Bravo and RSP for “unfair labor practices, including retaliation.”[8] Of course, the IATSE was motivated by a little more than the show’s premiere. Allowing the production companies to bypass the law in this manner could potentially set a dangerous precedent among future companies. IATSE made an example of Bravo and RSP when they stated that, “It is an egregious violation of the law for any employer to discharge or otherwise retaliate against employees for exercising their right to organize. The Editors Guild and IATSE will aggressively defend the rights of our membership against all such violations.”[9] No standing ovation for you, Bravo.

Fortunately for fans, the show must go on. On October 10, less than two weeks after the complaint was filed, the Motion Picture Editors Guild released that “The crew of Shahs of Sunset voted unanimously to ratify a union agreement, ending the month-long strike.”[10] Though the first episode of the season has yet to debut, fans can rest assured knowing that the team behind the successful show is back in action, and in full compliance with labor regulations.

[1] Dominic Pattern, Bravo Advertisers Targeted in ‘Shahs of Sunset’ Strike, Deadline (Sept. 19, 2014, 4:13 PM),

[2] David Robb, IATSE Rallies Against Bravo’s At NBC Universal HQ, Deadline (Oct. 7, 2014, 1:40 PM),

[3] The Right to Strike, National Labor Relations Board, (last visited Oct. 27, 2014).

[4] Id.

[5] 31 U.S.C. § 3730 (2012).

[6] Robb, supra note 2.

[7] Id.

[8] Id.

[9] Dominic Pattern, UPDATE: Union Blasts Bravo Over Cutting Striking ‘Shahs Of Sunset’ Editors, Deadline (Sept. 26, 2014, 3:04 PM),

[10] Dominic Pattern, ‘Shahs of Sunset’ Strike Over: Deal Ratified With Ryan Seacrest Productions, Deadline (Oct. 10, 2014, 7:37 PM),

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The Color Battles: Louboutin’s Control Over the Red Sole

by Tania V. Parker

One of the Second Circuit’s recent decisions has set the fashion industry ablaze. In Christian Louboutin S.A., L.L.C. v. Yves Saint Laurent America Holding, Inc., the Second Circuit held that a single color can serve as a trademark in the fashion industry.[1] This overturned the district court’s ruling stating that a single color does not meet the commercial purposes for trademark protection.[2] The circuit court ruled that the red sole design by Christian Louboutin qualified as being valid and enforceable under the Lanham Act.[3]

The question is whether the Second Circuit‘s decision will give Christian Louboutin a monopoly over red-soled shoes. The federal antitrust laws are meant to ban unlawful business practices.[4] For example, the Sherman Act prohibits any “restraint of trade.”[5] A “restraint of trade” is defined as an activity that prohibits a business from conducting its general business in a way that it normally would have, had there not been a restriction.[6] Antitrust laws are meant to protect competition of businesses, all for the benefit of the general public.[7] Section 2 of the Sherman Act bars companies from monopolizing, or attempting to monopolize, trade or commerce.[8] Any potential violations by Christian Louboutin would fall under this category. However, interpretations of this section demonstrate that the law is violated when a business attempts to establish a monopoly through “unreasonable methods.”[9]

Christian Louboutin has not engaged in any behavior that rises to the level of creating a monopoly. Christian Louboutin has not started buying out its competitors to create a super itinerary of shoe designers. On the opposite end of the spectrum, Luxottica, the Italian glasses company, has bought several other sunglasses companies, and also manufacturers most designer sunglasses.[10] Luxottica currently manufactures glasses for twenty-one companies, including the Google Glass, and controls 80% of the major brands in the eyeglass industry.[11] However, according to the FTC, certain “monopolistic” practices are permissible.[12] These practices are permissible so long as they do not include price fixing or other methods that substantially harm consumers.[13]

Until Christian Louboutin starts buying Stuart Weitzman, Brian Atwood, Jimmy Choo, Giuseppe Zanotti, and Steve Weitzman—in an effort to not only control, but to own the entire market for designer shoes—they should be safe from antitrust litigation. Having only one brand design (a red lacquered sole) does not constitute a monopoly. Chrisian Louboutin does not own every shoe line, nor does he price his products to drive out his competition. Having a hold on the market of red soled shoes does not take away from other shoe designers, especially if they are not and have not used red soles in their designs. But more importantly, granting trademark protection to Christian Louboutin does not adversely affect consumers.

[1] Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc. (Louboutin II), 696 F.3d 206, 228 (2d Cir. 2012).

[2] Christian Louboutin S.A. v. Yves Saint Laurent America, Inc. (Louboutin I), 778 F.Supp.2d 445, 451 (S.D.N.Y. 2011).

[3] Louboutin II, 696 F.3d at 228

[4] The Antitrust Laws, Federal Trade Commission (Oct. 26, 2014, 3:13 PM),

[5] 15 U.S.C. §1 (2004).

[6] What is “Restraint of Trade”?, Rottenstein Law Group LLP, (Oct. 26, 2014, 6:01 PM),

[7] Id.

[8] Single Firm Conduct, Federal Trade Commission (Oct. 26, 2014, 3:30 PM),

[9] Id.

[10] Christina H., 6 Secret Monopolies You Didn’t Know Run the World, Cracked (Oct. 27, 2010),

[11] Ana Swanson, Meet the Four-Eyed, Eight-Tentacled Monopoly That is Making Your Glasses So Expensive, Forbes (Sept. 10, 2014),

[12] Single Firm Conduct, Federal Trade Commission (Oct. 26, 2014, 3:30 PM),

[13] Antitrust Monopoly, Girard Gibbs LLP (Oct. 26, 2014, 6:06 PM),

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Wait . . . You Don’t Make Minimum Wage?

by Amy Pimer

The Fair Labor Standards Act (FLSA) allows employers to include potential tips earned in calculating what they need to pay their employees in order to comply the federal minimum wage requirements.[1] This is done through the process of using a tip credit, which is allows employers to provide a cash wage that is less than the federal minimum wage under § 3(m) of FLSA.[2] A tipped employee is anyone who makes more than $30 per month in tips.[3] The federal minimum wage is $7.25 an hour and the maximum tip credit available to employers is $5.12.[4] This results in an hourly rate for tipped employees of $2.13.[5] Although, if an employee works in a state that has a minimum wage higher than the federal standard, they are entitled to the higher wage.[6] But does this type of a procedure make it possible for someone to earn a living?

Currently, “[n]ineteen states use the federal $2.13 tip wage, while [twenty-four] states have set a subminimum tip wage above that. Seven other states, most of them in the West, require waiters’ base pay to be at least the state minimum wage.”[7] While there are a few states paying their tipped employees the full minimum wage, this leaves most of these employees reliant on tips to make up the difference in pay. While at first it may not seem difficult to make up for the approximate $5 per hour difference, a server’s ability to do so is based on several factors beyond his or her control. These include but are not limited to: the size of the bill, the size of a server’s station, the seasons, and the mood of customers.[8] In addition to these factors, tipped employees are often required to tip out non-tipped employees such as hostesses, bartenders, and busboys.[9] Further, tipped employees often cannot rely on steady work hours. Employers often call employees in at the last minute to deal with popular dining or drinking times, and send people home when it is slow to save on expenses.[10] Additionally, some restaurants require wait staff to pay for tables that walk out on their bills, further decreasing the amount of tipped income they take home at the end of the day.[11]

With all the above factors stacked against tipped employees, are they really making that money back on a steady basis? A bill recently went before the legislature to raise the minimum wage, which included increasing wages for tipped employees.[12] The new proposed laws “called for the tipped wage to rise gradually so that by 2020 it would equal 70% of the proposed new minimum of $10.10 an hour.”[13] This would have increased the minimum wage for tipped employees for the first time since 1991.[14] However, every House Republican and six House Democrats voted against the bill, leaving the rate unchanged.[15] After the vote, President Obama issued an executive order raising the minimum wage “for contract workers performing services and those in construction.”[16] White House spokesman Bobby Whithorne stated, “Higher wages will attract higher-quality workers who are more productive, reduce turnover, which can significantly offset the cost of providing higher wages.”[17] The executive order issued by President Obama will also require employers to “ensure that tipped workers earn at least $10.10 an hour…[and] that amount increases by 95 cents per year until it reaches 70% of the regular minimum wage.”[18] This order will take affect on January 1, 2015.[19]

This change to the minimum wage laws will help lift the burden that waiters feel, by ensuring that they actually get paid at least minimum wage. Lawmakers and legislators need to continue stay on top of updating wage standards, to prevent another twenty years from going by while tipped employees lose out on earned wages.

[1] See Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA), U.S. Department Lab. Wage & Hour Division 1, (last updated July 2013).

[2] Id.

[3] See Wage and Hour Division: Minimum Wages for Tipped Employees, U.S. Department Lab. (Sept. 1, 2014),

[4] See Wage and Hour Division, supra note 3.

[5] See id.

[6] See Wages: Minimum Wage, U.S. Department Lab., (last visited Oct. 22, 2014).

[7] See Steven Greenhouse, Proposal to Raise Tip Wages Resisted, N.Y. Times (Jan. 26, 2014),

[8] See Jeanna Smialek, Waitresses Stuck at $2.13 Hourly Minimum for 22 Years, Bloomberg (Apr. 25, 2013, 12:01 AM),

[9] See Fact Sheet #15, supra note 1.

[10] See Anna Haley-Lock, Waiting Tables for a Living: How Employers and Geography Affect Working Conditions, 30 Focus 30, 30 (2013), available at

[11] See Luke O’Neil, Victimized Twice, Slate, (last updated Dec. 9, 2013).

[12] See Will Wrigley, House Republicans Unanimously Vote Down Minimum Wage Increase, The Huffington Post, (last updated Mar. 15, 2013, 6:41 PM).

[13] See Wrigley, supra note 12.

[14] See Id.

[15] See Id.

[16] See Roger Runningen & Kathleen Miller, Obama to Raise Minimum Wage for Contractors to $10.00, Bloomberg (Jan. 28, 2014, 3:50 PM),

[17] See Roger Runningen, supra note 16.

[18] See Laura Clawson, Obama to Sign Order Raising Minimum Wage for Federal Contract Workers, Daily Kos (Feb. 12, 2014, 5:15 AM),

[19] See Clawson, supra note 18.

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Watch Your Language: How an Accent Affects One’s Employment

by Andrey Vitko

The world is becoming a more and more international place. People from all over the world immigrate to different countries – and, obviously, they need to work. It can be a bearable task to learn a different language, but some people have a hard time learning to pronounce new sounds that they did not learn when they were young.[1] The result is accent, a specific way of pronunciation of a language, associated, for example, with a particular nation or region. So the question becomes, can one’s accent affect one’s employment status?

Apparently, it can. An example is the case of an ex-Russian truck driver, Ismail Aliyev, who was allegedly fired because of his hard Russian accent.[2] Ismail and his family fled from Russia to the state of Utah, seeking political asylum as Turks.[3] He started to work as a licensed truck driver in 2009, and, as his lawyer contended, this is where the first employment problem he encountered arose.[4]

This problem occurred in September 2012, when Ismail worked for GNB Trucking Company, a small business that owns and operates FedEx-branded trucks.[5] In September, as Aliyev says, he received a warning about his accent from a weigh-station.[6] It is unclear whether Ismail passed the English language sufficiency test at the company.[7] His son, who speaks flawless English, maintains that his father passed the test, while Ben Ishhanov, a manager for the trucking outfit, stated that Ismail failed the test given in the FedEx’s office.[8]

Subsequently, Ismail Aliyev filed a lawsuit at the end of 2012, with Robert Wilde as his representative.[9] Plaintiff contended that he was fired due to his national origin, and therefore his civil rights had been violated.[10] Defendant moved for dismissal for the failure to state a claim.[11] The court found these facts:

On August 25, 2011, Ismail was stopped by an inspection officer from the Iowa Department of Transportation for an inspection.[12] Among issuing a citation for exceeding the maximum hours of service in one shift, the inspector made a report claiming that Mr. Aliyev is a “Non-English Speaking Driver.”[13] The federal requirement is that the driver “can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”[14] It further provides that “a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified.”[15]

FedEx claimed that the company fired the plaintiff on the basis of federal requirement, while Ismail states that the company was required to perform a check before dismissing him.[16] The plaintiff, however, was not able to support his claim with any law.[17] The court ruled that “this disagreement . . . does not give rise to any inference that FedEx Ground terminated him on the basis of national origin, especially in light of the language of the regulations, which could arguably support FedEx Ground’s decision.”[18] Subsequently, on April 3, 2014, The United States District Court for the District of Utah granted the defendant’s 12(b)(6) motion.[19]

Ismail Aliyev may have lost this case, but there are more language-related violations happening and probably many more will happen, as the U.S. Equal Employment Opportunity Commission estimated that the percentage of workplace discrimination complaints based on national origin rose by 76% from 1997 to 2011, with more than 11,800 complaints filed.[20] Only time will tell, how many more claims will be filed, if the trend stays.[21] And the trend is likely to stay, as more and more people travel and work around the world.

[1] Betty Birner, ed., Why Do Some People Have an Accent?, Linguistic Society of America, (last visited Oct. 24, 2014).

[2] Alanna Byrne, 5 labor and employment issues to watch in 2013, Inside Council (Jan. 25, 2013),

[3]Discrimination Against Foreign Accents: A Growing Problem, Associated Press (Nov. 30, 2012, 8:55 AM), available at

[4] Id.

[5] Sami Martin, FedEx Driver Fired Over Accent Files Suit, Claims Discrimination, The Christian Post (Nov. 29, 2012, 8:04 AM),

[6] Id.

[7] FedEx fires driver over Russian accent, lawsuit says, Associated Press (Nov. 28, 2012), available at

[8] Id.

[9] Complaint Against All Defendants, Aliyev v. Fedex Ground Package Sys., Inc., No. 2:12-CV-1079-TC, 2014 WL 1338583 (D. Utah, 2014), ECF No. 2.

[10] Aliyev, 2014 WL 1338583, at *1.

[11] Id.

[12] Id.

[13] Id.

[14] Id.; see also General Qualifications of Drivers, 49 C.F.R. § 391.11(b)(2) (2014).

[15] Aliyev, at *1; see also 49 C.F.R. § 391.11(a).

[16] Aliyev, at *2.

[17] Id.

[18] Id., at *5.

[19] Id., at *9.

[20] Paul Foy, More Workers Claiming Job Discrimination Over Language, Accents, Insurance Journal (Dec. 4, 2012),

[21] See id.

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V.32 Symposium (Misclassification): Recap of Panel No.3

by Charles Smith

Evolution of the Unpaid Internship

Internships, as explained by Michael Tompkins, could be traced back to the times of apprenticeships.[1] Even though the use of internships is a common tool utilized by today’s employers, internships were virtually unheard of when the Fair Labor Standards Act (“FLSA”) was enacted, [2] and the catalyst that promotes today’s use of unpaid internships stems from the recession.[3] There is no specific number, but it is assumed that at least half a million Americans hold unpaid internships every year.[4] Unpaid internship positions started with admirable intentions, and allowed individuals to demonstrate a genuine interest in a company and particular position.[5] The intern benefited by being offered an opportunity to show potential, and the employer got an individual who was able to hit the ground running once fully employed.[6] While the use of internships has been beneficial, the potential abuse of unpaid internships led to several cases of first impression as well as legislative efforts to regulate the use of unpaid internships.[7]

Evolution of the Legal Status of the Unpaid Intern

Under federal law, the standard under which employees are required to be paid is the Fair Labor Standards Act.[8] It requires both minimum wage and overtime hours to be paid.[9] FLSA defines employee broadly – “any individual employed by an employer,” and uses words such as “to suffer or permit to work.”[10] Internships have evolved from the FLSA standard under the Supreme Court case Walling v. Portland Terminal Co., which recognized that the FLSA definition does not make all persons who, without any express or implied compensation agreement, work for their own advantage on the premises of another “employees.”[11] The court made the determination that certain individuals who work for the employer might not actually be covered under the FLSA; these individuals were classified as “trainees,” which has evolved into today’s classification of unpaid interns.[12] The factors the court looked to in determining whether the individuals were considered trainees included: no immediate advantage to the employer, required close supervision, individual’s work did not expedite the company business, and the individual was not guaranteed positions.[13]

In April 2012, the U.S. Department of Labor came out with a six-factor test to determine whether an individual was an employee or unpaid intern at for-profit companies. The test was as follows:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern does not displace regular employees, but works under close supervision of the existing staff;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The first factor describes that the internship position must be educational in nature. The second, third, and fourth factors are the most important due to the fact that the majority of litigation involves those factors.[14] The Department of Labor has taken the position that every single element must be met for a position to be classified as unpaid internship, but, according to Amy Melican, there has been established test in the Second Circuit and the Department of Labor test should be viewed as a guideline.[15]

Since the U.S. DOL released the test that serves as a guideline in determining whether an intern should be paid, several other states has released their own tests: New York included, which came out with an eleven factor test that resembles the federal test.[16] Several industries have pushed back against the regulations—in particular, the legal industry—which utilized unpaid legal students to do work.[17] The Department of Labor responded to the criticism by allowing law students to do pro-bono work, but law students are not allowed to work on paid client work and activities.[18]

Court interpretations have varied among the circuits including a “totality of the circumstances test,”[19] “primary benefits to each party test,”[20] and the “economic reality test.”[21] In Reich v. Parker Fire Protection, the court concluded that individuals were not entitled to pay after they were instructed to do several tasks that firemen would normally do after they were given some training. The court stated that from the totality of the circumstances it concluded that they were not employees, and thus, gave deference to the DOL six-factor test. In Solis v. Laurelbrook Sanitarium, the court regarded the DOL test as a poor indicator of whether an individual was an employee, and boiled the determination down to who was the primary beneficiary in the relationship. In the more recent case of Kaplan v. Code Blue Billing & Coding, students sued Kaplan saying they should be paid for their work, and the court employed an economic reality test in its conclusion.[22]

The arguments used in favor for unpaid interns include: investment in training of future talent, continued development and engagement of future talent for the industry, allows students to go through less scrutinized process to gain experience in new field, students can learn the industry, decide whether they want to pursue a career in that field, students can apply classroom learning in “real-world” environment, provides networking opportunities for students, and allows companies to “give back” by through education/community service.[23] The arguments against unpaid interns include: makes it harder to find entry level work if companies can hire unpaid interns to fill roles, creates economic glut if companies do not offer paid positions for entry level workers, disadvantages lower socioeconomic classes who cannot afford to have unpaid positions, may result in students incurring additional debt, and unpaid interns do not have access to company-sponsored health and other benefits.[24]

Effect of Academic Credit

By offering academic credit to a worker who is nonpaid, a presumption of educational benefit to the intern is created. The DOL stated that, “the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience.”[25] But the fact that the interns received academic credit was given little weight by the court: “[a] university’s decision to grant academic credit is not a determination that an unpaid internship complies” with wage and hour laws.[26] Including an academic component and oversight furthers that presumption of educational benefit, such as memorandums of understandings (“MOUs”) between field placement/supervising personnel at the college or university and employers.[27] MOUs can include language relating to the educational objectives, supervision expectations for frequent written and oral feedback and assessment, the obligations to help the student achieve specific learning goals, and a prohibition on billing for student work.[28]

A local example of academic credit for student work, as stated by Chris Caruso, is the externship program at the law school.[29] Each employer seeking law students to work for school credit is vetted by law school administrators.[30] The administrators employ standards closely related to the DOL six factors.[31] There are some schools, though, which instituted a policy of not awarding credit for internships to undergraduates, such as Yale and Harvard.[32] Students have been known to actually take summer courses at a different school, which allows unpaid externships, because they believed the program to be beneficial.[33]

Collective Action/Class Actions

Standards for Rule 23 certification are extremely difficult in the present environment.[34] The possible claim from a single case would not produce the type of damages lucrative enough for each case to be litigated individually.[35] Thus, class or collective actions are necessary, and firms are looking to the courts in determining how to create a cohesive class.[36] The inquiry as to what binds the class together is an ongoing determination.[37] As well, it has been difficult to find named plaintiffs to join as class members for fears of being blacklisted, and not finding a job.[38] Finally, federal courts do not favor the creation of class actions, so any developments in this area will be in the local courts.[39]

Minimizing Risk When Using Interns

To minimize risk, employers should maintain documentation regarding the intern’s understanding that his or her activities will bot be compensated.[40] Employers should, as well, track internship hours and the work that is being performed.[41] Creation of MOUs should be utilized when academic credit is connected to the work.[42] Also, if the intern ultimately transitions to a paid position, the employer should expand or differentiate between the work done as an intern.[43]

[1] Michael Tompkins, Senior Associate, Leeds Brown Law, PC, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[2] Id.

[3] Amy F. Melican, Senior Associate, Proskauer Rose LLP, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[4] Tompkins, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Melican, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Meryl Kaynard, General Counsel, CUNY Queens College, Speaker at Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[15] Melican, supra note 3.

[16] Id.

[17] Id.

[18] Id.

[19] See Reich v. Parker Fire Protection Dist., 992 F.2d 1023 (10th Cir. 1993).

[20] See Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011).

[21] See Kaplan v. Code blue Billing & Coding, 504 Fed.Appx. 831 (11th Cir. 2013).

[22] Melican, supra note 3.

[23] Tompkins, supra note 1.

[24] Melican, supra note 3.

[25] Kaynard, supra note 13.

[26] See Glatt v. Fox Searchlight Pictures, Inc., 293 F.R.D. 516 (S.D.N.Y. 2011)

[27] Kaynard, supra note 13.

[28] Id.

[29] Christopher J. Caruso, Associate Dean for Career Services, Maurice A. Deane School of Law at Hofstra University, Remarks at the Hofstra Labor & Employment Law Journal Symposium Unpaid Interns on the Misclassification of Workers (Oct. 24, 2014).

[30] Id.

[31] Id.

[32] Melican, supra note 3.

[33] Id.

[34] Tompkins, supra note 1.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Melican, supra note 3.

[41] Id.

[42] Id.

[43] Id.

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V.32 Symposium (Misclassification): Recap of Panel No.2

by Jacqueline A. Smith

Does Your Employer Owe You an I.O.U.?

Employers that have at least two employees, and revenue of at least $500,000 in annual sales or business, are subject to the Fair Labor Standards Act (“FLSA”).[1] The FLSA creates additional guidelines for the employer in the interest of protecting employees’ rights.[2] The extent of an employee’s rights often hinge on their classification in the employer-employee relationship, i.e.: part-time versus full-time, independent contractors, etc.[3] The FLSA classifies employees into one of two categories to determine their eligibility for overtime payments: exempt and non-exempt.[4] This classification is significant because non-exempt employees are entitled to overtime payments, whereas exempt employees are not.[5] Due to dense and confusing case law on the subject, many employers wrongfully classify their employees as exempt.[6] Thus, many employees are paid less than they should be, and many employers are vulnerable to litigation and damages based upon the misclassification.[7] In fact, most large employers, including many big-box retail stores, have been hit with litigation based on the exempt versus non-exempt classifications, and most have been forced to pay back-wages based on lost overtime.[8] Employers may argue three primary categorical exemptions that their employees may fall under: executive, administrative, or professional.[9] If the employer prevails in proving that their employee falls under one of these categories, then the employee is exempt from overtime wages.[10]

For many years, big retailers were the primary target of misclassification claims; however, there has recently been a rise in “mom-and-pop” stores as the named defendants in such cases.[11] Many employers wrongfully believe that their employees are exempt from overtime wages merely because the employee is paid a salary; the fact that an employee is salaried is not determinative of their classification and can lead to major liability issues.[12] This problem commonly arises in the cases of retail managers.[13] For example, an assistant manager at a supermarket who regularly works over forty hours a week, is a salaried employee, and who spends the majority of their work time in nonsupervisory roles stocking shelves, would likely be deemed to be a non-exempt employee and qualify for overtime pay.[14] Many employers would wrongfully conclude that since the employee is salaried and holds the title as an assistant manager, the employee should be categorized under the executive exemption and not qualify for overtime.[15] But even with the many tests the courts have put forth, the bottom line is usually – what are the daily tasks of the employee?[16] As explained in the example, the assistant manager was primarily conducting non-supervisory work, and thus, that is an important factor to consider for whether an employee qualifies under the executive exemption.[17] An employer needs to carefully consider and monitor the work of their managers in order to determine whether they qualify as an exempt employee.[18] The classification of an employee as exempt or non-exempt hinges on the primary duties of that employee, the employee’s role in management, any concurrent duties of the employee, and the employee’s supervisory authority.[19]

Damages may be significant in misclassification cases, especially in light of the rise in class and collective action cases.[20] Money damages are calculated based on one of two methods in misclassification cases, either under the fluctuating work week method, or the non-fluctuating work week method.[21] Under either calculation the loss of pay and resulting damages can be thousands of dollars per year for the average salaried employee.[22] In New York State, an employee may receive damages for miscalculated pay, looking back six years.[23] Furthermore, if the employee wins, the employer must pay for the employee’s attorney’s fees. [24]

The problem is further complicated because in the case of store managers, if the employer misclassified the employee as exempt, the employer likely does not have time records for that worker because they were paid on a salaried basis.[25] The panelists urged that even if the employer thinks their employee is exempt it is recommended that the employer keep time records of the employee, because otherwise the court will accredit the employee’s version of hours worked.[26]

[1] Justin Marino, Associate, Littler Mendelson, P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Holly Rich, Associate, Littler Mendelson, P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[10] Id.

[11] Marino, supra note 1.

[12] Id.

[13] Rich, supra note 9.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Marino, supra note 1.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Irv Miljoner, Dist. Dir., U.S. Dep’t of Labor/Wage and Hour Div., Long Island Dist. Office, Justin Marino, Associate, Littler Mendelson, P.C. & Holly Rich, Associate, Littler Mendelson, P.C., Speakers at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

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V.32 Symposium (Misclassification): Recap of Panel No.1

by Alexa Zelmanowicz

Misclassification of Independent Contractors

The 2014 Hofstra Labor & Employment Law Journal annual Symposium focused on the misclassification of workers. One of the most common misclassifications is the misclassification of employees as independent workers. A panel of three highly respected and successful attorneys took the stage to discuss how and why misclassifying puts both workers and the public at a disadvantage.[1] Ms. Terri Gerstein, Mr. Jeffrey M. Shlossberg and Mr. Christopher A. Nicolino led the panel on Misclassifying Independent Contractors.

The cost of business is cheaper for an employer when workers are classified as independent contractors.[2] An employer does not have to pay FICA, unemployment insurance, OSLA, paid sick leave, health insurance, and the like, for independent contractors.[3] The unfortunate truth is that often employers misclassify a worker, in bad faith, to save money on taxes and expenses.[4] The obvious disadvantage for workers is that they do not receive entitled benefits.[5] A worker may be operating under the assumption that he or she is, in fact, an employee and may reasonably rely on federally mandated insurances.[6] The panel highlighted the most harmful effect purposeful misclassification has on the public.[7] When a business does not consider its workers as employees, the business is able to save money on employee spending and taxes.[8] These practices result in honest business owners having a competitive disadvantage against bad-faith competitors.[9] A disadvantage for the public is taxes that should be paid for unemployment insurance are not.[10] This state level problem results in good-faith citizens having to make up the difference of the millions in necessary unemployment taxes.[11]

The test for determining classification primarily focuses on “Direction and Control” by the employer on the employee.[12] Examples of direction and control are: 1) employer creates schedule, 2) employer supplies tools, 3) payment methods, such as hourly pay, and 4) the work that is being performed by the worker is directly related to the subject matter of the business.[13] When an employer creates the schedule, the scales tip towards employee status.[14] The same is true when the employer supplies tools and pays hourly.[15] Mr. Schlossberg stated that it is particularly strong evidence of employee status when the worker is performing duties and creating goods that are essentially the subject matter of the business. [16]

Several states are cracking down on the practice of misclassifying workers.[17] In some states, if an employer does not have insurance for someone it should, the employer is charged $2000 for each ten-day period.[18] In Florida, to avoid under the table payments, every time a business cashes a large check, the Attorney General is alerted.[19] There is a particular focus on the construction industry when it comes state mandated regulations and fines. New York and California recently enacted legislation that gives a presumption of employee over independent contractor in for construction disputes.[20] All three-panel members spoke highly of states that are becoming leaders in a new frontier for protecting employees as well as the public. The increase in attention to misclassification has the panel members’ optimistic towards the future.

[1] Terri Gerstein, Jeffrey M. Shlossberg and Christopher A. Nicolino led the panel on Misclassifying Independent Contractors.

[2] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Att’y General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Attorney General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014); Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[8] Gerstein, supra note 2.

[9] Id.

[10] Terri Gerstein, Labor Bureau Chief, Office of N.Y. State Attorney General, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014); Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[11] Christopher A. Nicolino, Deputy Bureau Chief, Labor, Ins. & Revenue Crimes Bureau, Office of the Suffolk County Dist. Att’y, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[12] Jeffrey M. Schlossberg, Counsel, Jackson Lewis P.C., Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Christopher A. Nicolino, Deputy Bureau Chief, Labor, Ins. & Revenue Crimes Bureau, Office of the Suffolk County Dist. Att’y, Speaker at the Hofstra Labor & Employment Law Journal Symposium on the Misclassification of Workers (Oct. 24, 2014).

[18] Id.

[19] Id. (explaining that this is done to make sure workers are not being paid under the table

[20] Id.

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United States v. Windsor: A Tipping Point in the Battle for More Inclusive Statewide Employment Discrimination Policies?

by Sarah B. Wheeler

The Defense of Marriage Act (hereinafter, “DOMA”), which became law in 1996, contains two main substantive sections.[1] Section 2, entitled “Powers Reserved to the States,” provides in sum that no state will be required to recognize a same-sex marriage that was legally performed in another state, if same-sex marriage is not also recognized in that state.[2]

Section 3 lists the “Definition of Marriage” as:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.[3]

Effectively, Section 3 of DOMA “defined marriage for federal purposes as between one man and one woman”[4] (emphasis added). Both sections of DOMA have remained continuously in effect since 1996,[5] until the recent decision in United States v. Windsor.[6] In Windsor, the Supreme Court held Section 3 of DOMA unconstitutional.[7] However, the Court’s decision did not address any issue related to Section 2, as this was not brought before the Court.[8]

In the wake of the Windsor decision, a number of rulings have been issued[9] overturning state bans prohibiting same-sex marriage. Similarly, previously undecided cases on the issue were subsequently decided in favor of plaintiffs who challenged state laws prohibiting same-sex marriage.[10] For example, the plaintiffs in Bishop v. Smith[11] brought a case against the Oklahoma state law prohibiting same-sex marriage. Ultimately, the United States Court of Appeals for the 10th Circuit held in Bishop that the Oklahoma law, prohibiting same-sex marriage, was unconstitutional.[12] Similarly, in Kitchen v. Herbert, a Utah state constitutional amendment, that defined marriage as a union exclusively between a man and a woman, was held to be unconstitutional.[13] On October 6, 2014, the Supreme Court denied certiorari[14] for both cases, as well as five other cases, regarding issues of marriage equality.[15] These denials allowed that Circuit’s decision “recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.”[16]

The overturning of Section 3 of DOMA has broad implications not just for marriage equality, but also for employment discrimination policies.[17] An increase in challenges to state constitutional bans on same-sex marriage has not, however, translated into a marked increase in the number of challenges to statewide or citywide employment discrimination policies that do not include sexual orientation or gender identity in the protected categories.[18]

On the national level, the policy appears to be toward promoting the abolishment of these types of laws.[19] Not long after the Windsor decision, President Obama issued an executive order prohibiting federal contractors from engaging in employment discrimination on the basis of sexual orientation.[20] Despite this executive order, to date there has been no federal legislation enacted, much less proposed, to ban “on-the-job discrimination based on [the basis of] gender identity.”[21]

What remains to be seen is whether there will be an uptick in challenges to non-inclusive statewide and citywide employment discrimination policies. Thus far, only one challenge in these parameters has been made. In Kansas, the Roseland Park city council recently ruled to include “gender identity” in their anti-discrimination policy.[22] However, even in that instance, the challenge was a close call.[23] The city’s mayor broke a 4-4 tie within the city council.[24] To put Roseland Park’s ruling in perspective, only one other town in the entire state of Kansas now currently includes “gender identity” in its anti-discrimination laws that are inclusive of employment discrimination laws.[25]

[1] Family Research Council, (last visited Oct. 12, 2014) (stating “DOMA had two substantive provisions: Section 2 . . . and Section 3.”).

[2] See 28 U.S.C. § 1738C (1996) (providing that “[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”).

[3] 1 U.S.C. § 7 (1996).

[4] The Imminent Demise of Section 2 of the Defense of Marriage Act, Justia, (last visited Oct. 12, 2014).

[5] Caitlin Sandley & Stanford Moore, Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA, American Bar Association (Feb. 11, 2013),

[6] United States v. Windsor, 133 U.S. 2675, 2696 (2013).

[7] Id. at 2696.

[8] Id. at 2683.

[9] History and Timeline of the Freedom to Marry in the United States, Freedom to Marry, (last visited Oct. 12, 2014).

[10] See Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. Okla. 2014); see also Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).

[11] Bishop, 2014 U.S. App. LEXIS at 13733.

[12] Id.

[13] Kitchen, 961 F. Supp. 2d at 1181.

[14]Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times (Oct. 6, 2014), at A1, available at

[15] Id.

[16] Baskin v. Bogan (7th Cir.), Constitutional Accountability Center, (last visited Oct. 12, 2014).

[17] See Id.

[18] See Kansas town bans discrimination based on sexual orientation, gender identity, LGBTQNATION (Aug. 5, 2014),

[19] See Allissa Wickham, EEOC Files Historic Sex Bias Suits For Transgender Workers, LAW360 (Sept. 25, 2014), (last visited Oct. 12, 2014); see also DOL Releases Final Rule To Hike Contractor Minimum Wage, LAW360 (Oct. 24, 2014), (“Obama signed an executive order barring contractors from discriminating based on sexual orientation or gender identity.”).

[20] DOL Releases Final Rule To Hike Contractor Minimum Wage, supra note 19.

[21] Id.

[22] Kansas town bans discrimination based on sexual orientation, gender identity, supra note 18.

[23] Id.

[24] Id.

[25] Id. (stating that Lawrence is the only other city in Kansas that includes this in its anti-discrimination laws).

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Is the Next NBA Lockout Looming?

by Brandon S. Ross

On October 6, 2014, the National Basketball Association (“NBA”) publicly announced that it had reached a nine-year exclusive media-rights deal with ESPN and Turner Sports, worth an eye-popping $24 billion.[1] Starting with the 2016-2017 NBA season, ESPN and Turner Sports will pay the NBA $2.6 billion per year – a 180% increase over the last deal.[2] To put this into context, when the NBA reached its last television deal back in 2007, which was worth around $930 million, it represented a mere 21% increase from the previous one.[3] While the deal will have a minimal effect on the fans,[4] you can bet that there is one group of people that it will have a major impact on – the players.

After a lengthy, 149-day lockout in 2011 that wound up costing the NBA twenty-six games out of a possible eighty-two,[5] the players union and the owners eventually agreed to a Collective Bargaining Agreement (“CBA”) that would last for ten years, with an opt-out provision that the players could exercise after six years[6] – the exact same time that the new television deal kicks in. Should the players decide to opt out of the current CBA in 2017, many NBA pundits believe that this time around, the players will use the massive infusion of wealth from the new television deal, as leverage to negotiate for a bigger piece of the basketball-related income (“BRI”) that they relinquished to the owners in 2011.[7] The main reason that the owners were able to increase their share of BRI during the 2011 negotiation period was that twenty-two out of thirty of them were losing money, and that overall losses in the 2010-2011 season added up to about $370 million – a figure that made cutting the players’ share a top priority for the owners.[8]

During the negotiations that will inevitably take place after the 2016-2017 NBA season, look for the players to aggressively demand back much, if not all, of the BRI they surrendered in 2011. When asked about the new multibillion-dollar media deal, NBA superstar LeBron James made a pointed statement by asserting that, “[t]he whole thing that went on with the negotiation process was that the owners were telling us that they were losing money. There is no way they can sit in front of us and tell us that right now.”[9] Fellow NBA legend and future Hall-of-Famer Kobe Bryant took to Twitter to voice his opinion on the matter: “[p]layers are ‘encouraged’ per new CBA to take less to win or risk being called selfish [and] ungrateful while [NBATV] deal goes [up] by a [billion].”[10] Perennial NBA all-star Kevin Durant added, “[t]hat’s a lot of money. I don’t see how the owners can say they’re losing money now.”[11] These sentiments, uttered by arguably the three most polarizing figures in the NBA, sent shockwaves throughout the entire league. It let the owners know that once the negotiation period in the summer of 2017 rolls around, the players are going to do what they do best: come ready to play.

[1] See Bill Littlefield, NBA Inks New $24B TV Deal: Lockout Likely, Only a Game (Oct. 11, 2014),

[2] Id.

[3] Kevin Draper, What the NBA’s Insane New TV Deal Means for the League and for You, Deadspin (Oct. 6, 2014, 2:49 PM),

[4] See Only a Game, supra note 1 (“For fans nothing really is going to change. . . . But basically you’ll continue to watch the NBA the same way you have for the last decade.”).

[5] Paul D. Staudohar, The Basketball Lockout of 2011, Monthly Lab. Rev., Dec. 2012, at 28, available at

[6] Id. at 32.

[7] See id. (explaining that the 2011 CBA resulted in a 50-50 split of BRI between players and owners, with the players’ share dropping from 57% under the previous CBA).

[8] Id. at 30.

[9] Harvey Araton, Owners’ Poverty Claims Are History, James Says., N.Y. Times, Oct. 7, 2014, at B12.

[10] Kobe Bryant, Twitter (Oct. 7, 2014, 12:42 PM),

[11] Darnell Mayberry, Twitter (Oct. 7, 2014, 12:36 PM),

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EEOC’s Current Enforcement Guidance on Pregnancy Discrimination

by Neli Kharbedia

To emphasize that it is unacceptable for employers to discriminate against their employees based on pregnancy, the Equal Employment Opportunity Commission (EEOC) released enforcement guidance regarding pregnancy discrimination.[1] According to the authorities of the EEOC, because more employees sued and prevailed based on pregnancy discrimination, the EEOC decided to explain employers’ duties based on the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).[2]

Under the PDA, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes [. . .] as other persons not so affected but similar in their ability or inability to work.”[3] Most courts agree that it is consistent with the PDA for employers to accommodate pregnant employees “the same as similarly situated, non-pregnant employees.”[4] Similarly, the Fourth Circuit in Young v. UPS[5] decided that employers’ decisions are consistent with the PDA when there is no difference in how employers treat their pregnant and non-pregnant workers.[6] A pregnant employee, in Young v. UPS, was denied an accommodation, as her employer only provided light duty to its employees eligible under the ADA or to employees who were injured while working.[7]

The Supreme Court has agreed to re-examine the Fourth Circuit decision in Young v. UPS, in which the PDA does not obligate employers to accommodate pregnant employees with light duty when the employer provides light duty to some non-pregnant employees.[8] The new guidance issued by the EEOC disagrees with this idea.[9] According to the EEOC’s new guidance, under the PDA, employers have to provide light duty to their pregnant employees, if employers provide light duty to their nonpregnant employees with similar capacities to work.[10] It is not important if the impairment is because of “pregnancy, disability or injury” . . . “the focus is on whether the employees have a similar ability or inability to work.”[11] Thus, according to David Fram, director of ADA and equal employment opportunity services for the National Employment Law Institute in Denver, “the EEOC has imported an obligation under one federal statute—the ADA’s reasonable accommodation requirement—into another law, the PDA.”[12]

According to Kentucky law student Jennifer Yue, obligating employers to provide accommodations may have disadvantages for employers who employ women who need light duty accommodations.[13] The employers’ productivity may decline by accommodating their employees with light duties, and some small businesses may need to “creat[e]” work for pregnant employees.[14] Moreover, according to the EEOC, the ADA protections may apply to some disabilities connected to pregnancy, “if they substantially limit one or more major life activities” even though pregnancy is not a disability.[15] Meanwhile, Sheerine Alemzadeh has argued that pregnancy should be considered as a disability, and cases should be decided separately to decide if pregnancy influences an employee’s “major life activities.”[16]

Employers have to provide reasonable accommodations, unless it is an “undue hardship” for an employer to accommodate its employee.[17] Some examples of the reasonable accommodations for pregnant women are reallocating parts of the job that are not mandatory to other employees, changing employers’ practices, changing schedule, permitting an employee to work while at home, giving extra leaves, providing equipment, and offering a light duty.[18] Because 2008 changes to the ADA offer protection for more types of disabilities, it was expected that short-term disabilities associated with pregnancy that cause limitations related to work would be considered “substantially limiting.”[19] Therefore, since before the new guidance most of the employers did not interpret PDA as including “a reasonable accommodation obligation,” employers need to change their old practices.

[1] Steven Greenhouse, Equal Opportunity Employment Officials Take New Aim at Pregnancy Bias, N.Y. Times (July 14, 2014),

[2] Id.

[3] 42 U.S.C.A. §2000e(k); EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues, EEOC (July 14, 2014),

[4] Rozlyn Fulgoni-Britton & Joel P. Schroeder, Tackling the Challenges of Accommodating Pregnant Workers Under the Pregnancy Discrimination Act and the Americans with Disabilities Act, 61-FEB Fed. Law. 35, 35 (2014).

[5] Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted 134 S. Ct. 2898 (2014).

[6] Supra note 4.

[7] Id.

[8] Kevin P. McGowan, EEOC Issues New Enforcement Guidance on Pregnancy Bias, bna (July 15, 2014),

[9] Susan L. Nardone & Michael J. Riccobono, EEOC “Delivers” Guidance on Pregnancy Discriminaiton, metrocorpcounsel (Aug. 25, 2014),“delivers”-guidance-pregnancy-discrimination.

[10] McGowan, supra note 8.

[11] Nardone & Riccobono, supra note 9.

[12] McGowan, supra note 8.

[13] Jennifer Yue, Note, The Flood of Pregnancy Discrimination Cases: Balancing the Interests of Pregnant Women and Their Employers, 96 Ky. L.J. 487, 501, 502 (2007-2008).

[14] Id.

[15] McGowan, supra note 8; EEOC, Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC, (last visited Sept. 26, 2014).

[16] Sheerine Alemzadeh, Claiming Disability, Reclaiming Pregnancy: A Critical Analysis of the ADA’s Pregnancy Exclusion, 27 Wis. J.L. Gender & Soc’y 1, 3, 4, 12-17, 35 (2012).

[17] EEOC, supra note 15.

[18] Id.; McGowan, supra note 8.

[19] Nardone & Riccobono, supra note 9.

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