Franken Amendment signed into law!

 
On Saturday, December 19, President Obama signed the spending bill — which included the Franken Amendment — into law. The Franken Amendment prohibits the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.

In celebrating this momentous occasion, the Fair Arbitration NOW Coalition specifically recognized NELA’s valuable contribution to the passage of the Franken Amendment. NELA Legislative & Public Policy Director Donna Lenhoff was joined by hundreds of NELA members across the country who responded to our call to action. For more information about the Franken Amendment click:
http://legaltimes.typepad.com/blt/2009/12/obama-signs-into-law-restriction-on-arbitration-clauses.html

Happy holidays to all and thank you for Working for Change!

Assistant Store Manager sues Ocean State Job Lot for overtime!

On August 18, 2009, Omar Morrison filed a law suit against Ocean State Job Lot, Inc. and Ocean State Jobbers, Inc. claiming that he had been misclassified as an employee that was exempt from the overtime provisions of the Fair Labor Standards Act.

Mr. Morrison is suing on behalf of all current and former Ocean State Job Lot assistant store managers at all Ocean State’s stores in the Northeast.  Under the Fair Labor Standards Act, employees are entitled to overtime unless they are bonafide executives or administrative employees.

Ocean State will have to prove that Morrison and other Assistant Store Managers have management as their primary duty.

Ocean State Job Lot’s attorneys initially filed a motion to dismiss the action on the theory that they are Rhode Island corporations that do not conduct business in Connecticut.  Attorney Richard Hayber, who represents Mr. Morrison, stated in an interview, “The instances where a parent company can successfully make a claim that it isn’t an employer of all its companies employees is when it is a passive holding company of the stock of these other companies.  That isn’t the case here.  Ocean State’s CEO, Marc Perlman, and his executive staff, write the procedures that are enforced in all the stores.  The corporate offices are connected in real time to all the stores and they do the hiring for the stores.  Mr. Perlman even records a Friday voice message that’s heard every week in all the stores by the employees.  The subsidiaries are LLCs or corporations which all have Ocean State Jobbers, Inc. listed as the primary contact.  These companies don’t have independent procedures, independent control.”

Ocean State’s motion to dismiss was denied as moot by the Connecticut District Court.  Any Ocean State Job Lot assistant managers who are interested in joining this action should contact Attorney Hayber at his web site.  A consent form to join the action can also be found here.

Supporting the Federal Employment Non-Discrimination Act

The importance of workers being allowed to find employment and rise and fall by their own merits at their jobs cannot be overstated.  One Congressional bill seeks to make this a reality for innumerable Americans around the country.  The Employment Non-Discrimination Act (ENDA), introduced by Representative Barney Frank (D-MA), is a bipartisan piece of legislation aimed at making discrimination against gay, lesbian, bisexual, or transgender individuals illegal.

Around the country, hard-working Americans of differing sexual orientation and gender identity are being discriminated against without recourse in the law.  While some state laws and constitutions protect individuals from discrimination on the basis of sexual orientation and gender identity, it is still currently legal in 29 states to discriminate on the basis of sexual orientation, and legal in 38 states to discriminate on the basis of gender identity.  ENDA would extend similar statutory protections to gay, lesbian, bisexual, and transgender individuals that Title VII currently extends to workers on account of race, gender, religion, ethnicity, and national origin.

Commentators have noted that the enforcement of local and state antidiscrimination measures has proven to be ineffective and insufficient to adequately protect these individuals from invidious discrimination in the workplace.  Studies such this one by William B. Rubenstein suggest that workers are being discriminated against in the workplace at a rate roughly equal to discrimination based on race and gender.

It is clear that the protections of ENDA are necessary to ensure that gay, lesbian, bisexual, and transgender workers are allowed to obtain employment and to have a workplace free from employer discrimination.  We encourage you to contact your representatives in Congress and voice your support for ENDA to secure the same rights in the workplace for alternative sexualities and gender identities as are present for heterosexual workers!  Click here for assistance in finding your representative!

Underwriters Entitled to Overtime, Says the Second Circuit!

On Friday, November 20, 2009, the Second Circuit delivered an opinion holding that loan underwriters at J.P. Morgan Chase are entitled to overtime wages under the Fair Labor Standards Act.  This is an important decision dealing with an issue that, up until last Friday, had not been definitively decided by the Second Circuit.  The Second Circuit is made up of Connecticut, New York, and Vermont.

Plaintiff-Appellant Andrew Whalen argued that, during his four years as a loan underwriter for Chase, he was incorrectly categorized as an overtime exempt employee, that he worked overtime frequently during that time, and that the District Court had incorrectly dismissed his case against Chase.  The Second Circuit agreed, reversing the decision of the District Court.

The Second Circuit held that Whalen’s work as an underwriter constituted “production” work rather than “administrative” work.  Employees who perform administrative duties may be exempt for the purposes of the Fair Labor Standards Act, but employees who are engaged in work that is classified as production work are generally not exempt from being paid overtime wages, absent some other exception within the statute.

Underwriters (perhaps even including insurance underwriters) around Connecticut and the rest of the country should take notice that they too may have a claim for overtime compensation, regardless of whether their employer has classified them as exempt from overtime payments.

Keeping Informed on Arbitration Issues in Congress

Those who follow this blog may notice that we have taken a keen interest in the issue of employer-mandated arbitration as a condition of employment.  It is a practice that has been increasingly widespread amongst large employers in recent years, and the effect may be that employees will have a harder time vindicating their statutory rights in the court system.

Earlier this year, on April 29, 2009, Senator Russ Feingold (D-WI) proposed the Arbitration Fairness Act of 2009 (S. 931).  The key phrase in this bill that pertains to employee rights is found in section 402(a), which reads:  “Notwithstanding any other provision of this title, no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment…dispute.”

A similar bill (H.R. 1020) was proposed on March 16, 2009, in the House of Representatives by Representative Henry Johnson (D-GA).  While the text is not precisely the same, this House bill similarly prohibits predispute arbitration agreements in the employment context, and goes even further to prohibit arbitration agreements in cases where the dispute arises from a statute intended to protect civil rights.

This legislation is an important step in the right direction in protecting employees’ right to bring their grievances before a judge or jury in a court of law.  Senator Feingold, Representative Johnson, and the bills’ co-sponsors recognize that arbitration agreements were always intended to be a bargain between two parties with equal bargaining power, rather than a unilateral imposition on an employee who has no choice in the matter but to accept or quit her job.  Senator Feingold’s statements on the floor of the Senate at the bill’s introduction can be found here.

For those who are interested in informing themselves about the issues involved and the arguments to be made on this legislation, Cornell University ILR School hosted a web seminar on November 5, 2009, that is available to any who wish to watch.  The registration page for this seminar can be found here.

Home Depot Assistant Managers Fight for Overtime

On November 9th, Kyle Diamond and Areceli Mendoza, two former Home Depot Assistant Store Managers, filed for class certification in a suit against their former employer, Home Depot.  The plaintiffs claim that Home Depot purposely misclassified them as salaried employees, which denied them access to traditional overtime benefits that hourly wage earners typically receive.  Diamond and Mendoza have hired Squitieri & Fearon LLP to represent them in the action.  We have posted about employers attempting to dodge their responsibilities to their employees with respect to overtime benefits in the past (see our posts on CVS, GameStop and Staples).

We post this in order to alert Connecticut Home Depot employees that were classified as assistant managers of the existence of this class action suit, and to inform them that they may have a similar claim against the company.

This is not the first time that Home Depot has been sued for misclassifying employees as assistant managers, people who were given the extra responsibilities of management without being given most of the privileges of a managerial position.  In July, former assistant managers working for Home Depot filed suit for the same reasons.  The exploitation of workers by companies who wish to deny them the benefits of management, while denying the benefits of overtime, needs to stop.

For information regarding overtime exemptions, visit the Connecticut Department of Labor web site.

“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.