“Fired!” Places Unemployment in a New Perspective

Annabelle Gurwitch had a great job working on a musical with Woody Allen.  That is, until Woody fired her.  After spending a great deal of time commiserating with her friends and colleagues on the experience, Annabelle realized that what she found intriguing about her situation was not that she had been fired, but the stories that so many people had to tell of the experience.

Enter “Fired!,” Gurwitch’s 2007 documentary that puts a slight comedic twist on the experience of being “canned,” “let go,” “sacked,” “getting the axe,” or any of the other words and phrases everyone out there uses to describe the ordeal of losing a job.  Make no mistake though; this documentary is not all about laughs.  Aside from the array of comedians that tell their (often amusing) stories of being let go (including Tim Allen, Bruce Cameron, David Cross, and Andy Dick), Gurwitch hits the streets and the job fairs to hear stories from everyday people as well.  Above all, the film attempts to place unemployment in perspective and let the viewer know that as personal and insulting being fired can be, it isn’t the end of the world.

In the end, “Fired!” is a film that lets the viewer know that sometimes being fired is life’s way of telling us that it is time to move on to the next chapter of our lives and make something happen.  Being fired is one of life’s most difficult experiences, but this film is worth a viewing because it places the problem in perspective, while also giving us something to smile about.  While it is not a perfect film, it contains a lot of insight into just why we feel the way we do when we get the dreaded news and hopefully how we can cope with the pain and move on with our lives in a constructive way.

Click here to view the movie trailer.

Obama Taps David Lopez to Serve as EEOC General Counsel

The White House issued a press release last Thursday announcing President Obama’s intention to appoint David Lopez to serve as General Counsel to the Equal Employment Opportunity Commission.  Lopez has 13 years of experience at the EEOC and, prior to his entry into government work, he worked as an associate at Spiegel & McDiarmid LLP.  He currently serves as a supervisory trial attorney in the EEOC’s Phoenix District Office.  Lopez also has experience working at the Employment Litigation Section of the Civil Rights Division of the Department of Justice.  If he accepts the nomination, Lopez will inherit the position from Deputy General Counsel James Lee, who took over the operations of the Office of General Counsel after former EEOC General Counsel Ronald Cooper stepped down in early February.

The EEOC is charged with enforcing federal antidiscrimination law around the country, and the position of General Counsel will entrust Mr. Lopez with the responsibility of representing employees around the country in potentially groundbreaking litigation.  One notable case in recent memory is EEOC v. Walgreen Co., a nationwide antidiscrimination class action suit that ended in March of 2008 with a payment of over $24 million to thousands of African American workers.  While working in Phoenix, Mr. Lopez tried a case against GoDaddy.com that lead to a verdict of $242,000 for discrimination on the basis of religion against a Muslim employee.

We applaud and endorse Mr. Lopez’s appointment and encourage him to continue the fight for employees who are the victims of discrimination in the workplace.  This appointment is clearly important to the work force in Connecticut, as well as throughout the entire country.  We wish Mr. Lopez luck in his endeavors on behalf of workers everywhere, and hope that he always remembers just how important his position can be to victims of workplace discrimination throughout the United States.

Rising Unemployment Trend Continues in Connecticut

The Hartford Courant has a story on the rising unemployment in Connecticut.  The news isn’t particularly good, as the unemployment rate rose from 8.1% to 8.4% in September.  In total, Connecticut lost 6,600 jobs over the course of the month.  While Connecticut is still well below the national unemployment average of 9.8%, the increase in unemployment in September is still considered a significant jump.

While many economists have indicated that the recession has hit bottom, it is clear from this story that we still have a way to go before we’ve dug ourselves out of this hole.  The rise in unemployment marks an increase in job losses compared to August.  Initially, Connecticut job losses in August were reported at 3,700 jobs; a figure that ended up being revised to 4,800.

While it is difficult to gather too much information about the future from a single month’s unemployment numbers, the overall trend has been clearly negative.   The bright spot for Connecticut’s unemployed workforce is that, since Connecticut’s three month average unemployment has risen above 8%, the state is expected to qualify for seven additional weeks of unemployment benefits for workers who are unemployed.  According to the Connecticut Department of Labor, 16,000 unemployed workers would be eligible for those additional benefits.

Franken anti-arbitration amendment passes Senate

On October 6, 2009, in a 68-30 vote, the Senate passed an amendment proposed by Senator Al Franken (D-MN) which would alter the Senate Defense Appropriations bill to prevent defense contractors who imposed mandatory arbitration clauses on employees for employment disputes from receiving federal government contracts.  This was an important step in the right direction for employees everywhere, and we applaud the success of Senator Franken’s amendment.

The fight is not over though.  The bill is now moving to the joint Senate-House Conference Committee.  The list of likely conferees is provided below, and while no Senators or Representatives from Connecticut are on this list, we urge you to contact Senator Patrick Leahy (D-VT) or Representative Norman Dicks (D-WA), and make clear that the Franken Amendment must survive the committee.  Both Congressmen have voiced strong support for fair practices in arbitration when employees are involved.

One story has raised the profile of this very important issue.  In 2005, Jamie Leigh Jones was working in Iraq as an administrative assistant for KBR, an engineering and construction company.  Ms. Jones was drugged and gang-raped on July 28, 2005 by several fellow KBR employees.  On May 16, 2007, Jones filed a civil law suit against KBR in federal court.  KBR argued that Jones had agreed in her employment contract to submit to binding arbitration rather than bringing any employment-related claims to court.  Ms. Jones has spent over two years fighting to secure her day in court to try her ex-employer for the injustice that was done to her.  The Franken Amendment is intended to ensure that stories like this do not happen again.

Click here to see Senator Franken and Jamie Leigh Jones making it clear what is at stake if this amendment does not survive the Conference Committee.

Dow passes 10,000, fails to help workers!

I read in the Courant today that the Dow Jones passed 10,000 for the first time since last year’s down turn.  While this news means that stock prices are back up and that people with investment portfolios have regained some of their wealth, it is not necessarily good news for workers.

Walter Hamilton of the Tribune Newspapers reported that economist Allen Sinai stated that this recovery could be slower and generate fewer jobs than previous recoveries have, producing an even more pronounced gap between economic haves and have-nots. 

“There’s a dramatic night-and-day juxtaposition of a booming stock market and rich financial firms, and jobless Americans” Sinai said.  “Part of the prosperity we’re seeing on Wall Street is because of massive job losses, which preserve profits” of American Companies.

So, the rich get richer and the hard working employees of this state and of this country continue to suffer.   For my part, I don’t believe that our economy is “healthy” until and unless it provides good paying jobs for hard working employees and a legal system that helps protect the rights of those employees.  Corporations these days are not only “too big to fail”, they are too big to control.  As corporations get bigger, they dominate the employment market and have the power to shape the laws that affect employees in the workplace.  Mandatory arbitration agreements, class action waivers and other devices serve to deprive employees of the few rights they have left.  Look for more posts soon on these topics.

Wage violations rampant among low wage workers!

In a study released last week financed by the Ford, Joyce, Haynes and Russell Sage Foundations, low wage workers were found to be the victims of widespread violations of federal minimum wage and overtime laws. 

The New York Times reported that the researchers interviewed over 4,000 low wage workers.  The study found widespread wage violations among the population of the workforce.

Overtime violations were especially frequent.  “Over a quarter of our respondents worked more than 40 hours during the previous work week for a single employer and were therefore at risk for an overtime violation. As Table 3.1 indicates, 76 percent of these “at risk” workers were not paid the legally required overtime rate by their employers. The overtime violation rate among all workers in our sample (that is, regardless of whether they worked overtime or not in the previous week) was 19 percent.”

“These practices are not just morally reprehensible, but they’re bad for the economy,” said Annette Bernhardt, an author of the study and policy co-director of the National Employment Law Project. “When unscrupulous employers break the law, they’re robbing families of money to put food on the table, they’re robbing communities of spending power and they’re robbing governments of vital tax revenues.”

One of the most powerful tools against violations like this is the collective action mechanism found in the FLSA which allows groups of employees to pool their resources and sue as a group.  Employers have attacked these lawsuits recently and their attorneys are constantly finding new ways to undermine them.  See my recent post on collective action waivers.

To those of you who represent these workers, keep up the good work.  To those victims of these illegal practices, fight for your rights!

Third Circuit holds gender stereo typing helps gay workers!

In a post yesterday, I reported that the 3d Circuit Court of Appeals had recently reversed a summary judgment in a Title VII case that had implications for gay rights.  Of course, Title VII does not on its face, prohibit discrimination based on sexual orientation.  It does, however, prevent gender discrimination, including claims of “gender stereotyping.” 

Attorney Katie Eyer, of Salmansaon Goldshaw, P.C., who argued the case on behalf of Prowell stated:

“This decision means a lot to lesbian and gay workers.  It clearly affirms that lesbian and gay workers have the right to bring gender stereotyping claims under Title VII, just like everyone else.  And, the court recognized that gay Plaintiffs can prevail, if they prove their harassers were motivated in party by gender non-conformity – even if those harassers were also motivated by secual orientation.  Gay plaintiffs can no longer be held to a higher standard than everyone else.”

Keep in mind that Connecticut already has a law that prohibits sexual orientation discrimination.  Our Fair Employment Practices Act, administered by the CHRO, provides a cause of action for gay and lesbian employees. 

Again, cudos to Mr. Prowell for his courage, to Katie for her advocacy and also to the Third Circuit for making the right call.

Gay man wins gender stereo-typing case at 3d Circuit!

The 3d Circuit Court of Appeals ruled Friday that a gay man, who was the victim of gender stereo typing because of his effeminate behavior, stated a claim of gender discrimination under Title VI.  Brian Prowell sued Wise Business Forms, Inc.

The 3d Circuit acknowledged that Title VII does not prohibit sexual orientation discrimination.  It does, however, proscribe gender stereo typing.  In fact, the plaintiff in Price Waterhouse claimed and won a claim of gender stereo typing at the U.S. Supreme Court.  The 3d Circuit explained the application of this rule to this case:

     The record demonstrates that Prowel has adduced
evidence of harassment based on gender stereotypes. He
acknowledged that he has a high voice and walks in an
effeminate manner. In contrast with the typical male at Wise,
Prowel testified that he: did not curse and was very wellgroomed;
filed his nails instead of ripping them off with a utility
knife; crossed his legs and had a tendency to shake his foot “the
way a woman would sit.” Prowel also discussed things like art,
music, interior design, and decor, and pushed the buttons on his
nale encoder with “pizzazz.” Prowel’s effeminate traits did not
go unnoticed by his co-workers, who commented: “Did you see
what Rosebud was wearing?”; “Did you see Rosebud sitting
there with his legs crossed, filing his nails?”; and “Look at the
way he walks.” Finally, a co-worker deposited a feathered,
pink tiara at Prowel’s workstation. When the aforementioned
facts are considered in the light most favorable to Prowel, they
constitute sufficient evidence of gender stereotyping harassment
— namely, Prowel was harassed because he did not conform to
Wise’s vision of how a man should look, speak, and act —
rather than harassment based solely on his sexual orientation.

This case should open the door to more suits in federal court, including in this Circuit, by gay men or women, under Title VII.  The plaintiff was represented by Katie Eyer of Salmanson Goldshaw in Pennsylvania.  Way to go Katie!  Nice work.

CVS sued again by more Assistant Store Managers!

Another group of Assistant Store Managers has sued CVS in a collective action for unpaid overtime wages.  I have posted in the past about two pending lawsuits like this.  On June 19, 2009, a third was filed.  This suit is in Florida and seeks to obtain conditional certification of all Assistant Store Managers in Florida.

The Plaintiff is represented by Gregg Shavitz of the Shavitz Law Group. Attorney Shavitz is scheduled to file his motion for conditional certification by October 30, 2009.  If you are an Assistant Store Manager at a CVS in Florida, or have been in the past 3 years, I encourage you to contact Attorney Shavitz.

For more information about the FLSA (Fair Labor Standards Act), you can visit the U.S. Department of Labor’s website.

It is unclear at this time what will happen to all of these Assistant Store Manager lawsuits.  One thing is clear, Assistant Store Managers at CVS seems to want to be paid overtime!  We wish you all good luck.

Federal judge allows waiver of collective action claims!

A federal judge in Illinois has ruled that a release signed at termination which includes a waiver of the employee’s right to bring a collective action is enforceable and bars such an action, EmploymentLaw 360 reports.

Collective actions are like class action, and allow employees to pool their resources and proceed collectively in a lawsuit against their employer for unpaid overtime wages. 

Courts recently have been faced with the issue of whether the right to bring, participate in or recover from a collective action can be waived.  Employers are increasingly including such waivers in their employee handbooks and arbitration procedures.

The 9th and the 1st Circuits have rejected waiver claims like this when unconscionability has been found. 

A case is currently pending before Judge Vanessa Bryant of the District of Connecticut which will place this issue squarely before her.  Justin Pomposi has sued GameStop for overtime violations and has pleaded his case as a collective action.  GameStop has filed a motion to dismiss and to compel arbitration.  GameStop had circulated a Handbook which contained an arbitration provision which itself contained a collective action waiver.  It claims that Mr. Pomposi and all other Store Managers agreed to these terms and waived their rights when they returned to work after having received the documents.  Mr. Pomposi is represented by the Hayber Law Firm and has opposed this motion.  He claims that the roll out of the plan was misleading and is unconscionable and that the enforcement of this waiver would impede his and other Manager’s ability to enforce their rights.

If waivers like the one in GameStop are permitted, FLSA c0llective actions may soon be a thing of the past.