DOL Issues Final Rule: “Place of Celebration” Rule Now Controls for FMLA Definition of “Spouse”

by Sarah B. Wheeler

Immediately following the Supreme Court’s decision in U.S. v. Windsor,[1] the Department of Labor (“DOL”) indicated that the Family and Medical Leave Act (“FMLA”)[2] would, from that day forward, be inclusive of employees who requested leave to care for a same-sex spouse, parent of that same-sex spouse, or other related family member.[3] Initially, however, the DOL extended this coverage only to employees who currently resided in states where same-sex marriage was legal.[4] Referred to as the “state of residence” rule,[5] this meant that if the employee moved to a state where same-sex marriage was not recognized, that employee would no longer have the right to access their benefits under the FMLA[6] on the same basis.

The DOL, however, has taken an inconsistent approach as to when it applies the “state of residence” versus the “place of celebration” rule.[7] Since September 2013, the DOL has applied the “place of celebration” rule when determining Employee Retirement Income Security Act (ERISA) benefits, but not when determining FMLA benefits.[8] When interpreting the word “spouse” under the FMLA, the DOL applies the “state of residence” rule.[9] The ostensible reason that the DOL provided[10] for not applying the “place of celebration” rule was that this was the extent of the coverage that could be allowed without receiving further “administrative or judicial guidance.”[11] However, even in the absence of any further guidance, the DOL nevertheless announced on February 23, 2015 that it would be applying the more expansive “place of celebration” rule when considering the definition of “spouse” under the FMLA.[12] The effective date for the final rule is March 27, 2015.[13]

In the interim, this inconsistency has likely resulted in a deprivation of benefits for a number of employees who sought and were denied FMLA coverage on this basis. One of the key effects of the change[14] will be that now couples like Todd and TR, a same-sex couple legally married in Minnesota in 2013 who recently adopted a son, Camden, will be able to take FMLA leave to care for each other, not just for their son.[15] While the couple “were able to take unpaid, job-protected leave to care for Camden – a protection guaranteed by the [FMLA – until the effective date of the new final rule,] they might have been denied that same protection if they wanted to take job-protected, unpaid leave to care for one another.”[16]

The final rule will also affect those employees in legal same-sex marriages who wish to take FMLA leave to care for his or her stepchild.[17] Previously, a similarly situated employee could only take FMLA to care for his or her stepchild if that employee stood in loco parentis for that child.[18] Now, beginning March 27, 2015, the employee will be able to take FMLA for the stepchild even if they never stood as their effective guardian or in the place of the child’s parent.[19]

What remains to be seen is if legally married same-sex couples who had requested FMLA leave and were denied it on that basis in the interim between the Windsor decision and the March 27, 2015 effective date of the DOL’s final rule under the FMLA, will be determined to have a compensable cause of action for unjust deprivation of benefits.

[1] 133 U.S. 2675 (2013).

[2] Family and Medical Leave Act, United States Department of Labor, http://www.dol.gov/whd/fmla/ (last visited Mar. 8, 2015) (hereinafter “FMLA”).

[3] See News Release: Federal Job-Protected Family and Medical Leave Rights Extended to Eligible Workers in Same-Sex Marriage, United States Department of Labor (Feb. 23, 2015), http://www.dol.gov/opa/media/press/whd/WHD20150285.htm.

[4] See Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (hereinafter “Fact Sheet #28F”), United States Department of Labor 2 (Aug. 2013), http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf.

[5] Frequently Asked Questions: FMLA Notice of Proposed Rulemaking, United States Department of Labor, WHD, http://www.dol.gov/whd/fmla/nprm-spouse/faq.htm (last visited Mar. 8, 2015) (follow “Question #4” hyperlink); see also Family and Medical Leave Act: Final Rule to Revise the Definition of “Spouse” Under the FMLA, United States Department of Labor, http://www.dol.gov/whd/fmla/spouse/ (hereinafter “Final Rule to Revise the Definition of ‘Spouse’”) (last visited Mar. 8, 2015).

[6] FMLA, supra note 2.

[7] News & Knowledge: DOL’s Inconsistent Approach: Same-Sex Spouses Covered by FMLA Depending on State Residency, Troutman Sanders, http://www.troutmansanders.com/dols-inconsistent-approach-same-sex-spouses-covered-by-fmla-depending-on-state-residency-12-19-2013/ (last visited Mar. 8, 2015) (“Unlike other federal agencies, the DOL has taken an inconsistent approach in providing guidance for the FMLA and ERISA.”).

[8] See Fact Sheet #28F, supra note 4.

[9] See id.

[10] See id.

[11] See The White House, Statement by the President on the Supreme Court Ruling on the Defense of Marriage Act (June 16, 2013), http://www.whitehouse.gov/doma-statement (directing the Attorney General “to work with other members of [President Obama’s] Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, [are] implemented swiftly and smoothly.”).

[12] See Final Rule to Revise the Definition of “Spouse,” supra note 5.

[13] See Fact Sheet: Final Rule to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations, United States Department of Labor 1 (Feb. 2015), http://www.dol.gov/whd/fmla/spouse/factsheet.pdf (As of the date of this blog post, the full text of the rule has not been made available yet by the Department of Labor.).

[14] See News Release, supra note 3.

[15] See Thomas E. Perez, FMLA Updated for a Modern Family, Huffington Post (Feb. 23, 2015, 1:16 PM), http://www.huffingtonpost.com/thomas-e-perez/fmla-updated-for-a-modern_b_6737096.html; see also Tom Perez, FMLA Updated for a Modern Family, U.S. Department of Labor Blog: Promoting & Protecting Opportunity (Feb. 23, 2015), http://blog.dol.gov/2015/02/23/fmla-updated-for-a-modern-family/.

[16] See id. (stating that two years prior in 2011, the couple had a private ceremony and gained civil union status in Illinois, where they had moved for Todd’s work, but wed in Minnesota after same-sex marriage became legal in 2013.).

[17] See New FMLA Regulations Expand Definition of Spouse and Include Same-Sex Spouses, Jackson Lewis (Feb. 25, 2015), http://www.jacksonlewis.com/resources.php?NewsID=5083.

[18] See id.

[19] See Shira Forman, DOL Issues Final Rule Amending FMLA Definition of “Spouse” to Include Same-Sex Marriages, Labor & Employment Law Blog (Feb. 27, 2015), http://www.laboremploymentlawblog.com/2015/02/articles/leaves-of-absence/dol-issues-final-rule-amending-fmla-definition-of-spouse-to-include-same-sex-marriages/#more-2239.

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How Many “Heil Hitlers” Does It Take to Claim Title VII?

by Melissa Tsynman

A recent judgment by the Fifth Circuit Court of Appeals stirred up quite some controversy in the labor and employment world, and rightfully so.[1] Courtney Satterwhite, a former Assistant City Controller V for the City of Houston, was demoted two pay grades after reporting his supervisor for using the phrase “Heil Hitler” at a meeting.[2] After the District Court granted summary judgment to the city because “Satterwhite failed to establish a causal link between Satterwhite’s activities and his demotion,”[3] Satterwhite took his case on up to the Court of Appeals, whose opinion has many of us scratching our heads:

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII.[4]

Wait… what?! Let’s backtrack for a second. To begin, the Retaliation section under Title VII of the Civil Rights Act of 1964 offers protection for employees who oppose unlawful actions by employers, making it illegal for those employers to retaliate by way of demotion or termination.[5] However, the activity the employer engaged in must be one that is protected under Title VII, and there must be a causal link “between the protected activity” and the retaliation against the employee.[6] Ensuing the incident, Satterwhite complained to Singh’s supervisor, who verbally reprimanded Singh (though, Sing was promoted shortly after), as well as to the Anti-Defamation League, which led to an investigation by the City Office of Inspector General.[7] Singh subsequently demoted Satterwhite two pay grades after he repeatedly reprimanded Satterwhite for reasons Satterwhite believed to be an adverse response to his reporting of Singh.[8] Thus, it is evident that all three prongs of a prima facie case have been satisfied, right?

Wrong. While Satterwhite may have opposed Singh’s conduct and suffered an adverse employment action, the Fifth Circuit concluded that Singh’s “Heil Hitler” was not a protected activity under Title VII.[9] The Court explained, “Satterwhite acknowledges that Singh’s comment was a single and isolated incident. He could not have reasonably believed that this incident was actionable under Title VII, and therefore, it ‘cannot give rise to protected activity.’”[10] While the Court’s conclusion that one “Heil Hitler” is not enough may surprise most people, the more shocking conclusion is that “no reasonable employee” could have believed that the incident created a hostile work environment.[11] Given that the Fifth Circuit may have made quite a stretch here, the odds of another Circuit’s disagreeing with this conclusion are not unlikely.[12] Accordingly, employers “should proceed with caution in relying on the Satterwhite decision.”[13]

[1] See Andrew D. Peters, A Single “Heil Hitler” Not Hostile Enough, The National Law Review (Mar. 17, 2015), http://www.natlawreview.com/article/single-heil-hitler-not-hostile-enough; Eric B. Meyer, Apparently, in Texas, Your Managers Are Allowed One Free “Heil Hitler,” The Employer Handbook (Mar. 5, 2015), http://www.theemployerhandbook.com/2015/03/apparently-texas-managers-allowed-one-free-heil-hitler.html; Michael P. Maslanka, Fifth Circuit Throws a Wrench in Retaliation Claim Format, Texas Lawyer (Mar. 13, 2015, 4:00 PM), http://www.texaslawyer.com/home/id=1202720578809/Fifth-Circuit-Throws-a-Wrench-in-Retaliation-Claim-Format?mcode=1202616363777&curindex=1&slreturn=20150222132641.

[2] Satterwhite v. City of Houston, No. 14-20240, 2015 U.S. App. LEXIS 3370, at *2-3 (5th Cir. Mar. 3, 2015).

[3] Id. at *5.

[4] Id. at *7-8.

[5] See 42 U.S.C. § 2000e-3(a) (2014) (“It shall be an unlawful employment practice for an employer to discriminate […] because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”).

[6] Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (“To present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.”).

[7] Satterwhite, supra note 2 at *2-3.

[8] Id. at *3-4.

[9] Id. at *8-9.

[10] Id. at *9.

[11] Peters, supra note 1.

[12] Peters, supra note 1

[13] Peters, supra note 1; see also Meyer, supra note 1.

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To Give or Not to Give Tenure (to Teachers)…That is the Question?

by Amy Pimer

Anyone who has ever been through the public school system knows that the quality of teachers ranges from inspiring to abysmal. There are teachers who bring out the best in their students and always put in the extra mile, while there are others who get away with the most ridiculous things. A question often asked, by parents and students alike, is why the horrible teachers are still teaching. Many times the answer is tenure.

Teacher tenure “provides job security for teachers who have successfully completed a probationary period. The purpose is to protect outstanding teachers from being fired for non-educational issues including personal beliefs, personality conflicts with administrators or school board members, etc.”[1] Tenure creates a paradox for the approximate “2.3 million public school teachers in the U.S.” who have tenure because it yields “academic freedom plus job security,” but also “protects incompetent teachers from being fired.”[2] Tenure was applied to teaching positions towards the end of the nineteenth-century and was a response to teachers demanding “protection from parents and administrators who would try to dictate lesson plans or exclude controversial materials like Huck Finn from reading lists.”[3] This demand eventually lead to roughly 10,000 teachers coming together in 1887 for the first conference of the National Educator’s Association, with tenure as the main focus of the event.[4]

The purpose and support of teacher tenure is not without merit; however, it does not mean that the system is perfect. One of the major pitfalls of tenure is how difficult it makes it to fire teachers who are no longer good teachers.[5] For example, in “Connecticut [a] teacher received a mere 30-day suspension for helping students cheat on a standardized test . . . [and] a Florida teacher remained in the classroom for a year despite incidents in which she threw books at her students.”[6] In New York, a teacher with tenure is “entitled to due process rights under Section 3020a of the state Education Law.”[7] This law entitles teachers to a hearing before charges are brought, and suspension with pay until the hearing occurs.[8] With the pros and cons of “teacher tenure” in the balance, where does it currently stand?

Courts have begun the process of following some states that have already gotten rid of tenure.[9] Recently in California, a judged ruled, much to the dismay of teachers unions, “that teacher tenure laws deprived students of their right to an education under the State Constitution and violated their civil rights.”[10] While the decision of the court has the support of Education Secretary Arne Duncan, this case is likely far from over, with the teachers’ union planning to appeal.[11] Parties on both sides of the “v.” agree that there are a large amount of “grossly ineffective teachers,”[12] but is taking away tenure going to be the solution? The lawyers representing the teachers’ unions in these cases emphasize that tenure protects the good teachers and that taking away tenure is not going to fix the problems within the school system such as “social and economic inequalities.”[13]

California is not the only state looking to examine its tenure policy, as this issue was just heard in New York.[14] On Thursday, March 12, 2015, Justice Philip G. Minardo in Staten Island, NY, denied city and union officials’ motion to dismiss, allowing the suit challenging the constitutionality of teacher tenure to proceed.[15] The suit was filed last year and “contends that teacher tenure and discipline policies deprive children of their right to a ‘sound basic education.’”[16] The parents’ goal in this lawsuit is to obtain access to information regarding teaching quality and how that quality affects student success.[17] The response of the Federation of Teachers to this ruling is the same as that in California; they plan to appeal the decision.[18]

As the New York judicial system prepares to hear arguments on the issue regarding teacher tenure, there is no way to predict how it will turn out. However, if the court rules in a similar way to the court in California, it is possible that other states will follow suit and it will be an uphill battle for teachers unions to maintain tenure for their members.

[1] Derick Meador, What is Teacher Tenure?, about education, http://teaching.about.com/od/pd/a/Teacher-Tenure.htm (last visited Mar. 12, 2015) (noting that these laws vary by state, but are generally similar in the fact that they provide job security).

[2] M.J. Stephey, A Brief History of Tenure, TIME (Nov. 17, 2008), http://content.time.com/time/nation/article/0,8599,1859505,00.html.

[3] Id.

[4] See id.

[5] See id.

[6] Id.

[7] Tenure for New Teachers, United Federation of Teachers, http://www.uft.org/new-teachers/tenure (last visited Mar. 12, 2015).

[8] See N.Y. Educ. Law § 3020-a(2) (Consol. 2014) (noting that this list is not exhaustive, and more due process rights are included throughout statute).

[9] See Jennifer Medina, Judge Rejects Teacher Tenure for California, N.Y. Times, June 10, 2010, at A1, available at http://www.nytimes.com/2014/06/11/us/california-teacher-tenure-laws-ruled-unconstitutional.html.

[10] Id.

[11] See id.

[12] Id.

[13] See id.

[14] Elizabeth A. Harris, Staten Island Judge Allows Suit on Teacher to Proceed, N.Y. Times, Mar. 12, 2015, at A26, available at http://www.nytimes.com/2015/03/13/nyregion/si-judge-allows-suit-on-teacher-tenure-to-proceed.html?_r=0.

[15] Id.

[16] Id.

[17] See id.

[18] Id.; Medina, supra note 9.

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Don’t Touch Me or I’ll Sue: Another Huge Win for Unpaid Interns

by Tania V. Parker

Internships are gaining increasing recognition for their role in the current job market. While employers and the judicial system are trying to figure out whether or not interns can be classified as employees, some state legislatures have taken a bold step by granting unpaid interns some of the statutory protections offered to employees. Without these specific exceptions, unpaid interns are not granted any of the workplace protections paid employees are given.[1]

Recently, an increasing amount of state legislatures have granted unpaid interns protections from sexual harassment in the workplace. The change in legislation comes about as a response to Wang v. Phoenix Satellite Television U.S., Inc.[2] The United States District Court for the Southern District of New York ruled that because the plaintiff was an unpaid intern at the time of the alleged incident, she could not successfully bring a claim under New York State or New York City Human Rights Laws.[3] Despite having to encounter unwanted sexual advances and retaliation by her supervisor, Lihuan Wang’s claims were rebuffed and refuted by the district court.[4] The district court’s ruling is a reflection of a system where interns are neither considered nor treated as equals in the workforce.

Inspired by the disservice faced by Ms. Wang and similarly situated unpaid interns, New York State Senator Liz Krueger proposed extending sexual harassment protection to unpaid interns.[5] State Senator Krueger’s proposal makes New York one of the first states to include unpaid interns in its sexual harassment laws.[6] New York joins Oregon, Illinois, California, Michigan, and Washington D.C. as the only states and jurisdictions with passed legislation to protect unpaid interns from sexual harassment.[7] Currently, Connecticut has proposed legislation to protect unpaid interns from sexual harassment.[8] These new laws are designed to circumvent the limitations under Title VII which provide that it is unlawful to harass a job applicant or employee.[9] Interpretations of the Fair Labor Standards Act (“FLSA”) have held that unpaid interns are not deemed to be employees.[10]

These legal proposals and amendments are implemented to give unpaid interns a voice and an opportunity to state their concerns and mistreatment. The amended laws are designed to give mistreated interns the necessary options to hold their employers and supervisors accountable without fear of retaliation.[11] Without these protections, interns would be “fair game” for sexual harassment.[12] However, many believe that interns are the “least powerful” members of the company and as a result are less likely to report inappropriate actions.[13] Many interns might not want to ruin future job prospects by filing a complaint against their employer.[14] As Lihuan Wang notes, interns are “eager to please, so they’re willing to put up with a lot more unreasonable stuff during their internship.”[15]

Without the protections given to employees, interns must fend for themselves in the workplace in every possible way. Workers’ employment status should not determine whether or not they would receive protection to prevent having their civil rights violated. Without these proposed amendments to legislation, interns would be forced to face these brutal and demeaning actions without any support or a form of a remedy. As more companies are utilizing the work of unpaid interns, corresponding local governments should follow suit by enacting such legislation in order to truly protect their workforce.

[1] Aaron Taube, Some States Are Finally Making it Illegal to Sexually Harass Unpaid Interns, Business Insider, (Oct. 6, 2014, 3:20 PM), http://www.businessinsider.com/states-banning-sexual-harassment-of-unpaid-interns-2014-10.

[2] 976 F. Supp. 2d 527 (S.D.N.Y. 2013).

[3] Id. at 528.

[4] Id. at 539.

[5] Taube, supra note 1.

[6] Id.

[7] Id.; Zach Schonfeld, The Fight to Protect Unpaid Interns Against Sexual Harassment, Newsweek, (Mar. 20, 2014, 2:43 PM), http://www.newsweek.com/fight-protect-unpaid-interns-against-sexual-harassment-232567.

[8] Noah Kim, Bill Seeks to Protect Unpaid Interns in Connecticut from Sexual Harassment, Yale Daily News, (Feb. 25, 2015), http://yaledailynews.com/blog/2015/02/25/bill-seeks-to-protect-unpaid-interns-from-sexual-harassment/.

[9] Sexual Harassment, U.S. Equal Employment Opportunity Commission, (Mar. 10, 2015, 11:33 PM), http://www.eeoc.gov/laws/types/sexual_harassment.cfm.

[10] See 42 U.S.C. § 203(5) (2014); Wang v. Hearst Corp., 293 F.R.D. 489 (S.D.N.Y. 2013).

[11] Legislature Approves Plan to Extend Workplace Protections to Unpaid Interns, Oregon Live, (June 4, 2013, 6:51 PM), http://www.oregonlive.com/politics/index.ssf/2013/06/legislature_approves_plan_to_e.html.

[12] Schonfeld, supra note 7.

[13] Kim, supra note 8.

[14] Id.

[15] Schonfeld, supra note 7.

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Welcome to McDonald’s Can I Take Your Order?

by Brian Idehen

The golden arches of the McDonald’s logo have been an American staple since the first location opened in Illinois in 1955.[1] Now a global entity,[2] a traveler is able to pick up McDonald’s food in over 100 countries.[3] With great power however, comes great responsibility. McDonald’s expansion has been of great financial benefit, with the company registering just outside of the top 100 on the Forbes 500 list.[4] This ranking helps garner the company social notoriety, business cache, and, of course inevitable litigation. McDonald’s, like most companies, has found itself in a large amount of litigation, however one lawsuit in particular may have a drastic impact on the company.

In July of 2014, the National Labor Relations Board (NLRB) determined that McDonald’s is a joint employer.[5] Black’s Law defines joint employment as “a job in which the essential terms and conditions of the employee’s work are controlled by two or more entities.”[6] This ruling affects McDonald’s because the NLRB is ruling that McDonald’s controls, and would therefore be responsible for the actions of, their employees at all locations, including franchises.[7] This ruling is not consistent with McDonald’s private franchise agreements that did not create a “master-servant” relationship.[8] A master-servant relationship is one where “a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.”[9]

McDonald’s and other companies would want to contest that there is a master-servant relationship between the company and its franchises. The NLRB disagreed however, feeling that McDonald’s has control over its franchises.[10] McDonald’s should not like this result because over 80% of its locations worldwide are franchised.[11] The number of franchises McDonald’s has might explain why it has found itself in a large number of litigations since the July NLRB ruling. In the last six months, McDonald’s has had sixty-seven cases adjudicated by the NLRB, and currently there are 161 open NLRB cases where McDonald’s is a named party.[12] McDonald’s locations in open litigation since December of 2014 include restaurants in Detroit, St. Louis, New York City, Philadelphia, New Orleans, San Francisco, Los Angeles, Chicago, Phoenix, Minneapolis, and Indianapolis.[13] Since February of this year, six more franchises have been brought into litigation.[14] If McDonald’s is tasked with being responsible for the actions of their franchises, litigation could become burdensome and expensive very quickly. In addition, McDonald’s may have to change its business model altogether. If four out of every five locations can possibly bring the company into litigation, there is no doubt McDonald’s will want to create some sort of buffer between itself and its franchises.

McDonald’s has a vested interest in seeing that the NLRB decision is overturned. Until then, the company will have to deal with the NLRB’s ruling that they are joint employers in the United States. Globally, however, McDonald’s can rely on the fact that other countries have not yet (and may not ever) view their franchisor-franchisee relationship in the same manner as the NLRB. This will allow the company to at least continue to open and maintain locations under the same model internationally, retaining their reputation as one of the global leaders of fast food.

[1]McDonald’s Museums, McDonald’s, http://www.aboutmcdonalds.com/mcd/our_company/mcdonalds_history_timeline/museums.html (last visited March 2, 2015).

[2] McDonald’s Missions & Corporate Values, McDonald’s, http://www.aboutmcdonalds.com/mcd/our_company/mission_and_values.html (last visited March 2, 2015).

[3] McDonald’s — The Leading Global Food Service Retailer, McDonald’s, http://www.aboutmcdonalds.com/mcd/our_company/mcdonalds_history_timeline/museums.html (last visited March 2, 2015).

[4] Fortune 500 2014, Fortune, http://fortune.com/fortune500/mcdonalds-corporation-106/ (last visited March 2, 2015).

[5] Office of Public Affairs, NLRB Office of the General Counsel Authorizes Complaints Against McDonald’s Franchises and Determines McDonald’s USA, LLC, is a Joint Employer, National Labor Relations Board (July 29, 2014), http://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-authorizes-complaints-against-mcdonalds.

[6] Black’s Law Dictionary 604 (9th ed. 2011) (explaining joint employment with the example of a company who hires a contractor, then takes over control of the contractors employees).

[7] See Melanie Trottman & Julie Jargon, NLRB Names McDonalds as ‘Joint- Employer’ at Its Franchisees, The Wall Street Journal (Dec. 19, 2014, 6:14 PM), http://www.wsj.com/articles/nlrb-names-mcdonalds-as-joint-employer-of-workers-at-its-franchisees-1419018664.

[8] See Herbert B. Chermside, Jr., Annotation, Vicarious Liability of Private Franchisor, 81 A.L.R. 3d 764 (1977).

[9] Restatement (Second) of Agency § 2 (1958).

[10] Trottman & Jargon, supra note 7.

[11] Franchising, McDonald’s, http://www.aboutmcdonalds.com/mcd/franchising.html (last visited March 2, 2015).

[12] Organizations of Interest, National Labor Relations Board, http://www.nlrb.gov/cases-decisions/organizations-interest?organization=MCDONALD%27S (last visited March 2, 2015).

[13] McDonald’s Fact Sheet, National Labor Relations Board, http://www.nlrb.gov/news-outreach/fact-sheets/mcdonalds-fact-sheet (last visited March 2, 2015).

[14] Id.

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Caddies File Federal Lawsuit Against PGA Tour

by Brandon S. Ross

It is no secret that the PGA Tour is a multi-million dollar organization, with annual revenues consistently ranking in the hundreds of millions.[1] A significant portion of this revenue comes from corporate sponsors, who pay the PGA Tour tens of millions of dollars to have their logos plastered across the caddies’ bibs.[2] With the revenue continuing to pour in and the caddies reaping none of the benefits, they feel as though the PGA forces them to become unpaid human billboards for the advertisement of companies sponsoring the Tour.[3] On February 3, 2015, the caddies finally made their displeasure known by filing a multi-million dollar federal lawsuit against the PGA Tour in the Northern District of California.[4] The caddies are claiming the Tour unlawfully compels them to wear logos and other insignia of corporate sponsors on their bibs, and allegedly prevents them from sharing in tens of millions of dollars in annual advertising revenue.[5] In seeking redress from the federal court system,

[t]he caddies have petitioned the court to certify [Hicks, et al. v. PGA Tour Inc.][6] as a class action on behalf of all caddies residing in the United States who, without pay, wear or have worn bibs bearing the logos of the Tour’s sponsors during tournaments. This proposed class would include about [one thousand] caddies and potentially threaten the PGA Tour with hundreds of millions of dollars in damages.[7]

Although the enormity of a caddy’s role in a PGA tournament cannot be overstated,[8] the golfers, rather than the Tour, employ the caddies.[9] A contractual condition of participating in the tournaments, however, stipulates that caddies must adhere to Tour regulations.[10] This condition enables the PGA Tour to expect that the caddies wear bibs over their shirts, “which bear logos of companies paying the PGA Tour but not paying the caddies,”[11] and “are seen during television broadcasts of tournaments and are captured in photographs used in magazines and on websites.”[12] According to the caddies’ class complaint, “the bib provides the most valuable marketing medium between commercials during tournament broadcasts . . . . [And] the annual value of the bib exceeds $50 million.”[13] The caddies’ complaint also alleges that the PGA Tour

has threatened to prohibit caddies from receiving endorsement money from any sponsor that competes with Defendant’s sponsors or from any of Defendant’s sponsors who reduce their investment in Defendant because of an endorsement agreement with one or more of the Plaintiffs. Believing they have no reasonable choice but to comply with Defendant PGA [Tour’s] demands, Plaintiffs have continued to wear the bibs without compensation.[14]

The caddies’ lead attorney, Eugene Egdorf, stated that, “the PGA Tour imposes all sorts of restrictions on caddies for its benefit, yet refuses to provide the most basic of benefits . . . . [T]he caddies want their fair share of the value they provide.”[15] In addition to intellectual property and contract law claims, the caddies contend that, “the Tour has monopoly control over employment opportunities for caddies in the U.S. and has conspired with local tournament organizers to force caddies to wear bibs. These local tournament organizers, according to the caddies, selfishly stand to profit by enforcing the Tour’s rules.”[16] While the initial filing of the caddies’ federal lawsuit is merely the first step in what will assuredly be a grueling legal process, if the caddies can advance past a motion to dismiss, their hope is that the PGA Tour will opt to settle the lawsuit, rather than move forward with pretrial discovery.[17] This would likely mean, at the very least, a change in the bib policy, and perhaps substantial compensation.[18]

[1] See Monte Burke, The PGA Tour: A Not-For-Profit Money Machine, Forbes (May 8, 2013, 10:00 AM), http://www.forbes.com/sites/monteburke/2013/05/08/the-pga-tour-a-not-for-profit-money-machine/ (“According to the PGA Tour’s 990 tax form, revenues in 2011, its most recent reporting year, were $973 million.”); Beyond Tiger, The Economist (June 11, 2011), available at http://www.economist.com/node/18805531 (“Total direct revenues fell a bit between 2008 and 2010, from $486 [million] to $461 [million].”).

[2] See Darren Heitner, Golf Caddies Sue PGA Tour for Piece Of Revenue from Ads They Wear on Bibs, Forbes (Feb. 8, 2015, 12:09 PM), http://www.forbes.com/sites/darrenheitner/2015/02/03/pga-tour-sued-by-golf-caddies-for-pocketing-tens-of-millions-of-dollars/ (“The PGA Tour allegedly receives tens of millions of dollars from corporate sponsors in exchange for the advertising on the bibs.”).

[3] Michael McCann, Caddies File $50 Million Lawsuit Against PGA Tour, GOLF (Feb. 3, 2015), http://www.golf.com/tour-and-news/caddies-file-multi-million-dollar-lawsuit-against-pga-tour.

[4] See id.

[5] See id.

[6] Plaintiffs’ Original Class Action Complaint for Damages, Hicks, et al. v. PGA Tour, Inc., No. 3:15-CV-00489 (N.D. Cal. Feb. 3, 2015), 2015 WL 436042.

[7] McCann, supra note 3.

[8] See id. (“From the vantage point of a golfer, caddies are instrumental. Golfers rely on caddies for their expertise on clubs, swing techniques and course topography, among other crucial aspects of competitive golf. Caddies are also famously known for lending emotional support and counsel.”).

[9] Id.

[10] See id.

[11] Id.

[12] Id.

[13] Hicks, supra note 6.

[14] Id.

[15] McCann, supra note 3.

[16] Id.

[17] See id.

[18] See id.

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Labor Classifications in the Sharing Economy Model of Uber and Lyft

by Jillian Levitt

It was a revolutionary concept: no need to hassle with hailing a cab or even carrying cash. Uber and Lyft offer easy smartphone apps that can schedule a pick up at your location and electronically charge your credit card to pay for the ride. Many people find the services faster and more efficient than taxis. The extraordinary success of this start-up technology is reflected in Uber’s $40 billion valuation.[1]

On its website, Uber states that its services “constitute a technology platform that enables users of Uber’s mobile applications… to arrange and schedule transportation… with third party transportation providers.” [2] This economic model of classifying its drivers as third party providers rather than as employees has raised concerns among labor advocates.[3] Since drivers who make the concept of the sharing economy a reality are considered independent contractors, they receive few of the traditional benefits of employees such as minimum wage guarantees, health insurance, worker’s compensation, unemployment insurance, and the right to join a labor organization.[4] In addition, as independent contractors, drivers must pay the full cost of Social Security and Medicare taxes without any employer contribution—a cost of 7.65% of their yearly compensation.[5]

A class action complaint by drivers alleging that Uber has “misclassified [them] as independent contractors” in violation of Massachusetts law was filed on June 26, 2014.[6] Moreover, the issue of Uber’s job classification was also raised in Boston Cab Dispatch, Inc. v. Uber Technologies, Inc.[7] In Boston Dispatch, plaintiff radio dispatchers alleged that Uber was engaging in unfair competition by “operating its service without incurring the expense of compliance with Massachusetts law and Boston ordinances.”[8] Uber claimed it could not be held liable because “it does not own any cars.”[9] However, the District Court of Massachusetts found sufficient evidence that Uber was “exercising control” over the vehicles-for-hire that compete with the plaintiffs.[10]

In California, drivers of Uber and Lyft have each commenced labor classification lawsuits in federal court, alleging they should be treated as employees rather than independent contractors. In Cotter v. Lyft, the plaintiff drivers alleged that California law requires Lyft to treat its drivers as “employees rather than independent contractors” and that Lyft is “depriving them of California’s minimum wage, along with other rights that California law confers upon employees.”[11] The court in Cotter granted Lyft’s motion to dismiss the class action claims outside the state of California with leave to amend to include only the California drivers.[12] Similarly, in O’Connor v. Uber Technologies, Inc., the court, reversing its own prior ruling, concluded that the California Labor Code does not apply to class members who worked outside of California.[13] Plaintiffs in O’Connor have moved for interlocutory review of the court’s ruling to include out-of-state drivers.[14] In addition, a motion for summary judgment by Uber to dismiss based on the level of control Uber exercised over its drivers’ work is currently pending as of January 27, 2015.[15] The district court judges in both Cotter and O’Connor have indicated they are likely to let the suits proceed.[16]

The economic model that attempts to cut labor costs by classifying workers as independent contractors, instead of employees, is not unique to Uber or Lyft. One federal study concluded that “employers illegally passed off 3.4 million regular workers as contractors, while the Labor Department estimate[d] that up to 30% of companies misclassified employees.”[17] Where the law is unclear, however, employers may have a “legitimate disagreement with the Labor Department or I.R.S.”[18] In one recent case, the Ninth Circuit Court of Appeals in California held that FedEx had misclassified its drivers as independent contractors.[19] The court stated “[t]he principle test of an employment relationship is whether the person to whom the service is rendered has the right to control the manner and means of accomplishing the result desired.”[20] In finding that the FedEx drivers were employees, the court examined several secondary factors: the right to terminate at will; whether the worker had a distinct occupation or business; whether the work is performed under the principle’s direction; the skill required by the worker; the provision of tools and equipment; the length of time for performance of the services and the ongoing nature of the relationship between the worker and the principle; the method of payment; whether the work performed is actually part of the principle’s business; and the parties’ beliefs as to the nature of their relationship.[21] Whether the economic model of Uber and Lyft that classifies its drivers as independent contractors can withstand this analysis remains to be seen.

[1] Mike Isaac, Facing Demand, Uber Expands Funding Round by $1 Billion, N.Y. Times (Feb. 18, 2015, 1:17 PM), http://dealbook.nytimes.com/2015/02/18/uber-expands-funding-round-by-1-billion/?_r=0.

[2] Uber, http://www.uber.com/legal/usa/terms (last visited Feb. 21, 2015).

[3] See Rebecca Smith, Will Uber and Lyft make your job obsolete?, CNN (Feb. 10, 2015, 7:47 AM), http://www.cnn.com/2015/02/10/opinion/smith-sharing-economy-uber-lyft; see also Ellen Huet, How Uber’s Shady Firing Policy Could Backfire On The Company, Forbes Blog (Oct. 30, 2014, 10:00 AM), http://www.forbes.com/sites/ellenhuet/2014/10/30/uber-driver-firing-policy.

[4] It has been observed that in the new “sharing economy” state and local regulators are struggling to determine how they fit into their “jurisdiction and regulatory corpus.” Larry Downs and John W. Mayo, The Evolution of Innovation and the Evolution of Regulation: Emerging Tensions and Emerging Opportunities in Communication, 23 CommLaw Conspectus 10, 24 (2014-15).

[5] See Department of the Treasury, IRS, Publication 15 Cat. No. 10000 W (Circular E), Employer’s Tax Guide (2015), available at http://www.irs.gov/pub/irs-pdf/p15.pdf.

[6] Yucesoy v. Uber Technologies, Inc., No. 14-2056C, 2014 WL 2892107 (Mass. June 26, 2014) (alleging violation of Mass. Gen. L.C. 149 § 148B).

[7] Boston Cab Dispatch, Inc. v. Uber Technologies, Inc., No. 13-10769-NMG, 2014 WL 1338148 (D.C. Mass. Mar. 27, 2014).

[8] Id. at *6.

[9] Id.

[10] Id.

[11] Cotter v. Lyft, Inc., No. 13-cv-04065-VC, 2014 WL 3884416, at *1 (N.D. Cal. Aug. 7, 2014).

[12] Id. at *5.

[13] O’Connor v. Uber Tech., Inc., No. C-13-3826 EMC, 2014 WL 4382880, at *12-13 (N.D. Cal. Sept. 4, 2014).

[14] Plaintiff’s Notice of Motion and Motion to Certify Order for Interlocutory Review, O’Connor v. Uber Tech., Inc., No. CV 13-3826-EMC, 2014 WL 6471647 (N.D. Cal. Sept. 10, 2014).

[15] See O’Connor v. Uber Tech., Inc., No C-13-3826 EMC, 2015 WL 355496 (N.D. Cal. Jan. 27, 2015).

[16] Rachel Emma Silverman, Judges Skeptical of Uber- Lyft Claims in Labor Case, Wall St. J. (Feb. 2, 2015, 7:21 PM), http://wsj.com/articles/court-rulings-may-define-ride-sharing-drivers-1422922890.

[17] Steven Greenhouse, U.S. Cracks Down on ‘Contractors’ as a Tax Dodge, N.Y. Times (Feb. 17, 2010), available at http://www.nytimes.com/2010/02/18/business/18workers.html?pagewanted=all.

[18] Id.

[19] Alexander v. FedEx Ground Package Sys. Inc., 765 F.3d 981 (9th Cir. 2014).

[20] Id. at 988 (quoting S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399, 404 (Cal. 1989)).

[21] Id. at 994-96.

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#LaborRightsAreTrending

by Jacqueline Smith

Restaurant Opportunities Centers United (“ROC”) is changing the way we interact with the food industry, with the re-launch of the group’s smartphone app Diners Guide.[1] Originally created in 2012, Diners Guide provides restaurant-goers with access to information regarding a restaurant’s employees’ wages and benefits, and allows app users to enter data of restaurants that are not already rated in the system.[2] The app, referred to as the Yelp for labor rights, provides newfound transparency into restaurant employer-employee relationships.[3]

The app’s creator has been named one of the “six groups that are reinventing organized labor.”[4] ROC-NY was originally formed following the September 11, 2001 attacks, in an effort to support the displaced restaurant workers of the World Trade Center.[5] In 2008, ROC became a national movement with the goal of improving wages and working conditions for restaurant workers throughout the United States.[6] Restaurant workers are one of the most vulnerable groups in the workplace, with relatively little unionization, low wages, and high turnover.[7] Thus far, ROC has recouped more than $20 million in stolen tips and wages for restaurant workers, while also actively organizing the worker community to advocate for better workplace conditions and wages.[8] One of ROC’s original co-founders, Saru Jayaraman, likens the organization to a modernized labor union, and says the organization receives a portion of its funding from employers who wish to promote a “‘high road’ for the industry.”[9]

If the restaurant receives a good rating by the app, it is designated as a “High Road” restaurant.[10] The Diners Guide app bases its ratings off of several factors, including, whether the restaurant has paid sick days for its employees, the wages of tipped and non-tipped employees, and whether the restaurant frequently promotes employees internally.[11] For instance, a restaurant’s score increases if the servers are paid above the tipped minimum wage, which is currently set at $2.13 per hour for tipped employees. Under the Fair Labor Standards Act (“FLSA”) employers must pay a tipped employee the non-tipped minimum wage if the employee’s tips do not make up the difference between the tipped and non-tipped minimum wage; however, this is a rarely enforced provision, considering about 10% of tipped employees’ wages continually fall below the federal minimum wage.[12] By publicizing restaurant employees’ wages and workplace practices, ROC hopes to impassion patrons to pressure management to change policy and add bargaining power to the restaurant employees.[13]

According to Diners Guide, the fast food burger chains In-N-Out Burger and Shake Shack are two of the highest rated restaurants in the U.S., both with ratings of 75%. Some restaurant fast food chains already pay their workers more than the minimum wage requirement.[14] One Detroit burger chain, Moo Cluck Moo, pays workers $15 per hour, compared to the national average of $8 per $9 an hour for fast food workers.[15] The company’s founder attributes the restaurant’s high customer satisfaction and low employee turnover to the increased wages, and further adds that low turnover is better for the company financially because the employer does not waste time and money retraining new employees.[16]

The Diners Guide app exemplifies an interesting phenomenon and is a new useful tool to effect policy change. ROC’s strategy is ingenious, considering Generation Y is known for viewing “corporations as having lots of power but little heart” and the hipster era tends to “try to create change by using their dollars.”[17] In addition to going on strike, restaurant employees may now also pressure their employers by publicizing the employer’s practices on social media and influencing the consumer’s dollar.

[1] Poncie Rutsch, Like Yelp for Labor Rights: This App Rates How Restaurants Treat Workers, NPR (Feb. 12, 2015, 4:45 PM), http://www.npr.org/blogs/thesalt/2015/02/12/385739008/like-yelp-for-labor-rights-this-app-rates-how-restaurants-treat-workers.

[2] Dan Schultz, Want to Find a Restaurant That Treats Workers Well? There’s An App for That, NPR (Dec. 10, 2012, 11:22 AM), http://www.npr.org/blogs/thesalt/2012/12/10/166671273/want-to-find-a-restaurant-that-treats-workers-well-theres-an-app-for-that.

[3] Rutsch, supra note 1.

[4] Josh Israel, 6 Groups that are Reinventing Organized Labor, Think Progress (June 27, 2014, 9:51 AM), http://thinkprogress.org/economy/2014/06/27/3451317/labor-groups-outside-union-model/.

[5] Id.

[6] Restaurant Opportunities Centers United, http://rocunited.org (last visited Feb. 17, 2015).

[7] Associated Press, For Tipped Workers, A Different Minimum Wage Battle, NPR (Jun. 29, 2014, 6:45 PM), http://www.npr.org/2014/06/29/326715347/for-tipped-workers-a-different-minimum-wage-battle.

[8] Israel, supra note 4.

[9] Restaurant Opportunities Centers United, supra note 6.

[10] Diners Guide to Ethical Eating, Restaurant Opportunities Centers United, http://rocunited.org/dinersguide/ (last visited Feb. 19, 2015).

[11] ROC United, Get ROC United’s Diner Guide App!, YouTube (Feb. 3, 2015), https://www.youtube.com/watch?v=tgN-jClz1vE.

[12] 29 C.F.R. § 531.50 (2011); see National Economic Council et al., The Impact of Raising the Minimum Wage on Women and the Importance of Ensuring a Robust Tipped Minimum Wage, 6 (March 2014), available at http://www.whitehouse.gov/sites/default/files/docs/20140325minimumwageandwomenreportfinal.pdf.

[13] See Diners Guide to Ethical Eating, supra note 10.

[14] Allison Aubrey, A Burger Joint Pays $15 An Hour. And, Yes, It’s Making Money, NPR (Dec. 4, 2014, 6:46 PM), http://www.npr.org/blogs/thesalt/2014/12/04/368442087/a-burger-joint-pays-15-an-hour-and-yes-its-making-money.

[15] Id.

[16] Id.

[17] Who is the Gen Y “Hipster”?, Millennial Marketing, http://www.millennialmarketing.com/2010/01/who-is-the-gen-y-hipster/ (last visited Feb. 19, 2015).

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Publix: Where Shopping is a Pleasure . . . Because Working There is a Pain?

by Alexandra Sanchez

If you have never been to Publix, you are missing out on the eighth wonder of the world. If you have never eaten a Publix chicken tender sub, you simply have not lived. Besides the impeccable Publix deli, what is it that makes Publix such a wonderful place to shop? Unfortunately, it seems that the pleasure of shopping at Publix may be derived from its employees’ pain.

Recently, a former assistant department manager for Publix recently brought an action on behalf of current and former Publix associates against Publix.[1] Claimants allege that Publix violated the Fair Labor Standards Act (“FLSA”).[2] Plaintiffs are categorized as fluctuating workweek (“FWW”) associates.[3]

Publix used a FWW method to calculate overtime pay for the employees.[4] An FWW method is generally used by employers to divide a fixed weekly salary by the actual number of hours worked in the week.[5] This calculation determines the week’s base hourly rate.[6] Under a FWW method, overtime is paid by adding an additional halftime for each hour worked per week beyond forty hours.[7]

The plaintiff employees assert that Publix calculated their wages in violation of FLSA.[8] The employees claim that Publix failed to include quarterly and holiday bonuses, as well as other forms of compensation.[9] “The retail bonus and holiday bonus are non-discretionary bonuses as that term is defined under the FLSA, and must therefore be included in the calculation of the regular rate for the work weeks covered by the bonus,” the employees said in their second amended complaint.[10]

The workers also said the retailer’s fluctuating workweek plan did not comply with the FLSA because associates did not “receive a fixed weekly amount for all hours worked whether few or many in a work week, and instead received weekly pay in varying amounts due to the additional payment of additional compensation including but not limited to a retail bonus.”[11]

Publix denied all liability, “maintain[ing] that the associates weren’t entitled to additional overtime pay and that is overtime pay plan met the requirements of the FLSA’s fluctuating workweek calculation method.”[12] Publix reached a hefty settlement of $30 million.[13] The settlement included roughly $5,000 each for the 1,580 employees who joined the litigation.[14]

This is not the first time the world’s greatest supermarket has been subject to criticism for its labor and employment practices. Since 2009, Publix has refused to join the Fair Food Program.[15] The Fair Food Program asks companies to voluntarily agree to pay an extra penny per pound of tomatoes.[16] That extra money goes into a fund to make sure pickers get raises and safer workplace practices.[17] Publix refuses to contribute to the fund, saying “none of this is the chain’s concern . . . suppliers are free to charge [Publix] more for tomatoes, which Publix would gladly pay.”[18]

Next time your Publix chicken tender sub is being doused in buffalo sauce, think twice about whether that employee is being treated fairly.

[1] Ott v. Publix Super Mkt., Inc., 2012 U.S. Dist. LEXIS 103571 at *2 (M.D. Tenn. July 24, 2012).

[2] Id.

[3] Id.

[4] Lisa Nagele, Court Approves $30 Million Deal Settling Publix Managers’ FLSA Overtime Claims, Bloomberg (Feb. 6, 2014), http://laborandemploymentlaw.bna.com/lerc/2455/split_display.adp?fedfid=63016055&vname=lrwnotallissues&jd=a0g2h0e7x8&split=0

[5] See 29 C.F.R. § 788.114.

[6] Id.

[7] Id.

[8] Ott at *2.

[9] Id.

[10] See Nagele, supra note 4.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Florida’s Hometown Grocer, CIW, http://ciw-online.org/publix/ (last visited Feb. 14, 2015).

[16] Scott Maxwell, Publix Remains a Holdout in Fair-Wage Farm Debate, Orlando Sentinel (Dec. 6, 2014, 2:39 PM), http://www.orlandosentinel.com/opinion/os-publix-farmworkers-tomatoes-scott-maxwell-20141206-column.html.

[17] Id.

[18] Id.

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Sorry! Civil Rights Act Does Not Apply to Transgenders, and That’s Just an Employee Handbook, Not a Contract.

by Neli Kharbedia

Leyth Jamal, who used to work for Saks Fifth Avenue in Houston, TX, alleges that she was verbally abused, compelled to go to the men’s bathroom, told to look “more masculine at work,” and terminated in 2012 based on her being transgender.[1] In addition, she was continually called “he and him.”[2] According to the lawsuit, “she was told she should separate her home life from her work life.”[3] Based on documents from the court, she was fired ten days after she sought help from the Equal Employment Opportunity Commission (“EEOC”) on the grounds of being harassed.[4] Jamal asserts breach of Title VII and asks for damages from the company and to stop Saks from acting in a discriminatory way in the future.[5]

The company answered with a motion to dismiss the case.[6] According to its statement, the company claims that it did not treat the worker in a discriminatory way and that Jamal’s complaint is not based on the facts.[7] Moreover, the company stated that transgender workers are not covered by the Civil Rights Act.[8] In its motion, Saks stated “that Title VII is a ‘prohibition against discrimination based on an individual’s sex’ and ‘is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.’”[9] In addition, Saks Senior Vice President Kathleen Ruiz stated that Saks has traditionally had “policies and practices that are fully supportive of the LGBT community and [their] LGBT associates.”[10] Based on the Human Rights Campaign, Saks claims its policy is nondiscriminatory covering gender identity, but the company’s brief asserts that “it is well-settled that policies” that are included in an employee handbook do not produce a contract.[11]

The 1964 Civil Rights Act bans employers in the United States from terminating workers on the grounds of their gender.[12] However, its application to employers discriminating against transgender workers is ambiguous.[13] There is not unambiguous federal law to prohibit employers from discriminating against transgender employees.[14] In addition, Texas is not like eighteen states that have laws that include sexual orientation and gender identity in their laws against discrimination.[15]

But, in 2012, the EEOC asserted that discrimination on the grounds of gender identity is a part of sex discrimination of Title VII.[16] According to the EEOC, discriminating against a person on the grounds that the individual is transgender is sex discrimination.[17] U. S. Attorney General Eric Holder stated that the Department of Justice agrees that Title VII of the Civil Rights covers transgender individuals.[18] Moreover, although no federal law exists that bans discriminating against transgender individuals, in later years, courts have agreed that it is not legal.[19] According to Shannon Minter, legal director for the National Center for Lesbian Rights, unlike cases from around ten years ago, “[e]arly cases from the ‘70s and ‘80s were negative.”[20]

“The fight for explicit protection in federal law very much continues and those efforts are not going to go away” according to Ian Thomson, legislative representative of the American Civil Liberties Union.[21] Some have compared this to Civil Rights Movement of the 1960s.[22] However, hopefully this will be an easily won battle.

[1] See Payton Guion, Leyth Jamal: Transgender Employee Says She Was Discriminated Against By Saks Fifth Avenue, The Independent (Jan. 14, 2015), http://www.independent.co.uk/news/world/americas/leyth-jamal-transgender-employee-says-she-was-discriminated-against-by-saks-fifth-avenue-9978265.html.

[2] Katy Steinmetz, Does Saks Have the Legal Right to Fire a Transgender Employee?, Time (Jan. 12, 2015), http://time.com/3664705/saks-transgender-lawsuit/.

[3] Guion, supra note 1.

[4] Id.

[5] See id.

[6] Steinmetz, supra note 2.

[7] Guion, supra note 1.

[8] Id.; See Steinmetz, supra note 2.

[9] Guion, supra note 1; See Steinmetz, supra note 2.

[10] Josh Eidelson, Saks Claims It Has the Right to Discriminate Against Transgender Employees, Bloomberg (Jan. 9, 2015), http://www.businessweek.com/articles/2015-01-09/saks-and-company-in-legal-fight-over-transgender-former-employee; See Steinmetz, supra note 2; Meredith Hoffman, Saks Is Fighting to discriminate Against a Transgender Ex-Employee, Vice News (Jan. 13, 2015), https://news.vice.com/article/saks-is-fighting-to-discriminate-against-a-transgender-ex-employee.

[11] Eidelson supra note 10.

[12] Guion, supra note 1; 42 U.S.C.A. § 2000e-2(a)(1) (West 2014).

[13] Guion, supra note 1.

[14] Guion, supra note 1; See Steinmetz, supra note 2.

[15] Steinmetz, supra note 2; See Guion, supra note 1; Hoffman, supra note 10.

[16] Guion, supra note 1; Steinmetz, supra note 2; See EEOC, Sex-Based Discrimination, EEOC, http://www.eeoc.gov/laws/types/sex.cfm (Feb. 14, 2015).

[17] EEOC, supra note 16.

[18] Guion, supra note 1; Steinmetz, supra note 2.

[19] See Steinmetz, supra note 2.

[20] See id.

[21] Guion, supra note 1.

[22] See Hoffman, supra note 10.

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