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Nike Accused of Gender Discrimination in Lawsuit

Nike has been hit again for alleged discriminating working conditions, this time biased against women. Two former employees. Kelly Cahill and Sara Johnston filed a class action lawsuit in Portland’s federal district court, claiming they were subject to hostile working environments, which the company failed to address, and paid less with fewer opportunities than their male counterparts, despite having equal comparable performance. The suit accuses Nike of violating the Federal Equal Pay Act, the Oregon Equal Pay Act, and the Oregon Equality Act. Heads Have Already Rolled Over Hostile Work Environment Since the beginning of 2018, eleven Nike executives have resigned over their protective behavior towards male staffers accused of belittling women and foreign-born workers. These executives were brought to the attention of CEO Mark Parker after women started pooling their stories of how demeaning Nike had become towards women. Reports of staff outings at strip clubs, supervisors bragging about carrying condoms in backpacks, inappropriate touching and emails, coupled with women claiming their careers had been marginalized, all surfaced. A few heads voluntarily rolled, but human resources seemed to do little on their own. Comp Changes Too Little Too Late Nike claimed it was giving across-the-board raises and revamping its bonus award formula, away from individual and team performance and more towards company performance, thereby eliminating any possible gender bias. These actions are too little too late for Cahill and Johnston, who claim Nike is still a “good ol’ boy” company, where alcohol runs freely, and drunk texting even freer. They are looking for a more “reliable” method of performance analysis, as well as damages, and for women who faced discrimination to be reinstated “to their rightful position.” Though the #MeToo movement is about a year old, it has been predominantly limited to the entertainment industry and select individuals. This is the first time it has been brought as a class-action against an entire company, especially one that claims to support women, or at least women in sports. Related Resources: Find a Business Lawyer Near You (FindLaw Lawyer’s Directory) How a Company Can Recover From a #MeToo Claim in 3…

Give Me a Break! But Can You Make Me Take One?

You can lead a horse to water, but you can’t make it drink. Similarly, you can give an employee a break, but you can’t make her take it. According to the federal Fair Labor and Standards Act (FLSA), employers are not required to give employees lunch breaks at all. State laws differ, and there should be mention of breaks in a company handbook. But how about going the other way? Can an employee be forced to take a lunch break? This must either be mandated by state law or written in the company handbook, and even then, it cannot be forced upon the employee in every instance. Most States Allow Working Through Lunch In a landmark 2012 California Supreme Court case, the justices decided that employers may not force employees to take breaks. Employees can “work through lunch”, but employers are under no obligation to pay a premium wage for that time. State law requires that workers are paid for every hour worked, and so if working through lunch puts an employee over 40 hours for the work week, employers are free to let the worker go home early. If your employees refuse to take breaks, and you believe it affects their work, have a conversation with the individual employee, and try seeking to understand. There may be a religious reason for needing to fast. Or perhaps a learning disorder that makes coming back to an uncompleted task difficult. Maybe an eating disorder is involved? You should be clear if you believe this practice is affecting their work performance, and any effect it may be having on other employees. The Catch-All At-Will Employment In every state except Montana, employers can choose to make employment at-will. In fact, absent corporate policy to the contrary, at-will status is presumed. At-will employment means that you can fire an employee for no reason at all, except for certain protected characteristic statuses, such as race, religion, gender, or disability. If an employee’s reason to refuse a break does not involve these characteristics, they can be fired without cause. This lesson was learned the hard way…

EEOC Sues United After Pilot Continuously Posted Nudes of Female Flight Attendant

So, when does bad behavior warrant a six-figure settlement, spark an FBI investigation, constitute criminal stalking, and lead to a three-year prison sentence, but not rise to the level sexual harassment at work? When your employer is United Airlines, according to the Equal Employment Opportunity Commission. The EEOC sued the airline last week on behalf of a female flight attendant who claims a male pilot posted nude and sexually suggestive photos (some including her work uniform) of her online for over a decade without her permission. The woman filed numerous lawsuits and human resources complaints, but United concluded the pilot’s actions did not constitute sexual harassment in the workplace. Even after the EEOC’s lawsuit, the airline asserted it “will vigorously defend against this case.” No Adequate Disciplinary, Preventative or Corrective Action According to the lawsuit, the flight attendant and the pilot, Mark Uhlenbrock, began a consensual relationship in 2002. Part of that relationship included Uhlenbrock taking pictures of her in “provocative poses,” some nude. That relationship ended in 2006 when she found out Uhlenbrock posted the racy photos online, without her consent. But the posting didn’t end when the relationship did. For ten years, Uhlenbrock continued to post sexually explicit images of her, at times identifying her by name, occupation, and home airport. Some images included her flight uniform, and Uhlenbrock would comment that she was a “new reason to ‘Fly the Friendly Skies.'” Despite this link to their employer, and that the images had been seen by at least two of her co-workers, United never stepped in to stop the behavior. Even when, in 2016, she demonstrated that Uhlenbrock was posting photos when he was still on United’s clock during layovers between flights, “no adequate disciplinary, preventative or corrective action was taken.” At one point the flight attendant was forced to take a leave of absence from the airline “due to the emotional harm suffered.” Uhlenbrock retired with full benefits. Fly the Hostile Skies This is not the first time the flight attendant tried to stop Uhlenbrock. The New York Times reports she filed three civil suits against him,…

Can You Ban Workers From Wearing Political Messages at Work?

You want to foster an environment at your small business where all of your employees and customers feel comfortable. But political conversations, especially in the current climate, have the potential to cause some civil unrest in the office. And when those conversations center around the minimum wage and the right to unionize, they can get especially uncomfortable for workers and management. In-N-Out thought it had the right idea when it invoked a blanket ban on “any type of pin or stickers” to prohibit employees at an Austin location from wearing “Fight for $15” buttons in solidarity with a nationwide campaign for a $15 per hour minimum wage, the right to form a union without intimidation, and other improvements for low-wage workers. But the company went too far, according to the Fifth Circuit Court of Appeals. So, what does that mean for you and your small business? Put a Pin in It The National Labor Relations Board protects certain speech at work, especially in relation to labor conditions and unionization. The Board found In-N-Out violated employees’ free speech rights by asking employees to remove their “Fight for $15” buttons, and ordered the company to cease and desist from: “Maintaining and enforcing a rule that prohibits employees from wearing, while on duty, any button or insignia apart from those it has approved, and that makes no exception for buttons or insignia pertaining to wages, hours, terms and conditions of employment or union or other protected activities”; “Directing employees to remove from their clothing any button or insignia pertaining to wages, hours, terms and conditions of employment or union or other protected activities”; and “Directing employees that they may not wear any [such] button[s] or insignia.” In-N-Out appealed the ruling to the Fifth Circuit, but that court agreed with the NLRB, finding Section 7 of the National Labor Relations Act “protects the right of employees to wear items — such as buttons, pins, and stickers — relating to terms and conditions of employment (including wages and hours), unionization, and other protected matters.” Pinned Down? To be clear, the National Labor Relations Act doesn’t…

Is There a Religious Exemption for Employee Healthcare Coverage?

While most small businesses aren’t required to provide healthcare benefits to their employees, many choose to do so in order to attract and retain the best employees. However, even if you don’t need to offer health insurance to your employees, once you do, federal law prohibits you from discriminating in your health benefits coverage based on an employee or dependent’s gender, race, age, national origin, religion, or disability, and many states and local municipalities also prohibit discrimination on the basis of sexual orientation or gender identity. But what if some of the healthcare choices made by your employees conflict with your religious beliefs? Could you end up paying for care and procedures you don’t agree with? Or are there religious exemptions to your employees’ health care benefits? Closely Held, Sincerely Held In 2014, the Supreme Court ruled that, even under Obamacare, some employers were not required to provide post-conception contraception to employees. The decision was limited to “closely held corporations” which are each owned by a single person or family, whose “sincerely held religious beliefs” are opposed to certain types of contraception that they believe cause abortions, even though the Affordable Care Act contained a contraception mandate requiring employers’ healthcare plans to cover those costs. Given the Trump administration’s attacks on the ACA, coupled with its addition of Justice Neil Gorsuch and possible addition of Judge Brett Kavanaugh, many women’s rights groups are wondering whether that exemption could be extended to more corporations, companies, and small businesses, and LGBTQ groups wondering whether the rationale for denying certain contraceptive care could be extended to healthcare services for transgender employees. Pre-Existing Conditions and Rights Currently, the Affordable Care Act bans healthcare providers from considering being transgender as a pre-existing condition. Previously, transgender people could be denied health insurance simply because they were transgender. So, as it stands, employers who are required to provide health benefits to their employees can’t discriminate in coverage for LGTBQ employees, even for religious reasons. But that could all change, depending on new court cases and state statutes. To learn more about your rights and responsibilities as a…

Is There a New Definition for ‘Off-The-Clock’ Work?

Of course, you need to pay your employees while they’re clocked in and doing work, but it turns out you might have to compensate them for off-the-clock work as well. The California Supreme Court unanimously ruled that Starbucks was required to pay their workers for minutes they spend performing works tasks off-the-clock, even if only for a brief time, if that task is routine like locking up, setting alarms, and sending reports. So, what does the ruling mean for employers? De Minimis Minutes? Previously, federal law did not entitle employees to be paid for working “a few seconds or minutes” beyond their scheduled hours. Referred to as “de minimis,” this time was deemed too difficult to calculate and therefore compensate employees for working. In 1964, the Supreme Court said “the realities of the industrial world” precluded keeping payroll records for such brief periods. Declining to apply that standard to Golden State workers, the California Supreme Court ruled that employees may not be entitled to compensation for every minute they work off the clock, but regular daily assignments, even brief ones, must be paid for. This case involved a shift supervisor at a Los Angeles Starbucks who was required to send daily sales data to corporate headquarters, and set the store’s alarm, lock the doors, and walk co-workers to their cars, all after clocking out. Douglas Troester estimates those added minutes and seconds totaled around 12 hours and 50 minutes over 17 months of employment, worth $102.67 at the then-minimum wage of $8 an hour. “That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares,” Justice Goodwin Liu wrote for the court. “What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.” Old Rule, New Tech Another aspect to the court’s ruling was modern technology that can make accounting for extra seconds or minutes much easier: “[M]any of the problems in recording employee work time discussed … 70 years ago, when time was often kept by punching a clock, may be…

Can You Require Employees to Stay On-Site for Lunch?

Taco Bell had itself a little problem. Apparently, employees were taking their discounted meals and complimentary drinks home to family and friends. So, the Bell instituted a rule requiring discounted meals be consumed on the premises. Because the meals were also consumed during employees’ lunch breaks, this effectively meant that if employees were on their lunch break, and utilizing their discount for a meal, they were required to remain on-site during their lunch breaks. But the State of California has its own rule, requiring that employers relinquish control of their employees during breaks. So, did Taco Bell’s on-premises discount policy make their employees’ meal breaks not breaks at all? Not according to the Ninth Circuit Court of Appeals. Break Requirements The Golden State is pretty strict when it comes to employee protections. Under state laws, if an employee works five hours in a day, they must have at least 30 minutes of time away from work to eat. The California Supreme Court clarified those requirements in 2012, ruling that an employer satisfies the meal break obligation when it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” Employees who so wished could decline the break, but employers would need to compensate them for their time working if they did. In this case, Bernardina Rodriguez filed a class action lawsuit against Taco Bell, claiming that, because the restaurant required discounted meals to be eaten on-site, she was under “sufficient employer control” that she should get paid for the time spent on the Bell’s premises eating discounted meals. But the Ninth Circuit wasn’t buying it. Relinquishing Control “On the basis of the undisputed facts in this case,” the court reasoned, “we conclude that Taco Bell’s meal policy … relieves employees of all duty and relinquishes control over their activities”: Taco Bell does not require the employee to purchase a discounted meal. The purchase of the meal is entirely voluntary. Plaintiff has not alleged nor introduced any evidence to…

Top 3 Legal Tips for Your Company’s Summer BBQ

You know it’s happening — employees are staring out their windows, wistfully wondering how the summer is going by so quickly. So why not get them out of the office for a little fun in the sun? If you haven’t already planned a summer BBQ or office picnic for your staff, it’s a great way to foster both personal and working relationships and give your employees a much-needed break from the monotony. But company outings aren’t just food and fun and games — they can be fraught with legal liability if you don’t do your research, plan ahead, and handle the situation well. Here are three things to think about before getting your staff out of their seats for a BBQ, picnic, or other summer outing. 1. 5 Legal Dos and Don’ts for Your Holiday Party Our advice for winter, Christmas, or New Year’s parties applies to July Fourth, Labor Day, or any summer parties as well. You want your gathering to be inclusive, not include too much booze, and take care of guests during and after the shindig. And you’ll want to avoid making the merriment mandatory, as well. 2. Alcohol at Company Parties: When to Say ‘When’? Navigating your employees’ liquor consumption during work gatherings can be your toughest job as a boss. Sure, you want everyone to have fun, but not too much fun. And there’s a difference between going out to grab a couple drinks after work and providing those drink for a work-sponsored party. For their sake, yours, and third parties they may come across after the BBQ, make sure everyone at the party drinks responsibly. 3. Employee Hurt or Harassed at Company Picnic: Are You Liable? It’s all fun and games until an employee pulls a muscle, or takes a random ball to the face. And an injury at a company-sponsored event can qualify for workers’ compensation benefits, meaning you might have to investigate and report the incident. Know when you’ll be responsible for ensuring your employees’ safety, and responsible to others for keeping them safe from your employees. So before you put the…

Are Walmart Cashiers Entitled to Sit Down?

Employees already complain that going to work is a pain, especially when they have to stand up for long hours. Many workers are fed up, and have filed a host of class action lawsuits to gain the right to use a chair to sit during their shifts in instances where it is work appropriate. Are workers legally entitled to sit down? A lawsuit by Walmart cashiers seeks to ensure that the answer to this question is “Yes.” Take a Seat — Going to Trial Recently, a federal judge ruled that a trial is necessary to decide whether Walmart cashiers are entitled to take a seat while doing their jobs. Walmart had tried to get a judge to dismiss a part of this class action case, but to no avail. Now that another similar case has been resolved in Kilby vs. CVS, the federal judge is ready to move forward in the case. Walmart may have a tough road ahead of them to prove cashiers should not be allowed to sit down. In the CVS case, the judge determined workers are entitled to sit down when their jobs permit it. Walmart cashiers will now try to prove their jobs can be done just as well sitting as standing, which was the standard established in the CVS case. Walmart, on the other hand, will try to prove that it is impossible to be a cashier just as well from a seated position as a standing. As you can imagine, this will require the review of many facts and opinions, and that’s why the judge has allowed this case to go to trial. Walmart Is No Stranger to Class Acton Lawsuits From Its Workers Though workers have many broad workplace rights, they have few specific ones, and these rights, both state and federal, are often left to be decided upon in court. Walmart has been subject to many workplace suits over the past decade, paying out over $1 billion to employees and their attorneys. Recently, Walmart was forced to hand over $640 million in class-action lawsuits to compensate employees for rest breaks and…

Is It Time to Update Your Employee Time-Off Policy?

It is a great time to be an employee. With low unemployment rates, companies are scrambling to find and retain the best employees. Job seekers can afford to take their time and choose their next role wisely, depending on their own criteria. While some are looking for a great title, and others for top compensation, a growing number of people are looking for a balanced quality of life with guaranteed time off. As an employer, it might be a good time for you to update your time-off policy. Are Companies Required to Give Vacation Time-Off? Absolutely not.There are no federal or state laws mandating vacation days. Government workers must get federal holidays off, but private companies aren’t even required to do that. The only policy employers are required to abide by are those self-posed rules in their own Employee Handbook. So is it time to update your Employee Handbook? That’s a question that each company has to decide individually. What About Time-Off for Health Reasons? There are federal, state and local rules governing time off to care for family that has fallen ill. The Family Medical Leave Act (FMLA) requires some employers to give up to 12 weeks of unpaid leave per year to care for a sick family member as well as for a new child. Workers can also get even more time off for prenatal care and pregnancy complications that prevent working. Some states, like California, require FMLA to give partial pay for those where pregnancy has left them unable to work. There are numerous state and local laws expanding the reach and scope of FMLA, so be sure to check those in your area. If the employee is disabled, or becomes disabled, the Americans with Disability Act will also apply. As for employee sick time, again, this is mandated by your Employee Manual. Employers can make whatever rules they see fit, in terms of paid/unpaid, protocol for calling in, etc. But remember, it’s best to standardize this policy. Be as specific as possible. Who needs to be informed? What is the deadline for calling in? Do employees…

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