F-A-I-R: Let’s Fight for Fair Wages and Raise the Bar!

By: Domenick Pesce

While the average National Football League (“NFL”) spectator sees a cheerleader as an enthusiastic and smiling female athlete draped in their home team colors, the reality underneath the pep and glee is that NFL cheerleaders are some of the most poorly paid workers in the United States.[1] NFL cheerleaders maintain virtually no labor rights and ultimately end up earning nowhere near the minimum wage.[2] The crux of this gross pay disparity stems from the NFL’s position that cheerleaders are independent contractors.[3] Classifying cheerleaders as independent contractors has enabled NFL teams to circumvent state and federal minimum wage requirements when paying their cheerleaders.[4]

For decades, National Football League teams have used this labor and employment classification of independent third party contracting as a shield to act as if cheerleaders were not their employees.[5] Despite this classification, cheerleaders work forty-two weeks a year, attend practice several times a week, attend charitable and corporate team events, are photographed for promotional media, and entertain fans during games.[6] The more recent legal battles regarding these pay disparity issues were contingent on whether cheerleaders are actual employees of these organizations.[7] This fact is determined by how much control the hiring NFL teams have over the way cheerleaders perform their duties.[8] In many instances, cheerleaders are required to sign contracts that compel them to participate in community service events and provide additional paid appearances.[9] Some cheerleaders attest to cheering and accepting such low wages because of their love of dance, performance, and service.[10]  Kim Griffith, a Howard and Emory University graduate, who cheered for five years with the Atlanta Falcons, had to sign a contract that required her to have either a full-time job, be a full-time student, or be a stay-at-home mother, in addition to her cheer responsibilities.[11] NFL teams such as the Atlanta Falcons create similar contracts to give the illusion that cheerleaders are cheering on the side, because of their love and passion for everything that goes along with cheering for an NFL team.[12]

In many recent cases, however, judges have disagreed with the independent contracting gymnastics that NFL teams perform to avoid paying minimum wages, and have ordered teams to pay their cheerleaders millions of dollars in back wages.[13] The Tampa Bay Buccaneers, for example, agreed to pay up to $825,000 to settle a lawsuit brought by cheerleaders who were paid only $100 a game.[14] In January of 2014, Oakland Raiderette cheerleader, Lacy T, brought a lawsuit on behalf of her entire cheer team.[15] After taking into account practice hours, charitable appearances, the annual swimsuit calendar shoot, and a ten game cheering commitment, she and her attorneys alleged that the Raiderettes’ $1,250 annual wage equated to less than $5 an hour.[16] This was $3 less than the state minimum wage.[17] Today, after nearly $1.25 million in settlements, the Raiderettes are entitled to earn the same wages as the team’s other minimum-wage employees.[18]

While the average NFL fan may not be completely aware of this issue it has been recognized by government officials proposing legislative solutions.[19] In January of 2015, California Assemblywoman, Lorena Gonzalez, proposed legislation that attempts to tear down the veil of third party contracting used by professional sports teams to pay cheerleaders unfair wages.[20] Her legislation would mandate that professional sports teams recognize cheerleaders as their own employees and pay them the state-mandated minimum wage.[21] NFL cheerleading squads provide an entertainment service, represent a team and business in the public eye, earn a tremendous amount of money for their teams,[22] and physically train their bodies to perform difficult athletic tasks just as professional football players do. It is shocking and unreasonable that they not earn a fair wage doing so.

[1] Nichi Hodgson, Cheerleaders make the NFL’s billions. They deserve to be paid minimum wage, The Guardian (Nov. 10, 2017), https://www.theguardian.com/commentisfree/2014/mar/30/cheerleaders-make-minimum-wage-nfl-labor-rights.

[2] Id.

[3] Cecelia Townes, Why are NFL and NBA cheerleaders barely earning minimum wage?, ESPNW (Nov. 10, 2017), http://www.espn.com/espnw/voices/article/19454957/why-nfl-nba-cheerleaders-barely-earning-minimum-wage.

[4] Id.

[5] Marina Adshade & David Berri, Pay Cheerleaders What They’re Worth, Time (Nov. 10, 2017), http://time.com/3752957/nfl-football-cheerleaders-minimum-wage/.

[6] Id.

[7] Cecelia Townes, Why are NFL and NBA cheerleaders barely earning minimum wage?, ESPNW (Nov. 10, 2017), http://www.espn.com/espnw/voices/article/19454957/why-nfl-nba-cheerleaders-barely-earning-minimum-wage.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Marina Adshade & David Berri, Pay Cheerleaders What They’re Worth, Time (Nov. 10, 2017), http://time.com/3752957/nfl-football-cheerleaders-minimum-wage/.

[14] Id.

[15] Nichi Hodgson, Cheerleaders make the NFL’s billions. They deserve to be paid minimum wage, The Guardian (Nov. 10, 2017), https://www.theguardian.com/commentisfree/2014/mar/30/cheerleaders-make-minimum-wage-nfl-labor-rights.

[16] Id.

[17] Id.

[18] Marina Adshade & David Berri, Pay Cheerleaders What They’re Worth, Time (Nov. 10, 2017), http://time.com/3752957/nfl-football-cheerleaders-minimum-wage/.

[19] Id.

[20] Id.

[21] Id.

[22] Nichi Hodgson, Cheerleaders make the NFL’s billions. They deserve to be paid minimum wage, The Guardian (Nov. 10, 2017), https://www.theguardian.com/commentisfree/2014/mar/30/cheerleaders-make-minimum-wage-nfl-labor-rights.

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Three Strikes, You’re Out: Bringing a Claim Against the NCAA When College Athletes Have Been Deemed Ineligible for Wages Due to Non-Employee Status

By: Megan Foggia

The question is not a novel one – whether college athletes should be deemed employees of the universities they play for, therefore entitling them to wages under the Fair Labor Standards Act (“FLSA”) has been bitterly debated.[1] Although debated, student athletes have never been successful in bringing a claim for wages under the FLSA,[2] and now more than ever, it is likely that they will never be successful.[3]

The struggles of college athletes to establish a claim under the FLSA began in early 2016 with Berger v. NCAA, where a federal district court in Indiana held that three female members of the University of Pennsylvania (“Penn”) track and field team were not employees under the FLSA.[4] The women claimed that “by virtue of their participation on the team, they are employees of Penn for purposes of the Fair Labor Standards Act.”[5] The court, however, disagreed, and the U.S. court of Appeals for the Seventh Circuit later affirmed the dismissal.[6]

In April 2017, an almost identical situation occurred in California in Dawson v. NCAA, where the court held that a football player for the University of Southern California was not considered an employee under either the FLSA or the California Labor Code.[7] The player framed his claim as distinguishable from Berger v. NCAA in the respect that the plaintiffs in Berger were track and field athletes, and Lamar Dawson was a football player for a Division I team.[8] The court held that Dawson had no basis for his claim, establishing no binding case law that a college athlete was ever considered an employee for the purposes of federal or state legislation.[9] The court then ensured that any lingering questions pertaining to the revenue generating potential of college athletes were put to rest, holding that revenue generation is not determinative in deciding employment status.[10]

In a surprising turn of events, the attorney who represented the women in Berger brought a claim on behalf of yet a third college athlete claiming to be an employee under the FLSA.[11] In Livers v. NCAA, plaintiff’s counsel slightly changed his strategy by “bringing a FLSA collective action in a Pennsylvania federal court against [twenty] different Pennsylvania schools and the NCAA (as a joint employer).”[12] But once more, the plaintiff’s claim was that college athletes should be considered employees under the FLSA and entitled to wages.[13] Given the decision in Berger, the outcome seems easy enough to discern.[14] But the effects of the Berger and Dawson decisions in terms of inducement to play for Division I teams and the revenue such teams produce for universities across the country, have yet to be addressed.[15] If there remain little incentives and rewards for college athletes to continue playing, the world of college sports, which is the sole recruitment pool for major sports leagues, stands to lose more than it has gained from these decisions.

[1] Jonathon Israel, Repeat After Me: College Athletes Are Not School Employees Under The FLSA, Lab. and Employ L.. Perspectives (Nov. 6, 2017), https://www.laboremploymentperspectives.com/2017/11/06/repeat-after-me-college-athletes-are-not-school-employees-under-the-flsa/#more-4359.

[2] Id.

[3] Id.

[4] Berger v. NCAA, 162 F. Supp. 3d 845, 846 (S.D. Ind. 2016).

[5] Id.

[6] Id.

[7] Dawson v. NCAA, 250 F. Supp. 3d 401, 402 (N.D. Cal. 2017).

[8] Id. at 406.

[9] Id.

[10] Id. at 407.

[11] Israel, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

Where Do They Fit In? New Type of Work in the Existing Labor Laws

By: Julia Johnson

As law students, we are no strangers to ordering Grubhub to the library late at night or taking an Uber to the train station to make it to an interview on time without the pain of parking. With the growth of these services courts across the country find themselves trying to fit this gig economy into existing labor laws.[1]

On October 30, 2017, closing arguments were made in Lawson v. Grubhub Inc., on the misclassification of Grubhub drivers as independent contractors.[2] This decision reiterated a recent case decided in California Appeals Court, which stated the burden in classification cases lies with the plaintiff to prove damages and the employer to prove an employment relationship.[3] The original complaint was filed in November 2015, illustrating the “trickiness” Judge Corley alludes to in “trying to fit in this gig economy to existing labor rules.”[4] Classification arguments fall on the amount of control the employer has over the employee.[5] In what seems to be a winning argument for Grubhub, they said the plaintiff “could sign on and off when he wanted, only took on shifts voluntarily, faced no restrictions on his methods for delivery, chose the region where he works and could even use the apps of food delivery competitors while driving for Grubhub.”[6] Along with these arguments, proof that the plaintiff defrauded the company was offered.[7] However, the rebuttal of the plaintiff’s argument that he was not compensated overtime because he was logged onto a competitor, makes it difficult to see how the plaintiff could establish Grubhub’s control over him.[8] It seems clear that the decision on burdens of proof in misclassification suits is a step in the right direction for the California courts “trying to fit in this gig economy to existing labor rules.”[9]

Here in New York, there has been a similar line of cases involving Uber drivers.[10] New York Taxi Workers Alliance, et al. v. Uber Technologies, Inc., et al illustrates a recent case in the 2nd Circuit United States District Court for the Southern District of New York.[11] Here the complaint leads to two issues: whether the Uber-driver relationship is an employee-employer relationship, and compensation which drivers believed they were owed.[12] This particular case began in July of 2016, during a long battle in which Uber has been able to weed out a number of plaintiffs, including the Alliance.[13] The facts of the case are similar to not only the case discussed earlier, but all misclassification suits involving similar aps.[14] Moving forward in the suit, arguments are gong to lead to the amount of control Uber has over their drivers.[15]

In the 3rd Circuit United States District Court for the Eastern District of Pennsylvania, Uber found themselves in an almost identical suit (Ravak v. Uber Techs., Inc.), arguing the classification of their employees and their entitlement to compensation.[16] Originally filed in the state court system in January 2016, Uber successfully removed to federal court on the grounds of federal question and diversity.[17] Having survived many motions to dismiss and partial judgment, the parties now find themselves arguing the compensation of “on call” compensation.[18] While Uber argues that their drivers differ from traditional “on call” due to the drivers ability to control if, when, and where they pick up, plaintiffs argue Uber’s interpretation simply does not make sense due to the fact if true, it would result in no online time being compensable.[19] With the court’s denial of Uber’s motion for summary judgment it is clear that Uber and their drivers are involved in another uphill battle to fit their positions in today’s gig economy into the existing labor laws.[20]

While it seems employees in these relationships are facing difficulty in the court system, recently they have won over New York City (“NYC”) officials who have decided to take their own steps in fitting in this gig economy by creating a new legislation.[21] The Freelance Isn’t Free Act, implemented on May 15, 2017, requires any work for $800 or more over a four month period to be contracted in writing.[22] The Freelancers Union was a major player in pushing for this legislation in NYC and has made it clear that this is not going to be their only success, they believe this is only one of the first of a national trend in legislation which addresses the need for regulation of the gig economy that continues to grow.[23]

[1]Cara Bayles, Burden Falls On Grubhub In Gig Economy Case, Judge Says, Law360 (Oct. 30, 2017), https://www.law360.com/employment/articles/979722/burden-falls-on-grubhub-in-gig-economy-case-judge-says.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Alexander M. Tait, Arrival Time and Destination Unknown: The Latest Uber Employment Classification Case, The L.E.Jer (Sept. 13, 2017), https://thelejer.wordpress.com/page/2/.

[12] Id.

[13] Linda Chiem, Uber Wants ‘Flawed’ NYC Drivers Classification Suit Axed, Law360 (Aug. 31, 2016), https://www.law360.com/articles/834855/uber-wants-flawed-nyc-drivers-classification-suit-axed.

[14] Id.

[15] Id.

[16] Ravak v. Uber Techs., Inc., No. 16-573, 2017 U.S. Dist. LEXIS 148087 (E.D. Pa. Sept. 13, 2017).

[17] Id. at *3.

[18] Id. at *40-42.

[19] Id.

[20] Id. at *47.

[21] Matthew Steinberg & Raymond Berti, Lawmakers Slowly Begin to Regulate Gig Economy, N.Y. L. J. (Nov. 6, 2017), https://advance.lexis.com/api/permalink/91ae62f5-f092-4ff7-bca1-80f491405637/?context=1000516.

[22] Id.
[23] Id.

CUTIE, YOU ARE FIRED! Are “Cute” Employees Now Part of a Protected Class?

By: Thalia Olaya

In New York, at-will employees who are fired for being “cute” can now successfully sue for gender discrimination.[1] In New York State, employees are generally considered to be “at-will.”[2] In other words, in the private sector, an employer can essentially fire an employee for any or no reason.[3] This reason, however, cannot be discriminatory.[4]

Although some adverse employment actions may appear unfair or unreasonable, they do not always qualify, under the law, as workplace discrimination.[5] New Yorkers are entitled to protection against workplace discrimination under federal, state, and local laws.[6] The New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), though, are broader than its federal counterpart.[7] Cuteness, however, is not a protected class mentioned under any of these laws.[8]

On August 22, 2017, in Edwards v. Nicolai, a New York State appellate court reversed the dismissal of a gender discrimination claim after an employee was fired because she was, “too cute.”[9] Charles Nicolai and Stephanie Adams, the two defendants, are married co-owners of a chiropractic and wellness clinic.[10] Plaintiff was hired by Nicolai in 2012 as a yoga and massage therapist, and became her supervisor.[11]

In 2013, Nicolai told Edwards that his wife might be jealous because Edwards was “too cute.”[12] Shortly thereafter, Adams sent Edwards a threatening text message telling her that she was no longer welcome at the clinic and to stay away from her husband and family.[13] A few hours later, Edwards received an email from Nicolai stating that she was fired.[14]

Edwards claimed in the complaint that her relationship with Nicolai was strictly professional, and she had no idea why Adams would be suspicious of their relationship.[15] Plaintiff’s complaint, however, did not state any facts alleging that she was ever subjected to sexual harassment at work.[16] The appellate court reversed the lower court’s dismissal of the gender discrimination claim and stated that even though Edwards was never subjected to sexual harassment while at work, “it is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”[17]

In other words, the court accepted Edwards’ allegations in her complaint that despite always behaving properly around Nicolai, she was fired for no other reason except for Adam’s jealousy and belief that Nicolai was sexually attracted to Edwards.[18] For these reasons, the court concluded that Edwards did in fact state a gender discrimination claim under both the NYSHRL and the NYCHRL.[19]

In sum, an important take-away from this case is that employers now have to be careful when terminating employees, including “cute” ones.[20] The bottom line, is that it is important that employers document any work and performance issues their employees have in order to support any of their future employment decisions.[21]

 

[1] Edwards v. Nicolai, 60 N.Y.S.3d 40, 42 (N.Y. App. Div. 1st Dept. 2017).

[2] Can You Be Fired?, N.Y. State Office of the Attorney Gen., https://ag.ny.gov/labor/can-you-be-fired (last visited Nov. 8, 2017).

[3] Can You Be Fired?, supra note 2.

[4] Employment Discrimination Laws, N.Y. State Office of the Attorney Gen., https://ag.ny.gov/civil-rights/employment-discrimination-laws (last visited Nov. 8, 2017).

[5] See Can You Be Fired?, supra note 2.

[6] Id.

[7] Tammy Marzigliano & Nicholas Sikon, As Discrimination and Harassment Rise, NYC Promotes Its Human Rights Law, Emp. L. Blog (Sept. 22, 2017), http://www.employmentlawblog.info/2017/09/as-discrimination-and-harassment-rise-nyc-promotes-its-human-rights-law.shtml.

[8] See 42 U.S.C.A. § 2000e-2(a)(2) (West 2017) (protecting employees from workplace discrimination based on “race, color, religion, sex, or national origin”); 29 U.S.C.A. § 623(a)(1)-(3) (West 2017) (protecting employees from workplace discrimination based on age); 42 U.S.C.A. § 12112(a) (West 2017) (stating that an employer cannot “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment”); N.Y. Exec. Law § 296(1)(a) (McKinney 2017) (stating that is unlawful discriminatory practice for an employer to discriminate against an employee “because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status”); N.Y.C. Code § 8-107(1)(a) (prohibiting discrimination based on “the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or alienage or citizenship”).

[9] Edwards v. Nicolai, 60 N.Y.S.3d 40, 41 (N.Y. App. Div. 1st Dept. 2017).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 47.

[17] Id.

[18] Id.

[19] Id.

[20] See Barbara E. Hoey, Are “Cute” Employees A New Protected Class in New York?, Lab. Days Blog (Aug. 24, 2017), https://www.labordaysblog.com/2017/08/are-cute-employees-a-new-protected-class-in-new-york/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+labordaysblog+%28Labor+Days%29.

[21] Hoey, supra note 20.

Man Up! Emasculating the Stereotypical View of Manliness Through An Absence of Masculinity May Result in a Sex Bias Claim

By: Stephanie Speirs

Where a supervisor discriminated against a male employee, the employer acted based on his definition of how he believed a male should represent masculinity.[1] In a novel developed by a Missouri State Appeals Court, it was established that a sex bias claim could be based on instances of sex stereotyping.[2] In such circumstances, a homosexual state employee may have a valid lawsuit based on gender discrimination allegations, because his behavior and appearance were not in accordance with his managers’ “stereotypical views of manliness.”[3]

Lampley, an employee of the state of Missouri’s Office of Administration Child Support Enforcement Division filed charges of sex discrimination and retaliation charges with the U.S. Equal Employment Opportunity Commission and the Missouri Commission on Human Rights.[4] His claims stem from allegations that his employer and managers discriminated against him based on his sex, because his behavior and appearance emasculated the stereotypical view of masculinity.[5] As a result, his employer’s conflicting opinions of how Lampley ought to carry himself as a man led to Lampley’s harassment, separate treatment from the other men who were up to the manager’s or employer’s gender standards, and a revengeful poor performance evaluation in response to the complaint.[6]

Frost, a fellow friend and colleague, followed Lampley, filing suit shortly after him based on a claim that her association with him led to retaliation against her as well.[7] The Missouri Commission on Human Rights terminated both workers’ complaints, stating that it lacked jurisdiction over the claims, because they were based on sexual orientation, and the trial court decided in agreement with this reasoning.[8] However, both employees appealed the decision, arguing that the court incorrectly found that the claims were based on sexual orientation when they were actually based on sex.[9] The Missouri State Appeals Court agreed with the employees, finding that they never alleged discrimination based on an unprotected class like sexual orientation, but rather consistently stated a discrimination claim based on sex.[10]

This decision on sex stereotyping is unfamiliar in the realm of sex discrimination, and the position of a 1989 U.S. Supreme Court case played an integral role in the court’s decision.[11]

Similar to Lampley, where a female senior manager was denied partnership in an accounting firm, because the partners considered her “insufficiently feminine,” the Supreme Court held that this stereotyping was analogous to a sex discrimination claim under Title VII.[12] Although the Missouri courts did not explicitly declare that the Human Rights Act provided protections for sex stereotyping, prior case law establishes the principal basis for which the theory can be supported.[13] Among the other considerations of whether a sex stereotyping claim will be satisfied, four prongs were used, including: (1) whether they were treated differently from similarly situated members of the opposite sex, (2) whether the employee belonged to a protected class, (3) whether the employee was qualified to perform his or her job, and (4) whether the employee suffered an adverse employment action.[14]

The importance in this decision is the distinction it makes between sexual orientation claims and sex stereotyping claims, in that they are not to be treated equally.[15] If an employer finds, in his or her opinion, that an employee is insufficiently masculine or feminine not in accordance with their gender, the “lack” of masculinity or feminity is not dependent on the employee’s sexual orientation.[16] Thus, whether an employee is gay or straight is an element that must be considered separately from the reasoning and reality of discrimination based on stereotyping sex.[17]

 

[1] Lampley v. Mo. Comm’n on Human Rights, No. WD80288, 2017 Mo. App. LEXIS 1069, at *1-2 (Mo. Ct. App. Oct. 24, 2017).

[2] Vin Gurrieri, Stereotyping Can Support Sex Bias Claim, Mo. Court Says, Law360 (Oct. 26, 2017, 8:59 PM), https://www.law360.com/employment/articles/978722/stereotyping-can-support-sex-bias-claim-mo-court-says.

[3] Id.

[4] Lampley, 2017 Mo. App. LEXIS 1069, at *1-2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *2-3.

[11] Lampley, 2017 Mo. App. LEXIS 1069, at *5 (citing Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

[12] Id.

[13] Vin Gurrieri, Stereotyping Can Support Sex Bias Claim, Mo. Court Says, Law360 (Oct. 26, 2017, 8:59 PM), https://www.law360.com/employment/articles/978722/stereotyping-can-support-sex-bias-claim-mo-court-says.

[14] Id.

[15] Id.

[16] Id.

[17] See Lampley, 2017 Mo. App. LEXIS 1069, at *9; see also Gurrieri, supra note 2.

More Complaints Pile Up Against Tesla

By: Alyssa Costantino

This is certainly not the first bit of legal trouble for automobile giant, Tesla Motors Corp., and it may not be the last.[1] On Wednesday, October 26, 2017, the United Auto Workers (“UAW”) filed a complaint with the National Labor Relations Board (“NLRB”) against Tesla Motors Corp., following the firing of hundreds of its employees for “performance issues.”[2] An estimated total of 1,200 employees were fired in the past month, from both Tesla Motors Corp., and Tesla-owned SolarCity, a solar power system company.[3] The UAW filed the unfair labor practice complaint, which included six charges against Tesla, claiming that Tesla was “intimidating and harassing employees, terminating a group of employees to discourage protected concerted activity, disciplining employees for wearing items with the Union’s logo, terminating and/or disciplining employees in retaliation for participating in protected concerted activities, and more.”[4]

One employee in particular, Mike Williams, with “a record free of performance-related issues,” was told he was being let go from the company for having a “negative influence” on the other employees and for “performance issues.”[5] Williams also noted that he wore union clothing and had union stickers on his personal belongings.[6]

This is not the first anti-union claim against Tesla.[7] On August 31, 2017, the National Labor Relations board filed an official complaint against Tesla for stopping its employees from handing out “union literature.”[8] The complaint alleges Tesla security guards “‘restrained and coerced off-duty employees” who were handing out leaflets to other employees on Tesla property in February and May of 2017.[9] Under Section 7, the board alleges that, “[Tesla] has been interfering with, restraining and coercing employees in the exercise of their rights [to engage in concerted activity] . . .”[10] The board also claims that Tesla forced its employees to sign restrictive confidentiality agreements preventing them from organizing or discussing work conditions.[11] In response to these claims, Tesla representatives believe this is a “publicity campaign” against the automobile company to “distract from [UAW’s] declining membership.”[12] Recently, UAW had lost an election in Mississippi, and a prior UAW office was indicted with bribery charges.[13]

In addition, this is not the only recent legal complaint against Tesla Motors Corp.[14] On Tuesday, October 24, 2017, a former Tesla employee filed a class action lawsuit against the automobile maker, claiming they failed to give adequate notice for laying off its employees.[15] The Tesla employee, Abraham Duarte, was let go earlier this month even though he received “positive performance reviews.”[16] Duarte worked at the Fremont factory, which had recently let go of almost 500 employees this month.[17] The Fremont factory was also the location of a recent rally that was held inside the factory to protest the mass firing.[18] Along with that lawsuit, another Tesla employee filed a wrongful termination lawsuit, claiming that he was fired for seeking protection after enduring anti-gay harassment at work.[19] These complaints are continuing to “paint an unflattering picture of life at the popular carmaker.”[20]

Tesla is scheduled to appear before an NLRB administrative law judge for a hearing beginning on November 14, 2017, based on the unfair labor practice charges.[21] With the amount of recent complaints filed against Tesla, it will be interesting to see how the board will handle these new claims, as they are certainly not the first to be filed against the successful company.[22]

[1] Bonnie Eslinger, Tesla Fired Union-Supporting Workers, UAW Tells Labor Board, Law360 (Oct. 26, 2017, 9:02 PM), https://www.law360.com/articles/978696.

[2] Id.

[3] Zac Estrada, Tesla hit with labor complaint on behalf of fired factory workers, The Verge (Oct. 26, 2017, 3:25 PM), https://www.theverge.com/2017/10/26/16553554/tesla-labor-complaint-fired-factory-workers-elon-musk.

[4] UAW Files Charges Against Tesla on Behalf of Unfairly Terminated Workers, UAW (Oct. 26, 2017) https://uaw.org/uaw-files-charges-tesla-behalf-unfairly-terminated-workers/.

[5] Bonnie Eslinger, Tesla Fired Union-Supporting Workers, UAW Tells Labor Board, Law360 (Oct. 26, 2017, 9:02 PM), https://www.law360.com/articles/978696.

[6] Id.

[7] Id. (noting that the NLRB Oakland office alleged that Tesla violated the NLRA blocking workers at its California manufacturing plant from handing out union literature).

[8] Braden Campbell, NLRB Says Tesla Suppressed Union Campaign, Law360 (Sept. 1, 2017, 1:17 PM), https://www.law360.com/articles/959995?scroll=1.

[9] Id.

[10] Id.

[11] Danielle Muoio, Federal labor officials are going after Tesla over alleged workers’ rights violations, Bus. Insider (Aug. 31, 2017, 9:10 PM), http://www.businessinsider.com/nlrb-complaint-tesla-workers-union-2017-8. http://www.businessinsider.com/uaw-tesla-complaint-fire-workers-union-2017-10.

[12] Braden Campbell, NLRB Says Tesla Suppressed Union Campaign, Law360 (Sept. 1, 2017, 1:17 PM), https://www.law360.com/articles/959995?scroll=1

[13] Bonnie Eslinger, Tesla Fired Union-Supporting Workers, UAW Tells Labor Board, Law360 (Oct. 26, 2017, 9:02 PM), https://www.law360.com/articles/978696.

[14] Zac Estrada, Tesla hit with labor complaint on behalf of fired factory workers, The Verge (Oct. 26, 2017, 3:25 PM), https://www.theverge.com/2017/10/26/16553554/tesla-labor-complaint-fired-factory-workers-elon-musk.

[15] Id.

[16] Bonnie Eslinger, Tesla Fired Union-Supporting Workers, UAW Tells Labor Board, Law360 (Oct. 26, 2017, 9:02 PM), https://www.law360.com/articles/978696.

[17] Id.

[18] UAW Files Charges Against Tesla on Behalf of Unfairly Terminated Workers, UAW (Oct. 26, 2017), https://uaw.org/uaw-files-charges-tesla-behalf-unfairly-terminated-workers/.

[19] Andrew J. Hawkins, Tesla hit with another lawsuit, this time alleging anti-LGBT harassment, The Verge (Oct. 19, 2017, 3:09 PM), https://www.theverge.com/2017/10/19/16504498/tesla-lawsuit-anti-lgbt-harassment-factory.

[20] Id.

[21] Danielle Muoio, The United Auto Workers has filed a federal complaint claiming Tesla fired workers for trying to unionize, Bus. Insider (Oct. 26, 2017, 12:03 PM), http://www.businessinsider.com/uaw-tesla-complaint-fire-workers-union-2017-10.

[22] Danielle Muoio, Federal labor officials are going after Tesla over alleged workers’ rights violations, Bus. Insider (Aug. 31, 2017, 9:10 PM), http://www.businessinsider.com/nlrb-complaint-tesla-workers-union-2017-8.

WARNING! – SEX TRAFFICKERS HIDING BEHIND THE CORPORATE VEIL – LABOR LAW RECOVERS $2,125,000 IN DAMAGES FOR VICTIMS AT OREGON STRIP CLUB

By: Joseph Rodriguez

While criminal and civil cases have served severe punishment on individual traffickers and secured large settlements for victims,[1] national corporate entities are escaping liability.[2] The states are preempted by the Telecommunications Act of 1996 (hereinafter “the Act”), because without sufficient evidence organizations like Backpage.com are shielded from liability, while children are being trafficked on their website for sex.[3] Moreover, as lawmakers are trying to change that through statute,[4] the states still face similar challenges with local organizations hiding behind the corporate veil.[5]  The action brought by Oregon’s Labor Commissioner, Brad Avakian (hereinafter “the Commissioner”) is one great example of how states can use labor law to hold organizations accountable for trafficking crimes.[6]

The action for employment discrimination brought by the Commissioner resulted in damages totaling $2,125,000 for two girls who were sex trafficked in the same organization when they were thirteen, and fifteen years old (hereinafter “AP1” and “AP2” respectively).[7] Leading up to the action, Steven Toth plead guilty to compelling prostitution, first-degree sex abuse, and second-degree sodomy of AP1, and AP2, receiving a fifteen year prison sentence.[8] Moreover, Toth agreed to split the profit from prostituting the girls with pimps, Anthony Curry and Victor Moreno-Hernandez.[9] Hernandez, who controlled AP1, received a thirty year prison sentence for rape, sexual abuse, and compelling a minor into prostitution.[10] Curry controlled AP2, and received a life sentence on seven counts of using a child in a display of sexually explicit conduct.[11]

No criminal charges were filed against the owners of Stars Cabaret, because according to the Washington County prosecutor “[e]very single lead was followed as far as it could be followed.”[12] Consequently, the commissioner filed the action seeking $4,000,000 on behalf of AP1, and AP2, and Randy Kaiser, Todd Mitchell, and Jeff Stuhar settled for $1.25 million with AP1, and found guilty of aiding and abetting in the sex trafficking of a AP2.[13] Additionally, the owners were ordered to pay $1,000,000 dollars to AP2, and were issued a cease, and desist order from violating discrimination based on sex, and sexual harassment laws.[14]

The Commissioner alleged that AP1 and AP2 were exposed to, and treated with extreme sexual harassment, discrimination, and abuse.[15] AP1 also danced nude, and was forced to perform sex acts with customers in a back room of Stars Cabaret.[16] In the verdict for AP2 the court found the owners liable because Stars Cabaret created an environment in the entertainment business that was sexually charged.[17] The owners were aware of the potential for sex trafficking in clubs, but failed to use simple measures to verify that the dancers hired were consenting adults.[18]

Furthermore, in the verdict for AP2 the court determined that under the reasonable care standard the owners should have known that they were employing a fifteen year old girl to dance nude on stage and perform sexually suggestive dances for male customers.[19] Finally, the court considered the factors that the organization had constructive knowledge that its type of business attracted traffickers, and it did not take reasonable care to prevent harassment of underage girls.[20]

Similarly, in a recent sex trafficking case against backpage.com constructive knowledge was not enough evidence, and the court held that without more than mere knowledge of the illegal activity occurring the Act prevented organizations like backpage.com from being held liable.[21] Moreover, this contradiction highlights the tragedy that the Act is creating for victims, and the need for states to apply every measure of labor law to human trafficking cases because corporate entities must be held accountable.

[1] Rachel Weiner, Former U.S. diplomat again found liable for raping housekeeper, Denver Post: National Politics Denverpost.com (July 31, 2017, 5:58 pm), http://www.denverpost.com/2017/07/31/linda-russell-howard-diplomat-sex-trafficking-rape-housekeeper.

[2] Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015).

[3] Id.

[4] Stop Enabling Sex Traffickers Act of 2017, S. 1693 115th Cong. § 1693 (2017).

[5] The Telecommunications Act of 1996, 47 U.S.C. § 230 (2012).

[6] Brad Avakian V. Frehoo, Inc., 2017 WL 2992890 (Or. State Ct. June 2, 2017).

[7] Karina Brown, Oregon Uses Labor Law to Tackle Child Trafficking, Courthouse News Service (Jan. 9, 2017), https://www.courthousenews.com/oregon-uses-labor-law-to-tackle-child-sex-trafficking.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Brad Avakian V. Frehoo, Inc., 2017 WL 2992890 (Or. State Ct. June 2, 2017).

[14] Recent BOLI Final Orders, Bureau of Lab. and Industries, http://www.oregon.gov/boli/Pages/Recent_BOLI_Final_Orders.aspx, (last visited Oct. 26, 2017).

[15] Id.

[16] Brad Avakian V. Frehoo, Inc., 2017 WL 2992890 (Or. State Ct. June 2, 2017).

[17] Recent BOLI Final Orders, Bureau of Lab. and Industries, http://www.oregon.gov/boli/Pages/Recent_BOLI_Final_Orders.aspx, (last visited Oct. 26, 2017).

[18] Id. at 41

[19] Id.

[20] Id.

[21] Id. at 162 (“Unless Congress amends the [CDA], it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage.”) (quoting Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011)).

Hail Mary

By: Jacqueline Gallagher

Whether you agree or disagree with Colin Kaepernick taking a knee at the very beginning of the 2016 National Football League (“NFL”) season, there is no debate over the fact that football players taking a knee during the national anthem has gained national attention.[1] Kaepernick became a free agent after the 2016 season, after leading the 49ers to win the Super Bowl in 2012 and the National Football Conference (“NFC”) Championship in 2016.[2] But unfortunately for Kaepernick, no team signed him during the 2017 offseason and training camps.[3] While some argue this was due to his “declining performance,” others argue, “he was blacklisted for his political views expressed on and off the football field.”[4]

On October 15, 2017, Kaepernick filed a grievance against the NFL and the thirty two teams in the division.[5] The grievance alleges a violation of Article 17 of the collective bargaining agreement (“CBA”) between the NFL and the NFL Players’ Association.[6] Article 17, Section 1 of the CBA reads:

 

No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making as follows: (i) whether to negotiate or not to negotiate with any player; . . . (iii) whether to offer or not to offer a Player Contract to any player; . . . or (v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract.[7]

 

Article 15 of the CBA “requires alleged violations of Article 17 be brought before an arbitrator” and “contains a provision that all such proceedings are confidential unless the parties agree otherwise.”[8] Under the CBA, Kaepernick bears the burden of proof.[9]

More specifically, the grievance alleges that the NFL, the team owners, and employees “have entered into and enforced, implied and/or express agreements to specifically deprive Claimant Colin Kaepernick from employment in the NFL . . . for which Mr. Kaepernick is eminently qualified.”[10] The grievance alleges this was done to retaliate against Kaepernick for his “leadership and advocacy for equality and social justice.”[11] Furthermore, the grievance alleges “[r]espondents have retaliated against Mr. Kaepernick in response to coercion and calculated coordination from the Executive Branch of the United States government.”[12]

According to Michael Elkins, an employment law attorney with Bryant Miller Olive, Kaepernick will have to prove that at least two teams “got together and agreed not to sign him because of his political viewpoint. He’s going to need some direct evidence of that.” [13] Elkins says that “[u]nless he comes up with some smoking-gun email or text message, which isn’t going to exist because these owners are smart people, it’s going to be very tough.”[14] He also points out that regardless of the inflammatory comments President Trump has made in the last few weeks that President Trump, the office of the President, the Executive Branch, and Vice President Pence are not parties to the collective bargaining agreement.[15] Nor did President Trump ever mention Kaepernick specifically.[16] Elkins said “[t]he deck is really stacked against him.”[17] But “[i]f he wins, Kaepernick stands to win millions of dollars. A win does not guarantee he’ll ever play in the NFL again, and some believe filing the grievance in the first place may have been the final nail in that coffin, effectively ending his NFL career.”[18]

It seems that the NFL has numerous quarterbacks inferior to Kaepernick.[19] For example, Aaron Rodger’s potentially season-ending injury is causing the Green Bay Packers to look at two quarterbacks, Brett Hundley and Joe Callahan, who are both nowhere near as good as Kaepernick. [20] The NFL, however, have a defensible position, since “they can cite to very real political and business pressures that weigh against hiring a controversial figure, no matter how good he is.”[21] Some believe that “it will ultimately be President Trump’s words and deeds that help the quarterback score a huge win off the field.”[22] Although the discovery process is already being discussed, getting access to every owner’s phone records is unlikely.[23] And while this is an unprecedented situation, the mechanics are not.[24] Once the sides agree on a third-party to retrieve the electronic communications to reveal the relevant data, it seems that the discovery process could take three to four weeks.[25] Only time will tell if Kaepernick’s Hail Mary pass will be successful.

 

[1] Evan Gibbs, Colin Kaepernick’s Grievance, ABOVE THE L. (Oct. 16, 2017), https://abovethelaw.com/2017/10/colin-kaepernicks-grievance/?rf=1; Evan Grossman, Colin Kaepernick’s collusion grievance a ‘mistake,’ says legal expert, DAILY NEWS (Oct. 16, 2017), http://www.nydailynews.com/sports/football/colin-kaepernick-collusion-grievance-mistake-legal-expert-article-1.3566647; THE LEGAL BLITZ, Could Colin Kaepernick Kill The NFL CBA?, ABOVE THE LAW (Oct. 20, 2017), https://abovethelaw.com/2017/10/could-colin-kaepernick-kill-the-nfl-cba/?rf=1.

[2] Evan Gibbs, Colin Kaepernick’s Grievance, ABOVE THE L. (Oct. 16, 2017), https://abovethelaw.com/2017/10/colin-kaepernicks-grievance/?rf=1.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Evan Grossman, Colin Kaepernick’s collusion grievance a ‘mistake,’ says legal expert, DAILY NEWS (Oct. 16, 2017), http://www.nydailynews.com/sports/football/colin-kaepernick-collusion-grievance-mistake-legal-expert-article-1.3566647.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Jeremy Stahl, Trump’s Big Mouth May Have Given Colin Kaepernick a Case Against the NFL, Slate, http://www.slate.com/articles/sports/sports_nut/2017/10/colin_kaepernick_might_win_his_nfl_collusion_grievance_because_of_trump.html (last visited Oct. 22, 2017).

[20] THE LEGAL BLITZ, Could Colin Kaepernick Kill The NFL CBA?, ABOVE THE L. (Oct. 20, 2017), https://abovethelaw.com/2017/10/could-colin-kaepernick-kill-the-nfl-cba/?rf=1

[21] Id.

[22] Jeremy Stahl, Trump’s Big Mouth May Have Given Colin Kaepernick a Case Against the NFL, Slate, http://www.slate.com/articles/sports/sports_nut/2017/10/colin_kaepernick_might_win_his_nfl_collusion_grievance_because_of_trump.html (last visited Oct. 22, 2017).

[23] Jason La Canfora, Colin Kaepernick’s collusion grievance against NFL moving forward, CBS SPORTS (Oct. 22, 2017), https://www.cbssports.com/nfl/news/colin-kaepernicks-collusion-grievance-against-nfl-moving-forward/.

[24] Id.

[25] Id.

Aggrieved Employees: DO NOT QUIT!

By: Danielle Corbisiero

Aggrieved employees should not voluntarily quit their jobs as a provisional measure if circumstances prove to be insufficient for constructive discharge.[1] This piece of advice could save workers from a potential impending litigation.[2] The insistency on “sticking around” is effusive of a recent decision by the U.S. Court of Appeals for the Sixth Circuit.[3] The latest decision from Fletcher v. U.S. Renal Care is conclusive of how Ohio’s affirmation of a racial discrimination suit has proven to be advantageous to employers in constructive discharge cases.[4]

In Fletcher v. U.S. Renal Care,[5] Steve Fletcher claimed, that while employed as a registered nurse by defendant, U.S. Renal Care, he faced “discriminatory scrutiny” and was victim to “mistreatment by an African-American manager, because he is white.”[6] This treatment violated Title VII of the Civil Rights Act of 1964.[7] The complaint filed by Fletcher, alleges that retaliatory behavior led to constructive discharge.[8] In October 2013, while working as a “float nurse”[9] for defendant, Fletcher landed a placement in Norwood, Ohio.[10] Until May 2014, Fletcher worked without incident under Supervisor Johnson, an African-American.[11] After the instatement of Nelson is when these incidents began to occur.[12] First, Nelson told Fletcher that he was “no longer allowed to wear black jeans.”[13] Despite wearing jeans for the entire month prior, he was now instructed to wear scrubs.[14] Fletcher challenged this abrupt change with Nelson’s supervisor, Sabbon Shelton, who informed him that he may continue wearing jeans.[15] Shortly thereafter, Fletcher filed a complaint with human resources, because Nelson “chose to single out and harass only the Caucasian person.”[16] Fletcher alleged that he was not the only employee who had been victim to this racism.[17] Benjamin Ullman, another employee, left due to Nelson’s “racist attitude.”[18] Fletcher asserted that Nelson accused him of putting a doctor’s order in the wrong chart, to which Fletcher clarified was a mistake he never made.[19] Finally, Fletcher argued that instead of calling out sick, he had a co-worker cover for him while he was at the dentist, which Nelson refused to authorize as time off.[20]

Following standard procedure, Nelson brought Fletcher’s charting errors to the chief operating board and then the vice president of clinical services, Sasserman[21] and Zimmerman respectively.[22] They were shocked to see how “lacking [the] written orders [were].”[23] After receiving a final warning, Fletcher quit due to an intolerable workplace.[24] Since Fletcher did not have the demographics to support his racial discrimination allegations, the court held that Fletcher had not suffered direct racial animus, and failed to demonstrate prima facie reverse discrimination.[25] He also failed to prove that he suffered adverse employment action by constructive discharge, indicate that similar employers were treated differently based on race, or that he was replaced by an employee of another race.[26]

To establish constructive discharge, an employee must show: (1) the employer deliberately created “intolerable working conditions, as perceived by a reasonable person,” and (2) the company did so by means to get him to quit.[27] Here, Fletcher indicates there were deliberate acts to make his working conditions intolerable, i.e. false allegations, declining to authorize early leave, and requirement of scrubs.[28] Fletcher’s claims were insufficient to demonstrate the “badgering, harassment or humiliation,” required for constructive discharge.[29] Additionally, Fletcher failed to bring any evidence of harassment or show behavior indicative that he should leave.[30] The court held that Fletcher attempted to prove speculation, and lacked probative evidence.[31]

Evidently, a plaintiff must prove constructive discharge has occurred via an underlying adverse employment action.[32] Even assuming Fletcher’s allegations were true, the court said they did not rise to the level of constructive discharge.[33] An aggrieved employee should not quit at the initial signs of discrimination.[34] The court wants employees to combat the discrimination while remaining employed,[35] because “policies underlying Title VII will best be served if, wherever possible, unlawful discrimination is attacked within the context of existing employment relationships.”[36] The burden is greater for the employee to prove intolerability when the employee elects to quit, and fails to demonstrate that they were forced to quit.[37] Voluntary resignation is not tangible, affording employers a defense, and constructive discharge requires employees to work in intolerable conditions.[38] Given the intricacies of employment law,[39] it is not surprising for an employee who quit to be confronted with difficulty when bringing a claim in court. Therefore, as the instant case suggests, aggrieved employees are strongly advised not to voluntarily quit.[40]

[1] See, Boriski v. City of Coll. Station, 65 F. Supp. 2d 493 (S.D. Tex. 1999) (“When an employee voluntarily quits under circumstances insufficient to amount to a constructive discharge, there has been no adverse employment action.”).

[2] Id. 

[3] Fletcher v. U. S. Renal Care, No. 17-3327, 2017 U.S. App. LEXIS 18907, at* 7-8 (6th Cir. Sep. 28, 2017).

[4] Fletcher, 2017 U.S. App. LEXIS 18907 at 1.

[5] Id.

[6] Id. at 3.

[7] Civil Rights Act of 1964, 72 U.S.C.A. §2000e.

[8] Id. at 3.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 4. Fletcher “cracked a tooth, exposing a nerve and leaving him in pain.” Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. An intolerable workplace is defined by “racism, retaliation, and other questionable behavior.” Id.

[25] Id. at 135.

[26] Fletcher, 2017 U.S. App. LEXIS 18907 at 4 (clarifying that Fletcher’s replacement was also a white male nurse).

[27] Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005) (quoting Logan v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001)).

[28] Fletcher, 2017 U.S. App. LEXIS 18907 at 4.

[29] Laster v. City of Kalamazoo, 746 F.3d 714, 727-728 (6th Cir. 2014); Smith v. Henderson, 376 F.3d 529, 534 (6th Cir. 2004) (holding that differential treatment and scrutiny does not indicate the intention to force an employee to quit).

[30] Fletcher, 2017 U.S. App. LEXIS 18907 at 7. This included “direct racial slurs.” Id.

[31] Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)).

[32] White v. Burlington N. & Santa Fe Ry., 364 F.3d 789 (6th Cir. 2004) (finding that the plaintiff must show an adverse employment action that “materially adverse[ly] change[s] the terms and conditions” of employment).

[33] See Laster, 746 F.3d 728.

[34] Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986) (holding that an employee’s voluntary resignation is not sufficient to show constructive discharge).

[35] Richard M. DeAgazio, PROMOTING FAIRNESS: A PROPOSAL FOR A MORE REASONABLE STANDARD OF CONSTRUCTIVE DISCHARGE IN TITLE VII DENIAL OF PROMOTION CASES, 19 Fordham Urb. L.J. 979, 988-89 (1992).

[36] Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980). The employee is not entitled to relief beyond the date of resignation, because it is unreasonable for him or her to resign where the conditions are not “intolerable.” Id.

[37] Hammon v. DHL Airways, Inc., 165 F.3d 441 (6th Cir. 1999) (finding that the former employee’s voluntarily resigned, and that the constructive discharge occurs when working conditions become too difficult that a reasonable person would be compelled to resign).

[38] See Mangrum v. Republic Industries, Inc., 260 F. Supp. 2d 1229, 46 Fair Empl. Prac. Cas. (BNA) 1252 (N.D. Ga. 2003).

[39] Jean R. Sternlight, In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis, 78 Tul. L. Rev. 1401 (2004).

[40] English v. Gen. Dev. Corp., 731 F. Supp. 305 (N.D. Ill. 1990) (holding that a black female employee was not constructively discharged when she quit her job voluntarily); Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989), quoting Bailey v. Binyon, 583 F. Supp. 923, 929 (N.D. Ill. 1984) (“An employee must seek legal redress while remaining [emphasis added] in his or her job unless confronted with an “aggravated situation” beyond “ordinary” discrimination.”).

FREEDOM TO PRAY? MORE LIKE – PRAY YOU DON’T GET FIRED

By: Amanda Lilla

While the First Amendment gives “freedom of mind” the same security as “freedom of conscious,” there are limitations to this freedom.[1] The First Amendment explicitly states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[2]

The question on limitation becomes, when is this right limited?[3] Employees who work in the public sector (i.e. work for governmental entities) have First Amendment rights in the work place.[4] While those in the private sector, are restricted from exercising free rein of their First Amendment right.[5] But this right is differentiated when employers are classified as either a public employee or a private citizen. A recent hot issue is whether or not employers and employees who work in sports and athletics may exercise their First Amendment right.[6] Earlier this week, a Washington state school district urged the Ninth Circuit to reverse the District Court’s ruling on 42 U.S.C.S. § 1983 actions.[7] The Plaintiff brought this action asking for a preliminary injunction, and requested a coaching job that would allow him to exercise his right to pray on the fifty-yard line.[8]

The United States Court of Appeals was tasked with deciding whether or not the speech in question was spoken as a “public employee” or a “private citizen,” a factual determination that must be made as to the scope of the responsibilities of the employee.[9]

The lower court stated that high schools can prevent their former football coach from praying on the field after a game without violating the coach’s First Amendment right.[10] In response, the Bremerton School District urged that the ruling align with precedent set by the Appeals Court and the United States Supreme Court.[11] They argued that schools should not be given the power to “quash” all religious activity.[12] The Court ultimately applied a five-step framework,[13] and held that the coach spoke as a public employee rather than a private citizen, when he prayed on the fifty-yard line in view of his students.[14] Due to his duties as coach, his speech fell within the scope of “typical job responsibilities.”[15] Therefore, he spoke as a public employee and the District Court was permitted to order the coach not to speak in the manner that he did.[16]

In a concurring opinion, Judge Smith found that the court was justified in denying Kennedy the right to prayer.[17] In this case, the Court explained that when applying the law, “coaches, like teachers, do not cease acting as coaches each time the bell rings or the conversation moves beyond the narrow topic of curricular instruction.”[18] The Court recognized the important role of worship, but stated, “such activity could promote disunity along religious lines.”[19] Judge Smith further explained that:

based on the history and context of Kennedy’s actions, the prayers could be viewed by an objective observer as an endorsement of religion by the school, and that permitting the conduct could also be seen as coercion of students required to attend the game — like cheerleaders and band members — to participate in the prayer led by Kennedy.[20]

The question remains, what are the implications of NFL players who “take[] a knee”- are they “public employees,” or are they creating disunity amongst viewers by standing behind something they believe in, as the Coach in Kennedy did? Around the same time the Court delivered this holding, NFL Coach Jerry Jones ordered his players to stand for the national anthem, threatening to fire anyone who did not.[21] Nonetheless, the Court left a big threshold matter by using the term disunity.

[1] U.S. Const. amend. I, § 1.

[2] Id.

[3] Daniel Taylor, Not-So-Free Speech: 5 Limits on 1st Amendment Rights, FindLaw, http://blogs.findlaw.com/law_and_life/2014/09/not-so-free-speech-5-limits-on-1st-amendment-rights.html (last visited Oct. 17, 2017).

[4] Freedom Of Speech In The Workplace: The First Amendment Revisited, FindLaw, http://corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html (last visited Oct. 15, 2017).

[5] Id.

[6] Scott Bomboy, The First Amendment and restricting professional athlete protests, Nat’l Convention Ctr. (Sept. 25, 2017), https://constitutioncenter.org/blog/the-first-amendment-and-restricting-professional-athlete-protests.

[7] 42 U.S.C.S. § 1983.

[8] Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 825 (9th Cir. 2017).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. (stating all five factors, Kennedy spoke on a matter of public concern, that the relevant speech was a substantial or motivating factor in the District’s decision to place Kennedy on leave, and that the District would not have taken the adverse employment action in the absence of the relevant speech, Thus, we need to consider only whether Kennedy spoke as a private citizen or public employee.) (citing Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009)).

[14] Bremerton Sch. Dist, 869 F.3d 813, 821 (9th Cir. 2017).

[15] Id.

[16] Id.

[17] Matthew Guarnaccia, 9th Circ. Says Midfield Prayer By School Coach Not Protected, Law360 (Aug. 23, 2017, 7:31 PM), https://www.law360.com/articles/957080?scroll=1.

[18] Bremerton Sch. Dist, 869 F.3d 813, 824 (9th Cir. 2017).

[19] Id.

[20] Matthew Guarnaccia, 9th Circ. Says Midfield Prayer By School Coach Not Protected, Law360 (Aug. 23, 2017, 7:31 PM), https://www.law360.com/articles/957080?scroll=1.

[21] NFL anthem protests: Can Jerry Jones really order players to stand?,

Fox News, (Oct. 9, 2017), http://www.foxbusiness.com/features/2017/10/09/nfl-anthem-protests-can-jerry-jones-really-order-players-to-stand.html.