Pregnancy in the Workplace: A Labor of Love

By: Christen Kalkanis

In 2014, a New Jersey publication was released explaining how legislative findings show that pregnant employees are more vulnerable to discrimination in the workplace than other employers.[1] For example, an employee requesting an extra break during her workday due to her pregnancy was either subject to unpaid leave or termination.[2] Because of this, the Equal Employment Opportunity Commission (hereinafter “EEOC”) has decided to step in and create more stringent rules affording pregnant employees more rights and protections when requesting certain accommodations during their pregnancies.[3]

Pregnancy discrimination in the workplace occurs when an employer discriminates against an employee or prospective employee on the basis of pregnancy or childbirth.[4] Due to the Title VII of the Civil Rights Act of 1964 and further amendments by the Pregnancy Discrimination Act, any acts of a discriminatory nature relating to an employee’s pregnancy is strictly prohibited and enforced by the EEOC.[5] A person is discriminated against when an employer refuses to hire or subsequently fires a pregnant applicant or employee, treats a pregnant employee differently than others, or commits various other acts of similarly related conditions.[6]

On June 25, 2015 the EEOC distributed a press release stating that they have updated their pregnancy discrimination guidance.[7] The press release referenced the use of the U.S. Supreme Court’s recent decision in Young v. UPS to outline the policy reasons for the recent changes made related to pregnancy discrimination.[8] In Young the employee brought action against employer United Parcel Service, Inc., alleging that employer had subjected her to pregnancy discrimination in violation of the Americans with Disabilities Act (hereinafter “ADA”) and the Pregnancy Discrimination Act (hereinafter “PDA”) by refusing to accommodate her pregnancy-related lifting restriction.[9] After the employee appealed a district court decision, certiorari was granted.[10] The Supreme Court vacated and remanded the Appellate Court’s decision stating that Young provided evidence showing “a genuine dispute as to whether the employer provided more favorable treatment to at least some employees whose situation could not be distinguished.”[11]
Due to the newly amended guidelines, employers in various states should now expect more pregnancy accommodations requests in 2016.[12] Specifically, New Jersey is now required to provide additional protections to pregnant employees suffering from disparate treatment when there is “evidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification.”[13] For example, a pregnant employee will now be granted more bathroom breaks, periodic rests throughout the workday, and extra breaks for increased water intake.[14] Although only sixteen states, the District of Columbia, and four cities have passed laws requiring employers to provide reasonable accommodations to pregnant workers, these guidelines are expected to be adopted by all fifty states by the end of 2017.[15]

[1] Amber Spataro, Lison Andolena, & Jessica Agarwal, New Jersey Employers Face New Pregnancy Accommodation Requirements, Littler (Feb. 7, 2014), https://www.littler.com/new-jersey-employers-face-new-pregnancy-accommodation-requirements.

[2] See generally id.

[3] See Press Release, U.S. Equal Employment Opportunity Commission, EEOC Issues Updated Pregnancy Discrimination Guidance (June 25, 2015)(on file with author).

[4] Your Rights: Pregnancy Discrimination, Workplace Fairness (Dec. 2009), https://www.workplacefairness.org/pregnancy-discrimination#3. (last visited Jan. 19, 2016).

[5] Id.

[6] Id.

[7] Richard L. Connors, 2016: The Year Ahead for Employers, Jackson Lewis, Jan. 2016, at 2.

[8] Press Release, U.S. Equal Employment Opportunity Commission, EEOC Issues Updated Pregnancy Discrimination Guidance (June 25, 2015)(on file with author); see also Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015).

[9] Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1349 (2015).

[10] Id. at 1350.

[11] Id. at 1340.

[12] See Richard L. Connors, 2016: The Year Ahead for Employers, Jackson Lewis, Jan. 2016, at 6.

[13] See U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2015).

[14] Id.

[15] See Richard L. Connors, 2016: The Year Ahead for Employers, Jackson Lewis, Jan. 2016, at 6.

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The Employment Law Game is About to Blow Up: A Look At How The Conflict in the Middle East Is Affecting Employment for Middle Easterners

By: Jesse Fishman

If you don’t live under a rock you might have heard about a little conflict in the Middle East, and by little conflict, I mean the one that has been going on for a few thousand years and may a hot topic during the political debates of 2015 and 2016.[1] The candidates in those debates field questions about foreign policy and immigration policy and how they will deal with Muslims if elected President.[2] In December of 2015, amidst the growing fear from events taking place in the United States and abroad, the Equal Opportunity Employment Commission (“EEOC”) issued two informational question and answer guidance documents about employees who are perceived to be Muslim or Middle Eastern.[3] The documents were issued to remind employers that discrimination based on nation of origin, race, or religion violated Title VII of the Civil Rights Act of 1964.[4] The documents take you through a series of hypotheticals that include when a woman wears a hijab, when someone calls a co-worker a terrorist, and religious accommodations.[5] Also, in the guidance documents it is noted that employers cannot make applicants or employees undergo additional security clearance checks.[6] The documents also note that the discrimination practices also apply to people who appear to be from the Middle East or are Muslim.[7] These publications were issued because of the real fear of Muslim radicalization or as some refer it as Muslim extremism.[8]

Do Americans feel this way about Middle Easterners more so than other groups because they view them as being loyal to their home countries as opposed to the United States? Professor Angelo Ancheta thinks so, “Arab Americans [and Latinos] are other groups whose locations in the American racial landscape are defined by foreignness.”[9] For example, in a Chicago suburb, protesters marched on a mosque chanting “U-S-A” because they believed a mosque is something un-American.[10]

The proportion of full-time employed Muslim compares very similar percentage wise to the general public.[11] “But underemployment is more common among Muslims than in the general public; 29% of Muslims are either unemployed and looking for work or working part-time but would prefer to have full-time employment, compared with 20% of adults nationwide who are in these circumstances.”[12] Younger Muslims, under the age of 30 have a much higher unemployment rate than older ones.[13] Is this because employers are fearful, that when interviewing Muslim applicants they might be hiring the next San Bernadino shooter? It just might be.

[1] See Washington Post Staff, The CNN Democratic debate transcript, annotated, The Washington Post (Oct. 13, 2015) https://www.washingtonpost.com/news/the-fix/wp/2015/10/13/the-oct-13-democratic-debate-who-said-what-and-what-it-means/.

[2] See Id.

[3] Susana Knutsbon Gibbons, The National Law Review (Jan. 24, 2016) http://www.natlawreview.com/article/eeoc-cautions-employers-about-discrimination-against-employees-who-are-or-are. Of note, one document was for employers, and the other for employees.

[4] See id.

[5] Chair Jenny R. Yang, Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern, guidance document, EEOC, (Dec. 23, 2015),http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm

[6] Jeffrey D. Polsky. EEOC Issues New Guidance Document on Discrimination Against Muslims, Caliornia Employment Law: Comments on Issues Facing California Employers, (Jan. 5, 2016), http://californiaemploymentlaw.foxrothschild.com/2016/01/articles/discrimination/eeoc-issues-new-guidance-on-discrimination-against-muslims/.

[7] Id.

[8] Susana Knutsbon Gibbons, The National Law Review (Jan. 24, 2016) http://www.natlawreview.com/article/eeoc-cautions-employers-about-discrimination-against-employees-who-are-or-are.

[9] Angelo Ancheta, Race, Rights, and the Asian American Experience, 64 (Rutgers University Press, 1998).

[10] Ghada Quaisi Audi, Challenges Facing the Arab American Community from a Legal Perspective, (2008), http://www.asjournal.org/52-2008/challenges-facing-the-arab-american-community-from-a-legal-perspective/#sdfootnote2sym.

[12] Id.

[13] Id.

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Are you a babe?

By: Mary Morandini

On September 17, 2015, the New Jersey Appellate Division upheld the Borgata’s personal appearance standards (“PAS”), holding that the policy did not violate New Jersey Law Against Discrimination (“LAD”) because the law does not encompass allegations of discrimination based on weight, appearance, or sex appeal.[1] In short, the Borgata can discipline a group of employees, known as the BorgataBabes, for gaining weight, or otherwise failing to meet the other aesthetic requirements enumerated in the PAS. The BorgataBabes are a specialized group of cocktail servers dressed in costume which debuted with the Borgata Hotel, Casino & Spa in Atlantic City in 2003.[2] The BorgataBabes were created to differentiate the Borgata from the Atlantic City competition by bringing the Las Vegas style to Atlantic City. The group was intended to represent the “fun, upscale, sensual, international image” of the Borgata brand.[3]

The initial PAS policy from 2003 required the BorgataBabes’ weight, both men and women, be “proportional to height” but this provision was amended in 2005,[4] which now requires employees to maintain a maximum weight within seven percent of their personal weight.[5] The PAS policy further requires employees to adhere to strict grooming and appearance requirements.[6] Women are expected to have a natural hourglass shape,[7] while men should have a V-shape,[8] and all BorgataBabes must be physically fit.[9] If employees failed to meet any these standards, there was the threat of suspension for up to 90 days.[10]

Notwithstanding the threat of being reprimanded for failing to comply with standards relating strictly to physical appearance, the complainants[11] felt the PAS discriminated against women, that they were being treated as sex objects, and ultimately were not being treated equally compared to their male counterparts.[12] While the court recognized the Borgata’s PAS were a rather archaic stereotype of male and female physiques, the LAD did not provide the kind of protection the female complainants were seeking. For a gender discrimination complaint to withstand dismissal the plaintiff(s) must prove, beyond a preponderance of evidence that he or she is (1) a member of a protected class; (2) qualified for and performed the essential functions of the job; (3) has suffered adverse employment action; and (4) others outside of the protected class did not suffer similar adverse employment action.[13]

Unfortunately, the court found that discipline for non-compliance of the weight standard was equally applicable to both the male and female BorgataBabes.[14] The evidence produced at trial additionally provided no support to the claim that the PAS imposed an unequal burden on one gender over the other.[15] Thus, the PAS was not discriminatory against women and was a “reasonable dress and grooming code” considering the nature of the industry, as provided by the New Jersey statute.[16]

There is one saving grace however, the Appellate Division reversed the lower court’s dismissal of the plaintiff’s hostile work environment claims.[17] Although they were unable to prove the Borgata’s expectations on their appearance were discriminatory, these women may still have an opportunity to speak out about the pressures of being a BorgataBabe.

[1] Schiavo v. Marina District Development Co., 2015 N.J. Super. LEXIS 156, 4 (2015).

[2] The Borgata was the first casino to open in Atlantic City in over a decade. Id. at 5.

[3] Id.

[4] See Michael H. Dell & Mary B. Rogers, The Curious Case of ‘Borgata Babes,’ Law360 (Oct. 23, 2015, 12:18 PM), https://www.law360.com/appellate/articles/715134/the-curious-case-of-borgata-babes-.

[5] See Schiavo, 2015 N.J. Super. LEXIS at 9 (“[T]he original requirement to ‘maintain approximately the same physical appearance’ as when hired.”). See also, Dell, supra note 3 (noting that weight was determined either on the date of hire for new employees, or in 2005 following amendment to the policy for current employees).

[6] See Schiavo, 2015 N.J. Super. LEXIS at 7 (including a healthy smile, being physically fit and various facial hair specifications for men).

[7] Dell, supra note 3.

[8] Schiavo, 2015 N.J. Super. LEXIS at 7 (meaning broad shoulders and a slim waist).

[9] Id.

[10] Bryce Covert, Court Allows Casino to Punish Employees for Gaining Weight, ThinkProgress (Sept. 18, 2015, 10:50 AM), http://thinkprogress.org/economy/2015/09/18/3703065/borgata-babes-loss/.

[11] The complainants were twenty-one women who worked as BorgataBabes under the 2005 policy. Schiavo, 2015 N.J. Super. LEXIS at 10.

[12] See id. at 49 (“Defendant’s evidence reflected only twenty-five of 686 women, or 3%, were disciplined, and none of the forty-six men were disciplined.”).

[13] Id. at 19.

[14] Id. at 49 (refuting the fourth element for a sex discrimination case, men were subject to the same standards as the female complainants). The court also found that there was no protected class relating to weight. Id. at 30-1.

[15] See id. at 37 (finding that both male and female BorgataBabes were subject to the same weight standard).

[16] See id. at 31 (“Nothing in this provision shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards[.]”). See also, Dell, supra note (noting the impact of the courts holding is limited to the specific facts as relating to the Borgata and the casino industry).

[17] Schiavo, 2015 N.J. Super. LEXIS at 57-8.

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Up Up and Away into the Cloud!

By Ashtyn Hemendinger

The Cloud is a nebulous subject matter for many. One may wonder, what is the cloud and even more so, what does the cloud have to do with employment law? To answer the first question, the cloud is a collection of larger servers located elsewhere (e.g., data centers) and maintained by a vendor.[1] The data or application becomes accessible to users anywhere there is an Internet connection.[2] If you’ve used Gmail or a Dropbox, then you have experienced the Cloud.

Devices and the Cloud are being incorporated not only into people’s personal lives, but also into their work lives. More and more companies are switching to cloud-based technology systems for daily tasks and to streamline work product.[3] In the past, businesses would have to purchase software licenses and install programs on in-house computer servers.[4] Employees could access the software through a local area network and data was stored directly on the computers and servers.[5] In fact, “several cloud computing applications, such as web email, Wiki applications, and online tax preparation,” have become common uses for work and personal experiences.[6] With the increase in cloud computing application in the workforce, issues arise that involve employment law and security.

One cloud concern that employers should be aware of is wage and hour claims.[7] The cloud has further enabled employees to work outside the traditional office setting.[8] While laptops and smart phones broke the traditional office setting mold a while ago, cloud based computing goes one step further.[9] The Cloud allows workers access to email accounts and confidential files from any location and at any time. In situations where employees need to log all of their work hours, this out-of-office work creates a gray area for compensation.[10] Having an employee send a document over the weekend or check their email after-hours may not seem like a big deal, since it only takes a few minutes. However, these tasks can really add up.[11] If employees are not compensated for these tasks, employee complaints or suits could follow.[12]

To solve this issue, employers need to track employees’ out-of-the-office work to ensure that employees are not taking advantage of this privilege. Policies about when employees can use cloud-based software should be implemented by the company’s HR and IT departments.[13] However, due to the Cloud being a new topic in the workplace, the policies out there in the workplace at the moment are far from perfect. As time goes on, the employment world will have to adjust to the developing cloud technology and the issues that arise as a result.

[1] Web & Collaboration Overview, Bell Canada (2015), http://www.bell.ca/shop/SB_viewCustom.page?pageId=SB_WHAT_IS_CLOUD_COMPUTING.

[2] Daniel Schwartz, Cloud Computing and Employment Law: The Unchartered Sky, Connecticut Employment Law Blog, (June 23, 2009), http://www.ctemploymentlawblog.com/2009/06/articles/cloud-computing-and-employment-law-the-uncharted-sky/

[3] 2011 CIO Agenda Findings, Gartner, http://www.gartner.com/technology/cio/cioagenda_findings.jsp (last visited Oct. 15, 2015) (stating that almost half of all CIOs expect to operate their applications and infrastructures via cloud technologies within the next five years); Law Firm Software Solution, Rippe & Kingston Law Firm Management Solutions (2012), http://www.legal.rippe.com/LMS.

[4] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[5] Id.

[6] Cloud Computing, Electronic Privacy Information Center (2015), https://epic.org/privacy/cloudcomputing/.

[7] Five Employment Law Considerations in “The Cloud,” Epstein Becker Green Take 5 Newsletter (Mar. 19, 2014), http://www.ebglaw.com/news/five-employment-law-considerations-in-the-cloud/.

[8] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[9] Id.

[10] See id.

[11] Id.

[12] Cloud Concerns For Employers Part 1, McBrayer, McGinnis, Leslie & Kirkland PLLC (May 13, 2014), http://mcbrayeremploymentlaw.com/2014/05/13/cloud-concerns-for-employers-part-1/.

[13] Ian C. Schaefer, 5 Employment Law Considerations When Cloud Computing, Law360 (Apr. 8, 2014), http://www.law360.com/articles/523645/5-employment-law-considerations-when-cloud-computing.

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To Be or Not To Be, Motivated to Teach, That Is The Question

By: Adam Solomon

The comedic yet tragic evolution and near dissolution of the American Dream and valued education is upon us. “Teaching was once said to be a vocation.”[1] Perhaps it is the joy of teaching students how to write and learn, and helping students grow and mature.[2] People used to get into the teaching field to make a difference, to help kids, or to meet new students and thrive in an atmosphere of change and flexibility.[3] Unfortunately, times have changed in terms of education, and there has been an even growing downside for teachers. “Classroom teachers, especially those who are just out of college and entering the profession, are more stressed and less valued than at any previous time in our history.”[4] With substandard pay, politicians bashing and belittling their ability, being blamed for a lack of improvement in student grades based on arbitrary standards, and consistently faced with threats of losing benefits, never achieving tenure, and a fleeting glimpse of an ever more unobtainable notion of a pension,[5] it becomes harder and harder to fathom why anyone would still want to pursue a career as an educator. This quandary continues to widen as the devaluation and de-emphasis of classroom teachers continues to grow under the Common Core Standards.[6]

Ideally, Common Core standards are designed to create a higher level of thinking and prepare students for success in college, their careers, and life.[7] States were forced to adopt these national standards through the threatened withholding of federal grants.[8] Unfortunately, the sad reality has shown that much like the past failure of the No Child Left Behind policy, Common Core will only succeed in pushing more kids out of high school than it will prepare for college, while simultaneously punishing good teachers in the process.[9] Part of the implementation of these standards requires the use of the Common Core tests to evaluate teachers.[10] This inaccurate and unreliable practice only serves to further the assault on teaching, instead of renewing it as a profession.[11] Relying on tests results to evaluate teachers will have the natural effect of causing teachers to teach only to the test.[12] Teaching clearly isn’t what it used to be for public schools, but this dilemma doesn’t end there.

[T]he new standards have made learning more difficult across the board, especially for special educations students. . . . [T]he new standards represent a “developmentally inappropriate curriculum” for special education students and has had the additional effect of []taking away from schools’ and educators’ ability to really focus on differentiated and individualized sort of goals for those students.[13]

“The Common Core requires special-needs students to achieve the same level of academic proficiency as their nondisabled peers, despite these students needing up to 30–40 additional days of instruction to learn the same material.”[14] And of course, the inability of these students to adequately perform on a level well above their means, will cause teachers to receive failing evaluations and thereby less job security. “Teachers who receive ineffective ratings for two consecutive years may face an expedited dismissal process.”[15] The firing or “letting go” of teachers is one negative result of the new direction of teaching, but another perhaps more alarming one is the fact that teachers are simply leaving the profession all together, and some just can’t get out fast enough.[16] “A mass exodus is happening in k-12 education. Research shows that 50% of new teachers leave the job before year 5. That number is consistent across the country and represents a giant chunk of the workforce. According to [a] study conducted by Alliance for Excellent Education.”[17] Teachers being blamed for the problems of their students, and education as a whole, is enough to make them walk out the door.[18] But contributing to the list of reasons accounting for this massive turnover and possible future extinction of teachers are unsupportive administration and parents, unrealistic goals, tying teacher pay and evaluation to test scores, failing to give teachers the resources they need to do their job, and holding teachers accountable for things that are out of their control.[19] The hands’ of teachers are being tied behind their backs and then they are penalized for not being able to satisfactorily carry out their job.

“Several big states have seen alarming drops in enrollment at teacher training programs.”[20] The enrollment of teachers in California is down 53% over the past five years, with sharp declines in New York, Texas, and North Carolina as well.[21] “The erosion is steady. That’s a steady downward line on a graph. And there’s no sign that it’s being turned around.”[22] “Throw in the erosion of tenure protections and a variety of recession-induced budget cuts, and you’ve got the makings of a crisis. . . And students are hearing this. And it deters them from entering the profession.”[23] Based on the harsh standards inflicted on teachers, the shattering of their morale, the robbing of their hopes and dreams of fostering the young minds of future generations or simply being allowed to educate, and the lack of any change in sight, it is no wonder that there is a decline in the number of teachers, and a deterrent effect on those who want to be teachers altogether. If this downward trend continues, the question will no longer be why would anyone want to pursue a career as an educator, but rather who, if any, will be left willing to teach?

[1] Gerry Sutton, Column: I Don’t Teach For ‘Good Money’ or ‘Cushy Holidays’, TheJournal.ie (Oct. 16, 2013, 7:30 PM), http://www.thejournal.ie/readme/i-dont-teach-for-good-money-or-cushy-holidays-1129059-Oct2013/.

[2] Randy Turner, A Warning to Young People: Don’t Become a Teacher, The Huffington Post (Apr. 9, 2013, 4:58 PM), http://www.huffingtonpost.com/randy-turner/a-warning-to-young-people_b_3033304.html.

[3] See CTI Career Search, What It’s Really Like to Be an Elementary School Teacher, Teaching Community, http://teaching.monster.com/careers/articles/9638-what-its-really-like-to-be-an-elementary-school-teacher (last visited Oct. 21, 2015).

[4] Turner, supra note 2.

[5] See Id.

[6] Id.

[7] See Myths VS. Facts, Common Core State Standards Initiative, http://www.corestandards.org/about-the-standards/myths-vs-facts/ (last visited Oct. 21, 2015).

[8] The Trouble With the Common Core, Rethinking Schools (2003), http://www.rethinkingschools.org/archive/27_04/edit274.shtml.

[9] Id.

[10] Id.

[11] Id.

[12] See Pamela Engel, This May Be The Biggest Problem With America’s ‘Common Core’ Education Standards, Business Insider (July 4, 2014), http://www.businessinsider.com/heres-the-biggest-problem-with-common-core-2014-7.

[13] Heba Kanso, Common Core: What’s Right for Special Education Students?, CBSNEWS (Apr. 16, 015, 5:41 AM), http://www.cbsnews.com/news/common-core-whats-right-for-special-educations-students/.

[14] Lauren Mitchell, The Unexplored Standards: Common Core’s Impact on Special-Needs Education, HSLDA (Feb. 2, 2015), https://www.hslda.org/docs/news/2015/201502020.asp.

[15] Amanda M. Fairbanks, Common Core: Will Test-Based Teacher Evaluations Derail the Common Core?, The Hechinger Report (Jan. 8, 2015), http://hechingerreport.org/will-test-based-teacher-evaluations-derail-common-core/.

[16] See Kathleen Jasper, Why Half of the Nation’s New Teachers Can’t Leave the Profession Fast Enough, ConversationED (Dec. 29, 2014), http://conversationed.com/2014/12/29/the-reason-50-of-new-teachers-are-leaving-the-profession-isnt-complicated/.

[17] Id.

[18] See Id.

[19] See Id.

[20] Eric Westervelt, Where Have All the Teachers Gone?, nprEd (Mar. 3, 2015, 2:03 PM), http://www.npr.org/sections/ed/2015/03/03/389282733/where-have-all-the-teachers-gone.

[21] Id.

[22] Id.

[23] Id.

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Does Your Employer “Like” Your Social Media Presence?

By: Fatima Guillen-Walsh

The world is changing, and technology is taking over; a person’s social media presence is now under scrutiny during hiring decisions. Employers are not only searching for your Facebook profiles, but are asking for your passwords to see all available material.[1] Are they allowed to do this? The very lawyerly answer to this problem: it depends. Several states have actually passed laws against these kind of questions and searches.[2] In May 2015, Connecticut became the 21st state to enact a social media privacy law.[3] In absence of a binding federal law, employers in these states must comply.[4] Thus, in these states, employers are precluded from asking potential employees to disclose social media passwords.[5] But, don’t celebrate yet employees! Many of the states have not jumped on this bandwagon.[6] If your social media profile is public, you might want to make sure there’s nothing on it that you wouldn’t want a potential employer to view. Employers are not breaking any laws by searching your name in Google.

What about the people that are already employed? In the 2009 New Jersey decision, Pietrylo v. Hillstone Rest. Group, the employer viewed the employees’ internet discussion group as critical and wanted an employee’s individual password.[7] The employer’s motion was ultimately denied because the employer’s access was unauthorized and the managers continued to access the site, knowing it was restricted.[8] While the jury did find that the employer did violate employee rights, employer was found not to have invaded employees’ privacy.[9] Instead, they found that employer had violated New Jersey law and federal law, Stored Communications Act.[10] The Stored Communications Act, extremely similar to the New Jersey statute, focuses on unlawful access to stored communication.[11] Both pieces of legislation discuss that in order to be in violation, there needs to be intentional, unauthorized access to any electronic storage. [12] Clearly, in Pietrylo, the jury believed social media pages like MySpace fell into this definition.[13]

Similarly, over the last few years, the National Labor Relations Board (“NLRB”) has heard cases dealing with postings on social media, and whether employers could use it as evidence to fire their employees.[14] Back in May of 2011, the NLRB filed a complaint against a non-profit agency, the Hispanics United of Buffalo, Inc., which led to a three-day trial.[15] This procedure was rare considering most NLRB complaints had been previously settled confidentially when it dealt with an employer’s social media policies.[16] However, on September 6, 2011, it was decided that the agency violated the National Labor Relations Act (“NRLA”) by firing employees discussing their jobs, managers, and clients on their Facebook pages after working hours.[17] The Administrative Law Judge (“ALJ”) presiding over the case explained “criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected.”[18] The NLRA states that:

[Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.[19]

In the above case, the ALJ reasoned that this was not threatening to the employer and therefore should be protected.[20]

Based on these recent decisions, the National Law Review urges employers to pay attention to potential new NLRB pushes for employee protection regarding social media.[21] In order to avoid violating the NLRA, employers should only discipline employees for serious online discussions of work that could pose a threat to the employer, or in some other way require employee information.[22] Employers should be aware of these topics and know where their individual rights are being violated.

[1] Leonard V. Feigel, More Facebook Issues: This Time, It’s the Stored Communications Act, labor & employment law perspectives: social media (Sept. 9, 2013), https://www.laboremploymentperspectives.com/2013/09/09/more-facebook-issues-this-time-its-the-stored-communications-act/.

[2] Id.

[3] Ben Dipietro, Laws Try to Resolve Employer-Employee Social Media Conflicts, Risk & Compliance Journal (May 28, 2015), http://blogs.wsj.com/riskandcompliance/2015/05/28/laws-try-to-resolve-employer-employee-social-media-conflicts/.

[4] Id.

[5] Id.

[6] See id.

[7] Pietrylo v. Hillstone Rest. Group, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009).

[8] Id.

[9] Id.

[10] Id. and NJ Stat. Ann. §2A:156A-27

[11] 18 U.S.C. Chapter 121 §§ 2701–2712, see also N.J Stat. Ann. §2A:156A-27.

[12] Id.

[13] Pietrylo v. Hillstone Rest. Group, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009).

[14] Laura M. Lawless Robertson, NLRB Judge Issues First Ever Ruling in Social Media Line of Cases, Nat’l L. Rev., Sept. 9, 2011, http://www.natlawreview.com/article/nlrb-judge-issues-first-ever-ruling-social-media-line-cases.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] 29 U.S.C. § 158. This section of the NLRA discusses unfair labor practices, and devotes a section specifically to unfair practices by employers. Id.

[20] See id.

[21] Laura M. Lawless Robertson, NLRB Judge Issues First Ever Ruling in Social Media Line of Cases, NAT’L L. REV., Sept. 9, 2011, http://www.natlawreview.com/article/nlrb-judge-issues-first-ever-ruling-social-media-line-cases.

[22] Id.

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PUT YOUR MONEY WHERE YOUR MOUTH IS

By: Daniel Galan

Whether a friend or family member, everybody knows a person that has worked as a wait staff employee. In the United States, wait staff employees are at the mercy of customer discretion in the amount of tip received. Under the Fair Labor Standards Act, “tipped employees are those who customarily and regularly receive more than $30 per month in tips.”[1] Federal law mandates that tipped employees be paid at least $2.13 per hour.[2] Beyond the $2.13 per hour minimum wage, states have wide latitude in setting the minimum wage rates for tipped employees.[3] In California, the minimum wage rate for tipped employees is $9.00 per hour[4], however, California is the exception and not the rule. In fact, twenty-five states allow the minimum wages of tipped employees’ to be less than $3.00 per hour.[5]

The custom of tipping was not always as popular in the U.S. as it is today.  Between 1909 and 1918, seven states passed anti-tipping laws.[6] Scholars have argued that tipping is undesirable because it facilitates prejudice, tax evasion, income inequality and negative externalities.[7] However, the legislative movement towards abolishing tipping is dead given the continued prevalence of tipping in American society.

Danny Meyer, creator of shake shack and CEO of Union Square Hospitality Group, seems to agree with the negative sentiments surrounding tipping and he’s not waiting for legislative action. Earlier this week, Meyer announced the bold initiative of eliminating tips at Gramercy Tavern, Union Square Café.[8] Mr. Meyer believes that the tipping structure in American restaurants is inherently unfair, “[i]t’s a very odd American tradition that we think is an anachronism–that thousands of dining patrons have a better bead on what a server should be paid, or what a cook should be paid, than we do.”[9] In order to offset the average 21% tip, restaurants eliminating tips will need to increase menu prices by 20%-25%.[10] The elimination of tips would increase the wages of servers, hosts, and other staff that does not get tipped out.[11] Not everybody is thrilled with Mr. Meyer’s ingenuity, Melissa Fleischut, president and chief executive of the trade group New York State Restaurant Association, speculates that many restaurants will not be able to eliminate tips because their customers won’t tolerate higher prices.[12]

While the practice of tipping has been around for hundreds of years, there is evidence that suggests that it does not actually accomplish what it sets out to–incentivizing employees to do a better job.[13] Furthermore, restaurant owners may stand to benefit by eliminating tips from a compliance standpoint. Restaurants’ abolishing the tip system eliminates the need to comply with the Fior D’Italia rule, which enables the IRS to conduct additional audits on businesses employing tipped employees.[14] Meyer is not the first CEO to consider eliminating tips, but Gramercy Tavern is the most recent high profile example of a potentially growing trend within the restaurant industry.

[1] U.S. DOL, Wage and Hour Division, Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (2013), http://www.dol.gov/whd/regs/compliance/whdfs15.pdf.

[2] Id.

[3] U.S. DOL, Wage and Hour Division, Minimum Wages for Tipped Employees (December 2014), http://www.dol.gov/whd/state/tipped.htm.

[4] Id.

[5] Id.

[6] Ian Ayres, Fredrick E. Vars & Nasser Zakariya, To Insure Prejudice: Racial Disparities in Taxicab Tipping, 114 Yale L.J. 1613, 1660 (2005).

[7] Yoram Margalioth, The Social Norm of Tipping,the social norm of tipping, Its Correlation with Inequality, and Differences in Tax Treatment Across Countries, 11 Theoretical Inq. 561, 581 (2010).

[8] Pete Wells, Danny Meyer Restaurants to Eliminate Tipping, N.Y. Times, Oct. 14, 2015, http://nyti.ms/1RHILNE.

[9] Corinne Ramey, Danny Meyer’s Union Square Hospitality to Eliminate Tipping at Its Restaurants, Wall St. J., Oct. 14, 2015, http://www.wsj.com/articles/danny-meyerss-union-square-hospitality-to-eliminate-tipping-at-its-restaurants-1444839158.

[10] Id.

[11] Talia Ralph, Who Danny Meyer Is Helping By Eliminating Tipping At His Restaurants, Forbes, Oct. 14, 2015, http://www.forbes.com/sites/taliaralph/2015/10/14/who-danny-meyer-is-helping-by-eliminating-tipping-at-ushg/. (follow “search: talia ralph who danny meyer is helping by eliminating tipping at his restaurants” hyperlink).

[12] Id.

[13] Michael Lynn, Restaurant tipping and service quality: A tenuous relationship, 42(1) Cornell Hotel and Restaurant Administration Quarterly 14, 18 (2001), http://scholarship.sha.cornell.edu/articles/113/.

[14] Harold S. Peckron, TIP POLICE: AFTERMATH OF THE FIOR D’ITALIA RULE, 52 Cath. U. L. Rev. 1, 33 (2002).

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Terrors from the OSHA: How SeaWorld’s Working Conditions Pose a Whale of a Problem for Their Employees

By: Dominic Delorantis

Picture this: you go into work, grab a cup of coffee, arrive at your desk, and your arm gets ripped off by a killer whale. That is the reality SeaWorld trainers face every day when they go into work. In 2010, Dawn Brancheau, a trainer at SeaWorld, was killed while working with a whale during a “relationship session” after the whale dragged her into the tank and repeatedly struck and thrashed her.[1] This highly publicized incident came after a slew of deaths and injuries stemming from the unsafe working conditions at SeaWorld.[2] However, unlike the mammals at SeaWorld, the OSHA violations for these unsafe working conditions have no bite.

OSHA has cited SeaWorld numerous times for the hazardous working conditions they subject their trainers to, most notably after the 2010 incident, which OSHA classified as a “willful” violation.[3] Although the penalties for these violations have been as high as $75,000[4], they have made no waves in terms of deterring SeaWorld from continuing to do everything they can to churn a profit at the expense of their employees.[5]

In an investigation of the 2010 incident, OSHA found that SeaWorld had been exposing trainers to “recognized hazards of drowning or injury” during performances due to the proximity of the whales to the trainers.[6] Since then, SeaWorld claims they have implemented increased safety measures for their trainers by removing them from the water during shows.[7] However, not only has SeaWorld failed to enforce these measures, but multiple sources reveal that they still allow their trainers to make close contact with the whales, and in some instances even continue to ride and swim with them.[8]

In addition to failing to remedy their unsafe working conditions, SeaWorld has failed to furnish their trainers with adequate incident reports which aid in their ability to understand the marine mammals they are working with and safely perform their job.[9] When questioned by the Department of Labor about why their corporate incident reports failed to catalogue all occurrences of whale aggression, all SeaWorld official Chuck Tompkins had to say was “we missed a few.”[10] Tompkins also stated that SeaWorld does not “reevaluate its protocols after an injury or death because it deems the injuries that occur ‘a result of human error’ and insisted that revising safety protocols is unnecessary.”[11] This flippant attitude toward creating safe working conditions is alarming, not only because of the blatant disregard for the safety of their trainers, but because it shows the ineffectiveness of OSHA in making SeaWorld comply with safety regulations.

The public outcry for both the mistreatment of the whales and their trainers has sparked a cultural movement ranging from the documentary Blackfish to the removal of Mattel’s “SeaWorld Trainer Barbie” from their lineup,[12] costing SeaWorld an estimated $82.5 million drop in revenue since 2013.[13] The tides are turning and it is clear that greater efforts must be made to protect SeaWorld employees by preserving their right to a safe working environment. The public has smelled blood in the water when it comes to exposing the practices of SeaWorld and it is high time the Department of Labor does, too.

[1] U.S. Dep’t of Labor, U.S. Labor Department’s OSHA cites SeaWorld of Florida following animal trainer’s death, Osha (Aug. 23, 2010), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18207.

[2] SeaWorld’s corporate incident log details reports of over 100 incidents of injuries and death caused by whale aggression. From Inside the SeaWorld Hearings: Part 2, (Sept. 21, 2011), Peta http://www.peta.org/blog/seaworld-vs-secretary-labor-part-two/.

[3] OSHA classifies “willful” violations as a violation “committed with plain indifference to or intentional disregard for employee safety and health.” U.S. Dep’t of Labor, U.S. Labor Department’s OSHA cites SeaWorld of Florida following animal trainer’s death, supra note 1.

[4] Id.

[5] “Three years after the death of trainer Dawn Brancheau at the Orlando theme park, SeaWorld has been fined $38,500 and labeled a repeat offender for continuing to employ trainers in unsafe working conditions.” Danielle Hanna, SeaWorld Fined for Killer Conditions, Global Animal (June 18, 2013), http://www.globalanimal.org/2013/06/18/seaworld-fined-for-killer-conditions/.; In April 2015, SeaWorld was fined $25,770 for four separate OSHA violations relating to hazardous working conditions. Tony Perry, Cal/OSHA cites SeaWorld San Diego for safety violations; park vows to appeal, L.A. Times (April 30, 2015, 8:52 PM), http://www.latimes.com/local/lanow/la-me-ln-seaworld-citations-20150430-story.html.

[6] Jack Bouboushian, SeaWorld Must Pay for Risks to Orca Trainers, Courthouse News (April 14, 2014, 5:51 AM), http://www.courthousenews.com/2014/04/14/67057.htm.

[7] Jennifer Abel, Court rules against SeaWorld in whale-training case, Consumer Affairs (April 15, 2014), http://www.consumeraffairs.com/news/court-rules-against-seaworld-in-whale-training-case-041514.html.

[8] Id.; Perry, Cal/OSHA cites SeaWorld San Diego for safety violations; park vows to appeal, supra note 5.

[9] Jason Garcia, Not all whale aggression made it into SeaWorld’s incident log, lawyers say, Orlando Sentinel (Sept. 22, 2011), http://articles.orlandosentinel.com/2011-09-22/business/os-seaworld-osha-whale-aggression-20110921_1_dawn-brancheau-seaworld-trainers-loro-parque.

[10] Id.

[11] Ingrid Newkirk, Deaths at SeaWorld May Soon Include Its Own, Huffington Post (Nov. 28, 2011, 5:12 AM), http://www.huffingtonpost.com/ingrid-newkirk/seaworld-san-diego_b_985566.html.

[12] Ben Popken, Mattel Dumps ‘SeaWorld Trainer Barbie’ After Animal Rights Backlash, NBC News (Apr. 25, 2015, 11:41 AM), http://www.nbcnews.com/business/consumer/mattel-pulls-seaworld-trainer-barbie-after-animal-rights-backlash-n347756.

[13] Michael Miller, SeaWorld fined for improperly protecting employees from killer whales, Washington Post (May 1, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/05/01/seaworld-fined-for-improperly-protecting-employees-from-killer-whales/.

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Driving Ms. Classification: Uber’s possible misclassification of drivers

By: Gabriel Arevalo

Earlier in the month of September the Northern District court of California found that Uber drivers are de facto employees.[1]  A recent decision on September 1st, establishes that the drivers do have a primia facia case to determine that they are presumptive employees and can move on as a class action law suit, the court further states that it is up to Uber at trial to prove that the drivers are not employees but instead independent contractors. The court further states that the drivers have to satisfy that they can pass the common law test to determine if a worker is an employee.

Why does this matter? Well in general large companies tend to believe that classifying workers as independent contractors instead of employees is cheaper and beneficial to their business models.[2] Uber claims that its drivers are independent contractors and not employees, which is one of the key bases on how their business model operates.[3] By classifying workers as independent contractors companies can keep costs and reduce liability, companies do not have to pay over time or health benefits as well as avoid having complete liability over the actions of their workers.[4]

The plaintiffs allege that the following factors should determine that drivers are employees and not independent contractors.[5] The plaintiff in their case claims that they are employees through the work control test highlighted in Borello v. Department of Industrialized Relations. [6]   The Borello court finds that in this case cucumber sharecroppers although not under full control of an employer were still found to be employees when applying the statutory work control test. [7]

Does Uber have enough control over its drivers to be considered an employee/employer relationship? The court finds that there is enough evidence for a jury to accurately determine whether Uber misclassified their workers or not.[8] The plaintiffs claim that Uber does have enough control over drivers that they are not just independent contractors. The arguments for control include the use of GPS monitoring as constant surveillance.[9] Another argument made is that the right of Uber to terminate drivers at will constitutes complete control similar to that which would be held over an employee.[10] The plaintiffs also argue that the five star rating system used by passengers which evaluates drivers’ performances is a form of super vision which is consistent with an employer/employee relationship.[11]

It seems that the jury will have to determine if GPS tracking and customer rating which is facilitated by Uber is enough to constitute direct control. It seems that Uber has attempted to avoid having direct control over their drivers by taking a behind the scenes approach. The court in this case doesn’t seem to find that there is enough evidence for a jury to decide but does not take the responsibility of classifying the drivers itself. What could a reclassification of drivers mean for the future? Could Uber be facing a long journey of restructuring its business model in order to better facilitate its newly found employees? One thing is certain if a jury in California does find that Uber drivers are in fact employees and not independent contractors it will be a major blow to Uber.

[1] O’Connor v. Uber Technologies, Inc., No. C-13-3826 EMC, 2015 WL 5138097, at *5 (N.D. Cal. Sept. 1, 2015).

[2] See Phillip R. Maltin, By Any Other Name No Matter What Workers Are Called, Their Status and Treatment As Employees Are Subject to A Variety of Fact-Based Tests, L.A. Law., SEPTEMBER 2001, at 53

[3] https://www.uber.com/driver-jobs

[4] Supra at note 2

[5] Id.

[6] S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 1989 Cal. LEXIS 975, 54 Cal. Comp. Cases 80 (Cal. 1989)

[7] Id.

[8] O’Connor v. Uber Technologies, Inc., No. C-13-3826 EMC, 2015 WL 5138097, at *6 (N.D. Cal. Sept. 1, 2015).

[9] Id.

[10] Id.

[11] Id.

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Loosening Standards to Tighten Responsibilities: An Overview of the NLRB’s “New” Joint Employer Standard

By: Elizabeth Driscoll

The world we live in is constantly changing; however, the great debate lies in whether change is for better or for worse. The NLRB’s recent decision[1] in Browning Ferris Industries of California, Inc.[2] promises immense change for franchises.[3] Instead of adhering to the same joint employer standard that has been the norm for the past 30 years,[4] the NLRB has chosen to revert back to a broader standard.[5] This new standard imposes joint employer status on franchisors and others who may “share or codetermine those matters governing the essential terms and conditions of employment.”[6]

Under the narrow standard, the NLRB “(a) require[ed] evidence of direct and immediate control over employees; (b) look[ed] only to the actual practice of the parties rather than their contract; and (c) require[ed] an employer’s control to be substantial and not ‘limited and routine.’”[7] The new standard no longer requires the franchisor to exercise actual control; rather, the fact that a franchisor has the potential to exercise control will be used to determine whether the franchisor is a joint employer.[8] Furthermore, indirect control may be sufficient to establish joint employer status.[9]

In an attempt to combat the use of the new NLRB standard, and reinstate the narrow standard that has been used for decades, Rep. John Kline introduced the Protecting Local Business Opportunity Act to the House of Representatives.[10] This bill amends the NLRA to “clarify the treatment of two or more employers as joint employers.”[11] If the bill is passed, a singular sentence will be added to the end of Section 2(2) of the NLRA[12] stating that multiple employers can only be considered joint employers if “each shares and exercises control . . . and such control . . . is actual, direct, and immediate.”[13] Proponents of this bill believe that the new standard set forth by the NLRB will negatively affect the daily operations of small businesses, franchises, and independent contractors.[14] Additionally, they fear that the broader standard will be abused and allow for intrusion into company contracts.[15] Because of the ambiguous language of the new standard,[16] a wide array of employment subjects[17] could be included as evidence for joint employer status. Franchisors may be held liable for the business practices of their franchisees, which some argue will undermine the business model; therefore, making it a less appealing organizational structure.[18]

On the other side of the spectrum, the NLRB’s broad standard can be seen as a symbol of hope for unions and those who wish to unionize. If the franchisor is held to be a joint employer, the ability for workers to organize will greatly increase.[19] Franchisors will no longer be able to terminate a franchise where employees were attempting to organize in order to avoid the creation of a union.[20] Furthermore, under federal labor law, unions are legally entitled to collectively bargain with the employer.[21] As joint employers, franchisors will also be available to the unions for bargaining purposes.[22]

The NLRB believes that the broader joint employer standard is in accordance with the Board’s duty under the NLRA to “encourage[e] the practice and procedure of collective bargaining.”[23] If the proposed Protecting Local Business Opportunity Act is not passed, then it is certain that we will see a shift in union leverage, as well as a shift in the franchise model in general. Both sides present compelling arguments for why the standard should not or should be changed. Only time will tell if these shifts will prove to be a beneficial change for the United States.

[1] Decided August 27, 2015.

[2] Browning-Ferris Industries of California, Inc., 362 N.L.R.B. 186 (2015).

[3] Id. at 15 (adopting a new standard for joint-employer determination).

[4] Id. at 1.

[5] Id. at 2.

[6] Id. at 2 (quoting NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982).

[7] Id. at 7-8.

[8] Id. at 15-16.

[9] Id. at 16.

[10] The bill was introduced on September 9, 2015.

[11] Protecting Local Business Opportunity Act, H.R. 3459, 114th Cong. (2015).

[12] 29 U.S.C. § 152(2).

[13] H.R. 3459 at § 2 (emphasis added).

[14] Pamela Wolf, ‘Protecting Local Business Opportunity Act’ Hearing Examines NLRB Joint Employer Standard, Wolters Kluwer Employment Law Daily, http://www.employmentlawdaily.com/index.php/news/protecting-local-business-opportunity-act-hearing-examines-nlrb-joint-employer-standard (last visited Oct. 10, 2015).

[15] Id.

[16] The Board uses an inclusive approach to define the “essential terms and conditions of employment” that will be used to determine joint employer status. Browning-Ferris Industries of California, Inc., 362 N.L.R.B. 186, 15 (2015).

[17] Subjects include but are not limited to: “hiring, firing, discipline, supervision, and direction.” Id.

[18] See Barry M. Heller, Franchising Faces a Major Threat, Inside Counsel, Jul 2015.

[19] Molly L. Kaban & Raymond F. Lynch, Looking Ahead After NLRB Joint Employer Ruling, The Recorder, Sept. 22, 2015.

[20] Noam Scheiber & Stephanie Strom, Labor Board Ruling Eases Way for Fast-Food Unions’ Efforts, N.Y. Times, Aug 28, 2015, at A1.

[21] 29 U.S.C. § 157.

[22] See id.

[23] Browning-Ferris Industries of California, Inc., 362 N.L.R.B. 186, 2, 20 (2015).

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