Clicking “Private” on Your Facebook Page is Like Hiding Under the Blanket. They Can Still See You.

by Mehjabeen S. Rahman

We live in an age where not having a Facebook is somewhat unusual. Interestingly these days, a colleague with whom you are Facebook friends may even express shock or surprise when you tell them about your sister’s baby-shower last week, because the colleague “didn’t see anything on Facebook about it.” As expected, the law has had some difficulty in wrestling with how to handle social media as a tool of evidentiary value, especially in discovery disputes. To put it in perspective, imagine filing a suit against an employer, seeking damages for emotional distress caused by an employment action or treatment, and having to disclose all your social media posts from the date of the allegations to the present (remember lawsuits can take months to years). As an Indiana district court judge noted, postings on Facebook and other social media present a unique challenge for courts, because of their novelty and their ability to be shared with individuals other than the original poster.[1] Nevertheless, a court may compel the production of a party’s Facebook information if the party seeking such information makes the necessary threshold relevance showing.[2]

The most cited and seminal case in this specific area is EEOC v. Simply Storage Mgmt., LLC,[3] a sexual harassment suit where employer Simply Storage argued that all the content of plaintiffs’ social networking sites (“SNS”) is relevant and must be produced.[4] The magistrate judge held that although the contours of social communications relevant to a claimant’s mental and emotional health are difficult to define, that does not mean that everything must be disclosed. Further, the judge noted that allegations of depression, stress disorders, and like injuries do not automatically render all SNS communications relevant, but it is reasonable to expect severe emotional or mental injury to manifest itself in some social media content. Examination of that content might reveal whether the onset of distress occurred and its degree, thus the inquiry is not whether social media discovery is appropriate, rather it is the permissible scope of that discovery that is at issue.[5]

A very interesting case in this area was decided in 2007.[6] This case was a sexual harassment suit in which the employee pharmacist alleged that she suffered from severe emotional distress.[7] The plaintiff claimed it was so severe in fact, that she could not properly participate in the active litigation, and kept her from appearing at her deposition on multiple occasions.[8] The case was then dismissed for lack of prosecution[9] and in her motion to set aside that judgment, the plaintiff claimed that she was too distressed to contact her counsel or actively participate in the case.[10] Defendants submitted evidence in response to the plaintiff’s Motion to Reconsider, that consisted of her Facebook posts tailgating with friends at a football game and “enjoying the attention of young men” the very week her deposition was scheduled.[11] The Court ultimately denied the plaintiff’s motion and dismissed all the claims with prejudice, finding that she did not dispute that she was able to work during the relevant time period during she was attending parties and football games.[12]

Several district court magistrates in different jurisdictions have articulated that as a general matter, under F.R.C.P. Rule 26,[13] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.[14] The court in Tompkins, holding that Defendants’ request for Plaintiff’s entire social media account was overly broad, noted that in addition to the fact that the defendants failed to make a sufficient showing that the material sought was reasonably calculated to lead to the discovery of admissible evidence, the media page “may well contain voluminous personal material having nothing to do with this case.”[15]

What all of this really boils down is a failure to mitigate damages,[16] which makes sense because as a policy matter, a plaintiff should not be entitled to damages where s/he is posting completely conflicting evidence on social media page, even if it is private from the public but still accessible by a small group of individuals. The take-away? Post at your own risk.

[1] Higgins v. Koch Development Corp., 2013 WL 3366278 at *2 (S.D. Ind. 2013).

[2] Id.

[3] 270 F.R.D. 430 (S.D. Ind. 2010).

[4] Id. at 434.

[5] Id at 434-435.

[6] Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Nov. 13, 2007).

[7] Id.

[8] Memorandum of Law in Support of Plaintiff’s Motion to Reconsider at 4, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Mar. 12, 2009), ECF No. 99.

[9] Order Dismissing Case and to Show Cause at 4, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. Feb. 18, 2009), ECF No. 94.

[10] Memorandum of Law in Support of Plaintiff’s Motion to Reconsider, supra note 8 at 4.

[11] Affidavit of Ursula Holmes at Exhs. A-B, Elam v. Pharmedium Healthcare Corp., et al., No. 2:07CV212-P-A (N.D. Miss. May 19, 2009), ECF No. 104).

[12] Elam, supra note 6.

[13] Fed. R. Civ. P. 26.

[14] See, e.g., Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“Although defendant specified the type of evidence sought [Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence”); Mailhot v. Home Depot USA Inc., 285 F.R.D. 566, 570-571 (C.D. Cal. 2012) (“In particular, several courts have found that even though certain SNS content may be available for public view, the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view’”); Jewell v. Aaron’s Inc., 2013 WL 3770837 at *3 (N.D. Ga. 2013); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (citing EEOC v. Simply Storage) (“This Court would not allow depositions of every friend and acquaintance to inquire about every conversation and interaction with plaintiff. So too, the Court will not require plaintiff to produce all information from all her social media websites to obtain similar information.”).

[15] Tompkins, 278 F.R.D. at 388 (finding that the defendant in a slip and fall case who sought Facebook postings and photographs failed to establish relevancy of material where the material was not necessarily inconsistent with the plaintiff’s injury claims); see also Palma v. Metro PCS Wireless Inc., 13 F.Supp. 3d 1346, 1348 (M.D. Fl. 2014) (holding that Defendant’s speculation that the social media messages might include a party admission, without more, is not a sufficient reason to require Plaintiffs to provide Defendant open access to their communication with third parties).

[16] See Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167 (S.D.N.Y. 2012) (finding that online chats revealed the plaintiff’s work performance, relationships with coworkers, emotional state before, during, and after her employment, as well as her efforts to mitigate damages).

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Will McDonald’s Remove Employee Wages off the Dollar Menu?

by Alexa Zelmanowicz

Between the push by President Obama to raise minimum wage rates and the allegations of patterns of racism, McDonald’s is losing its “lovin’ it” appeal.[1] In 2014, President Obama signed an executive order that raises “the minimum wage to $10.10 for all workers on federal construction and service contracts.”[2] Although the order does not pertain to corporations like McDonald’s, the order has sparked a movement by fast-food workers.[3] Since the order was signed, fast-food workers across the country have come together with the goal of raising McDonald’s minimum wage to $15 per hour.[4] Along with the executive order, this movement has found motivation in the recent decision by the NLRB to treat franchisees and the franchisor jointly liable for labor violations.[5]

This case concerned complaints from employees of McDonald’s trying to unionize.[6] Their 181 claims, forty-three of which the NLRB board found merit, alleged that McDonald’s restaurants were “illegally firing, threatening or otherwise penalizing workers for their pro labor activities.”[7] This decision has encouraged masses of McDonald’s employees to strategize and stage protests against the company and its restaurants.[8] The goal is to raise the minimum wage to $15 and it has support from labor leaders.[9] These leaders see this as an opportunity for workers to exert enough pressure on fast food companies to stop fighting unionization and get those wages raised to $15.[10] The fast-food workers have planned a strike to occur on April 15, 2015, where it expects over 60,000 people nationwide to join in the movement it has dubbed “Fight For 15.”[11]

McDonald’s has not been totally silent since President Obama’s initiation of increasing the minimum wage and the NLRB ruling. McDonald’s has announced it plans on raising the average pay of 90,000 workers to nearly $10 per hour.[12] The problem, however, is that this raise will not affect the workers employed at franchisee-operated restaurants.[13] Despite the fact that about 90% of McDonald’s are franchisee-run, there is an expectation that these franchisees will follow McDonald’s lead and adopt the changes it has planned.[14]

In addition to the nationwide protests plaguing McDonald’s, the company faces allegations of racism and sexism in the workplace. The class action lawsuit surpasses just labor issues and delves into civil rights territory.[15] The complaint, which is filed against the three chain stores in Virginia and McDonald’s Corporation, alleges patterns and practices of racism and sexism.[16] More than a dozen McDonald’s workers were told “there are too many black people in the store” upon firing.[17] One of the ex-employees named Willie Betts, an African-American man employed with the restaurant for five years, did not understand the type of profile the employer was referencing until Mr. Betts saw the group that had been fired.[18] This group was made up of mostly African-Americans and included one Hispanic man.[19] The complaint includes racist statements uttered by supervisors.[20] In addition to the racist comments, female employees faced unwanted sexual advances, which included text messages from a male supervisor of his genitals.[21] Due to the decision made by the NLRB in 2014, the class is able to attach liability to the McDonald’s corporation as well.[22]

Will 2015 see the fall of the Golden Arches? Or will McDonald’s find a way to change before it is too late?

[1] Willie Blackmore, McDonald’s Labor Problems Have Officially Become a Civil Rights Issue, Take Action (Jan. 22, 2015), http://www.takepart.com/article/2015/01/22/civil-rights-lawsuit-mcdonalds.

[2] U.S Department of Justice: Wage and Hour Division, Fact Sheet: Proposed Rulemaking to Implement Executive Order 13658, Establishing a Minimum Wage for Contractors (June, 2014), available at http://www.dol.gov/whd/flsa/nprm-eo13658/factsheet.htm.

[3] Id.

[4] Steven Greenhouse, Movement to Increase McDonald’s Minimum Wage Broadens its Tactics, The New York Times (Mar. 30, 2015), http://www.nytimes.com/2015/03/31/business/movement-to-increase-mcdonalds-minimum-wage-broadens-its-tactics.html?_r=2.

[5] Reuters, U.S. NLRB Issues Labor Violations Complaint Against McDonald’s, Business Insider (Dec. 19, 2014, 1:31 PM), http://www.businessinsider.com/r-us-nlrb-issues-labor-violations-complaints-against-mcdonalds-2014-12.

[6] Steven Greenhouse, McDonald’s Ruling Could Open Door For Unions, The New York Times (July 29, 2014), http://www.nytimes.com/2014/07/30/business/nlrb-holds-mcdonalds-not-just-franchisees-liable-for-worker-treatment.html.

[7] Id.

[8] Greenhouse (Mar. 30, 2015), supra note 4.

[9] Steven Greenhouse, Labor Ruling on McDonald’s Has Business Worried, The New York Times (July 30, 2014), http://www.nytimes.com/2014/07/31/business/labor-ruling-bewilders-franchisers.html?_r=0.

[10] Id.

[11] Greenhouse (Mar. 30, 2015), supra note 4.

[12] Lisa Baertlein, McDonald’s Raising Average Worker wage to About $10 an Hour, Reuters (Apr. 2, 2015, 9:42 AM), http://www.reuters.com/article/2015/04/02/us-mcdonalds-minimumwage-idUSKBN0MS5A220150402.

[13] See Baertlein, supra note 12.

[14] Id.

[15] Blackmore, supra note 1.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. (quoting fired employee Destiny Betts who claimed her assistant supervisor said “she was going to get the ghetto and the rachetness out of the store.”)

[21] Id.

[22] Id.

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What Right Do You Have to Discriminate?

by Jewel-Ann O. Cornelius

The CEO of Abercrombie & Fitch stated in 2006, “We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong [in our clothes], and they can’t belong. Are we exclusionary? Absolutely. Those companies that are in trouble are trying to target everybody: young, old, fat, skinny.”[1] CEO’s must recognize that although they are entitled to manage and identify their own brands and niche markets, they must do so in a lawful manner.

In October 2014 the Supreme Court decided it would hear a case involving a Muslim teenager named Samantha Elauf, from Tulsa, OK. Ms. Elauf was not hired as a result of her wearing a hijab, which is a “traditional covering for the hair and neck that is worn by Muslim women.”[2] According to the Equal Employment Opportunity Commission (hereinafter “EEOC”), Abercrombie discriminated against Ms. Elauf when it failed to accommodate her religious beliefs by making an exception to its Look Policy.[3] Abercrombie’s Look Policy specifies that associates must dress consistent with the brand and cannot wear hats or other coverings on their head.[4] Additionally, employees are forbidden from wearing the color black—the color of the hijab Ms. Elauf wore on the interview.[5]

Abercrombie & Fitch has gotten itself into hot water over religious accommodations or the lack thereof in times past. In 2009, Umme-Hani Khan was fired after working for Abercrombie for several months.[6] During her employment, she wore her headscarf and followed the company dress code without any citations.[7] After a store visit from an upper-level store manager, she was asked twice to remove her hijab at work—she refused to on both occasions.[8] Khan was terminated for her failure to comply with Abercrombie & Fitch’s Look Policy.[9] Eleven days after Khan’s termination, Abercrombie offered her a reinstatement with the accommodation of wearing her hijab to work.[10] Khan declined the offer and filed a charge of discrimination with the EEOC.[11]

The EEOC and Abercrombie made attempts to conciliate, but Abercrombie was unwilling to incorporate language that would allow all employees to wear a headscarf.[12] Due to Abercrombie and EEOC’s inability to conciliate, the case proceeded. Ultimately, the court was not persuaded that Khan’s religious garb would have a negative effect on the business.[13] As a result, the court granted the EEOC’s motion for partial summary judgment on its claim that Abercrombie failed to accommodate Khan’s religious belief that required her to wear a hijab while at work.[14]

The United States Code sets forth: “it shall be an unlawful employment practice for an employer—to fail or refuse to hire or discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.”[15]

Employers should note that they must demonstrate their inability to accommodate a religious observance, practice, or belief without undue hardship on the conduct of the employer’s business.[16] The undue hardship defense in a claim such as Elauf’s and Khan’s would be successful only when the defense is based on facts that prove an undue hardship on the business.[17] The undue hardship cannot be a mere conceivable hardship based on one’s own subjective thinking.[18] “Rather, undue hardship requires proof of actual imposition or disruption.”[19]

Abercrombie was not able to proffer evidence that could support that its business suffered as a result.[20] There were no customer complaints about the hijab, and Abercrombie did not suffer a decrease in sales.[21] While the public awaits the Supreme Court’s recommendations, employers and employees should be mindful of the impact this will have on their futures. Employers may have to gear up to accept the changes religion may have on their brands. For employees, they may have to carefully choose where they apply for employment, and may even have to share desired accommodations during an interview.

[1] Irin Carmon, Supreme Court to Hear Abercrombie & Fitch Discrimination Case, MSNBC (Oct. 2, 2014, 3:44 PM), http://www.msnbc.com/msnbc/supreme-court-hear-abercrombie-fitch-discrimination-case.

[2] Sean Gregory, Abercrombie Faces a Muslim-Headscarf Lawsuit, Time (Sept. 23, 2009); Hijab — Definition and More from the Merriam-Webster Dictionary, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/hijab (last visited Mar. 8, 2015).

[3] Id.

[4] Id.

[5] Id.

[6] United States EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 955 (N.D. Cal. 2013).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 956.

[12] Id. at 956-957.

[13] See id. at 965.

[14] Id.

[15] 42 U.S.C. § 2000e-2(a)(1) (2014) (emphasis added).

[16] 42 U.S.C § 2000e-(j) (2014).

[17] Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978).

[18] Id.

[19] Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (citing Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 402) (9th Cir. 1978).

[20] United States EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 964 (N.D. Cal. 2013).

[21] Id. at 965.

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Supreme Court Issues New Standards for Establishing Pregnancy-Based Employment Discrimination

by Brian S. Kotkin

The U.S. Supreme Court recently issued a new test for determining whether a woman was discriminated against on the basis of her pregnancy. In Young v. UPS, Inc.,[1] the Court said that it was permissible for a Plaintiff alleging workplace discrimination under the Pregnancy Discrimination Act (hereinafter “PDA”) to establish a prima facie case of disparate treatment, by demonstrating that accommodations had been given to employees who were disabled for other reasons, but not to pregnant employees.[2]

Under the PDA, an employer may not discriminate against women “because of or on the basis of pregnancy, childbirth, or related medical conditions.”[3] However, until Young, the exact standard necessary to determine whether an employer had discriminated against an employee on the basis of pregnancy was unclear, with no less than four separate circuit court decisions providing conflicting standards for this determination.[4] For example, in Urbano v. Continental Airlines, Inc.,[5] the Fifth Circuit determined that a Plaintiff could demonstrate a prima facie case for disparate treatment through “direct evidence, statistical proof, or the test established by the Supreme Court” in McDonnell Douglas Corp. v. Green. Compare this with the Sixth Circuit in Reeves v. Swift Transp. Co., which required “direct evidence” of discrimination on the basis of pregnancy, and flatly rejected the McDonnell Douglas standard in disparate treatment cases, only implementing it in disparate impact cases.[6]

The McDonnell Douglas standard, which has traditionally applied to Title VII disparate impact claims, allows an individual to prove discrimination by demonstrating that his or her employer afforded accommodations to others of similar abilities, but which were not afforded to this Plaintiff or others of that class.[7] After that, the burden shifts to the employer to demonstrate that there was a “legitimate, nondiscriminatory reason” for the employer’s actions.[8] If the employer cannot provide such a reason, the requirement that the Plaintiff show a prima facie case of discrimination will be considered met, although if such a reason is provided, the burden falls back again on the Plaintiff to show that the provided rationale is a pretext for discrimination.[9]

In Young, the Supreme Court has taken the odd step of applying the McDonnell Douglas standard not only to disparate impact claims, but also to disparate treatment claims involving pregnancy as well.[10] This means that an employee who believes she has been discriminated against because of her pregnancy may demonstrate disparate treatment by comparing the limitations of her own condition, as well as any accommodations provided by the employer, with those who are “similar in their ability or inability to work.”[11]

This is important, in part, because punitive damages are only available in Title VII claims when the Plaintiff can prove that the discrimination is intentional.[12] Disparate treatment claims carry the element of intent, while disparate impact claims do not.[13] Applying the McDonnell Douglas standard allows the use of circumstantial evidence to prove disparate treatment, and thus the element of intent necessary to obtain punitive damages.[14] This, in turn, will likely discourage employers from engaging in this sort of discriminatory behavior in the future. In short, the Young decision drastically affects how discrimination cases under the PDA will play out, and will likely result in less pregnancy-related discrimination due to a relaxed burden of proof for demonstrating that discrimination, as well as the potential for greater damages.

[1]   No. 12–1226, 2015 WL 1310745 (S. Ct. Mar. 25, 2015).

[2]   Id.

[3]   42 U.S.C. § 2000e(k) (West 2014).

[4]   See, e.g., Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998); Reeves v. Swift Transp. Co., 446 F.3d 637 (6th Cir. 2006); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011); Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309 (11th Cir. 1999).

[5]   Urbano, 138 F.3d at 206, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[6]   Reeves, 446 F.3d at 642.

[7]   McDonnell Douglas Corp., 411 U.S. at 802-3.

[8]   Id.

[9]   Id.

[10]  Young v. UPS, Inc., No. 12–1226, 2015 WL 1310745, at *16 (S. Ct. March 25, 2015).

[11]  Id. at *15.

[12]  Kolstad v. American Dental Ass’n, 527 U.S. 526, 534-5 (1999).

[13]  Young, 2015 WL 1310745, at *16.

[14]  Id.

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Judicial Interpretations of the Americans with Disabilities Act

by Amanda M. Ward

Recently, I spoke to a Hofstra Law alumnus who has a physical disability. He spoke about the challenges he has faced since elementary school up to today, and how the law has worked toward reducing discrimination against disabled people, even though it still fails to protect many people. He asked me what I thought a disability was. This was so strange to me, as I felt one just innately knows what a disability is, or at the very least, it could be a condition that affects the way one lives. He then pointed me to some case law that shows this is not an easy question and it is something the courts have been dealing with for a while.

In PGA Tour, Inc. v. Martin, the Respondent brought a cause of action against a non-profit professional golf association that holds golf tournaments.[1] The Petitioner held a competition that consisted of four rounds.[2] During each round, the Petitioner required the players in its tournaments to walk to each hole.[3] The Respondent, who suffers from a circulatory disorder that resulted in a malformation of his right leg, entered the competition and made it to the third round.[4] The Respondent had followed the Petitioner’s rule and walked the first two rounds, but after advancing to the third round, he requested the use of a golf cart.[5] The association would not look at his medical documents and disregarded his request stating plaintiff would have to continuing walking for the third round.[6] Respondent then received an injunction to allow him to use a golf cart for the remainder of the tournament.[7]

In PGA Tour, Inc. v. Martin, it was clear to the Court that Martin was being discriminated against based on his disability. However, a new question arises: when do the rights of the Defendant come into play? The following case shows the Court’s struggle to balance the rights of the disabled with the rights of a doctor and his staff.

In Bragdon v. Abbott, the Plaintiff/Respondent was infected with Human Immunodeficiency Virus (“HIV”).[8] The Respondent went to Petitioner’s dental office to fill a cavity, and notified the dentist of her HIV infection.[9] The dentist had a policy of not filling cavities of HIV infected patients.[10] The Respondent brought a cause of action under the Americans with Disabilities Act claiming she was discriminated against due to her HIV condition.[11] The Petitioner claimed that she caused a direct threat, thus creating an exception to the Americans with Disabilities Act.[12] The Court held that HIV was in fact a disability even before symptoms manifest.[13] The case was remanded to examine the Petitioner dentist’s claim that the Respondent posed a “direct threat.”[14]

In Bragdon v. Abbott, the Court was able to clearly distinguish that the Respondent had a disability but was not sure what protection she should be afforded.[15] Although the law has acknowledged that people with disabilities need some form of protection, there are still questions left to the judicial branch that ask what is a disability, and how should the law balance the rights of the disabled and the rights of society.

[1] PGA Tour, Inc., v. Martin, 532 U.S. 661 (2001).

[2] See id. at 665.

[3] See id. at 666-7.

[4] Id. at 668-9.

[5] See id. at 669.

[6] Id.

[7] See id. at 690-1.

[8] Bragdon v. Abbott, 524 U.S. 624 (1998).

[9] Id. at 628-9.

[10] Id. at 629.

[11] Id.

[12] See id. at 629-30.

[13] Id. at 631.

[14] Id. at 655.

[15] Id.

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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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