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stockvault-hamburgers141793“McJobs” may soon come with a side of leverage for workers who find themselves the victims of labor law violations. In a surprising move, the general counsel for the National Labor Relations Board (NLRB) last month permitted regional directors to name McDonald’s Corp. as a joint employer along with its franchisees in several pending actions. This marks a major shift to the traditional liability issues in the franchise world, where franchisees are essentially independent contractors who pay royalties to use the systems and products of the parent company, but are solely liable for any labor law violations against their W-2 employees. While this move doesn’t carry the binding power of a ruling, the potential changes it brings caught plenty of attention from the franchise world.

Under this new model, the parent company could share in the responsibility for unlawful labor practices by their franchisees. Lawyers on the corporate sides argue that such responsibility for oversight of what could be tens of thousands of franchisees would be impractical if not impossible. Workers’ and labor groups, on the other hand, point out that the parent companies already exercise a great deal of influence and control in micromanaging almost every other aspect of the businesses, from stock to procedures to store design to intellectual property and advertising. Such strict control of day-to-day operations, they say, voids any industry arguments that ensuring franchisees adhere to labor standards would require extraordinary efforts.

The move by the NLRB goes beyond McDonald’s, fast food, or even restaurants in general and could affect all kinds of retail stores and service providers who operate on the the franchise system. Adding a layer of responsibility to the franchisor-franchisee relationship would come at some financial cost to the corporate home offices, even as the franchise establishment market continues to grow. Naturally, there’s been a collective freak-out by industries and companies around the country. The recurring speculative concern is that a corporate parent ensuring basic labor laws are followed at their franchises will somehow have a negative effect on job creation.

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After disappearing from his website earlier this month, Georgia Governor Nathan Deal’s executive orders are back online. Among the routine list of dozens of appointees to various boards and commissions, many had hoped to see the long-rumored “ban-the-box” order that would help remove employment barriers for convicted criminals who have served their time. Unfortunately for those hoping for the change, it looks like the wait will be a little longer. The good news for them, however, is that a growing movement of both public and private employers across the country is pushing to eliminate a major hurdle for many people trying to re-enter the workforce.

Anyone who’s filled out an employment application has encountered the question “Have you ever been convicted of a felony (or crime)?” Check the ‘NO’ box and the application gets judged on other merits. But check the ‘YES’ box and, in most situations, the further explanation had better be compelling to hold the hiring manager’s attention, that is if they haven’t already decided to pass on the applicant. The ban-the-box movement sees this question as unnecessarily prejudicial, effectively making convicted felons unemployable long after they’ve paid their debts to society.

Back in the spring, Governor Deal said the details were being worked out for an executive order to ban the box from applications for state jobs. This would make the State of Georgia the latest in a substantial list of employers who have broken down the barrier, like Target, Walmart, and Bed Bath & Beyond–as well as more than 60 cities and counties across the nation, including Atlanta and Memphis. Of course, masked in this movement is that, at its core, ban-the-box is as much about fair hiring practices as it is about helping to reduce crime, since Bureau of Justice statistics show two-thirds of released prisoners will be arrested for another crime within three years, and three-quarters will be re-arrested within five years. The ban-the-box notion is straightforward. If former convicts can’t find work, they’ll have little choice but to revert to criminal activity, so let’s give them a chance to go straight.

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school-bus-red-light-655548-mRecently, a federal court in Georgia ruled in favor of the employer in a case of racial and gender discrimination involving a white male employee.

In Tyler v. Muscogee County School District, Edward Tyler was a white male bus driver for the Muscogee County School District who ended up being passed over twice for promotions that were instead given to a black female and a white female, respectively.  Tyler believed that he was not given a promotion due to his race and gender, and he eventually filed a lawsuit pursuant to Title VII of the Civil Rights Act of 1964.  The School District filed a motion for summary judgment, claiming that Tyler had not produced enough evidence to show that its decision was based on discrimination.

The court looked at the facts to see if Tyler had established a dispute of fact as to whether his employer discriminated against him.  Tyler had been employed as a bus driver for the School District since 1976 and had a flawless driving record, with no reported accidents throughout his 38-year career.  Tyler had a bachelors degree in business management from an online institution and had trained other School District drivers prior to the requirement that trainers be certified.  In January and October 2012, Tyler applied for two positions that would have promoted him.  The School District claimed that it chose other candidates for those positions based purely on their qualifications.  To evaluate candidates for promotion, the School District would appoint a panel to interview the candidates, which then completed a written evaluation form that included assigning points in different categories relating to the position’s job duties.  Although points were figured into the final decision, they were not the only important factor.  The panel claimed to look at the totality of circumstances.  Based on that, the panel made a recommendation to the Transportation Director, who might then affirm the panel’s decision and forward it to the School District’s Chief Operations Officer, the Superintendent, and the Human Resources Department.  Finally, the recommendation would be sent to the School Board for final approval.

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kids-at-play-1152328-mRecently, a federal court in Georgia granted a motion to dismiss a case involving wrongful termination and violations of the Equal Protection Clause, among other claims.

In Fareed v. Cobb County School District, Inc., Gary Fahreed worked as a school patrol officer for the Cobb County Public Safety Department from October 2012 until May 2013.  When the students left for summer break, Fahreed assumed that he would resume his position after the next school year began.  Instead, Fahreed was informed that his position had been moved from the Public Safety Department to the Cobb County School District.  Fahreed was given instructions to complete an application and told by human resources for Cobb County School District to report on August 13, 2012 to complete the paperwork.  Then, on August 9, the human resources department told Fahreed to not report to work until Fahreed had contacted them.  On August 12, the human resources department instructed Fahreed to check with his supervisors before reporting to work.  Later that day, human resources told Fahreed that he was disqualified from the position due to possessing a criminal background.  Fahreed claimed that he had revealed his criminal conviction not only in the application, but also to his former employers.

Fahreed filed an action in court alleging intentional infliction of emotional distress, breach of the covenant of good faith and fair dealing, wrongful termination, and violation of the Equal Protection Clause of the Fourteenth Amendment.  The defendant, Cobb County School District, filed a motion to dismiss under 12(b)(6), failure to state a claim upon which relief could be granted.

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work-on-train-924824-mA district court in Tennessee has permitted some claims in a sexual harassment suit to move forward after one male employee accused a male coworker of inappropriate behavior.

In Smith v. Rock-TENN Services, Inc., Jeffrey Smith worked for Rock-Tenn Services, Inc., a box and packaging materials manufacturer from August 2010 until the end of September 2011.  Around the beginning of 2011, Smith claimed that a male coworker, James Leonard, slapped him on the rear during a shift.  In accordance with the company’s sexual harassment policy, Smith first informed Leonard that he did not want Leonard touching him.  A few days later, Leonard allegedly grabbed Smith “in the crack of his butt,” hard enough that his rear was irritated for two days.  This time, Smith grabbed Leonard by the arm and threatened him, but he did not report either incident to a higher authority.  However, Leonard was eventually placed on a performance improvement plan for “horseplay sexual harassment” after another employee reported him.  Leonard was informed that any further sexual harassment allegations would be grounds for termination.

Nonetheless, in June 2011, Smith claimed that Leonard grabbed him by the hips while he was bent over a machine and thrust his genitals against him.  Smith then grabbed Leonard by the throat and held him for roughly 30 seconds before releasing him.  Smith then reported the incident to his supervisor, as well as to two other supervisors.  One supervisor he informed of all three incidents.  After an investigation was done, the supervisors concluded that Leonard should be terminated.  However, the general manager, who was unaware of all three of Leonard’s actions toward Smith, disagreed and thought that the evidence was only enough to merit a three-day suspension as a final warning.

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watch-1151921-mA federal court in Georgia has granted a motion for summary judgment in a sexual harassment case and entered judgment in favor of the employers.

In Denmark v. RPM, Inc., Tina Denmark, an African American woman, worked for TCI Powder Coatings as a quality control technician through an agency, The Staffing People, Inc., from 2008 until 2009.  During that time, Denmark claimed to have suffered from gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964.  After she filed her lawsuit against both TCI and The Staffing People, TCI filed a motion for summary judgment. It argued that Denmark failed to satisfy the administrative prerequisite to filing a suit under Title VII, that her claims did not establish a prima facie case for gender discrimination, sexual harassment, or retaliation, and that Denmark failed to meet the burden of raising a dispute as to whether TCI’s reasons for terminating her were just a pretext.

The court examined whether TCI’s claims had merit.  Denmark worked through The Staffing People at TCI’s small batch plant in Ellaville, Georgia, before being promoted to work in the main plant.  Although Denmark’s job duties were assigned by TCI, she was required to execute a checklist before starting her position that acknowledged The Staffing People’s policies and procedures.  Among other things, The Staffing People required Denmark to contact both TCI and The Staffing People if she was ever going to be late for work.  The Staffing People permitted one instance of tardiness and one absence in the first 90-day period and each 90-day period thereafter.  Should Denmark be terminated from TCI, she would also be terminated from The Staffing People.

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shaking-hands-911615-mA federal court in Georgia recently partially dismissed an employment discrimination suit on the grounds that the plaintiff failed to state a claim.

In Williams v. Vilsack, plaintiff Mary Williams filed a complaint “pro se,” which means that she did so without representation by an attorney, claiming that she was discriminated against due to her race and gender, and also faced a hostile work environment.

Williams worked for the United States Department of Agriculture, which she claimed discriminated against her in the form of reprisal for a previous report of discrimination, when Williams’ employer denied her a non-competitive promotion to another position.  Williams filed her complaint in 2008, and the matter went before an administrative law judge at the Equal Employment Opportunity Commission (EEOC).  In 2010, the judge found that the USDA did not discriminate against Williams on the basis of reprisal, and Williams appealed the Final Order.  Yet in February 2013, the EEOC Office of Federal Operations affirmed the Final Order and denied Williams’ request for reconsideration.  Williams then filed a civil lawsuit in federal court in December 2013.

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time-1267744-mA federal court in Tennessee recently rejected an employer’s attempts to have a retaliation case dismissed.  In Sanders v. Whites Creek Healthcare, LLC, Lesia Sanders had filed a retaliation case under the Fair Labor Standards Act (FLSA), claiming that she was terminated from her position after reporting her employer’s illegal labor practices.

Sanders allegedly observed that a member of Human Resources was altering the employees’ time sheets and failing to pay hourly employees proper wages for work they performed off the clock.  On “numerous” occasions, she allegedly informed her immediate supervisor that certain employees were not being properly compensated, and she also attempted to inform her District Manager, only to be ignored.  Following her report, Sanders was placed on a performance improvement plan, followed by suspension and then termination.  Sanders’s termination letter reportedly stated that her sole reason for termination was that she was aware a member of Human Resources was violating federal law and the employer’s policies yet “continued to condone” Human Resources’ practice.

Sanders filed a lawsuit in federal district court, and Whites Creek Healthcare filed a motion for summary judgment to have it dismissed.  The federal court looked at whether, as Whites Creek Healthcare claimed, there was no genuine issue of material fact, and Whites Creek Healthcare was therefore entitled to judgment as a matter of law.

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telephone-4-948175-mA federal court in Georgia recently permitted conditional certification of a class of Home Service Consultants in Randle v. AllConnect, Inc. The plaintiffs seeking conditional certification had charged that their employer, AllConnect, had failed to pay overtime compensation for all hours in excess of 40 per week, and that AllConnect failed to pay overtime compensation at the required overtime rate, in violation of the federal Fair Labor Standards Act (FLSA).

AllConnect was a company that provided third-party sales support for telephone and cable service providers. The main plaintiff, Ayisha Randle, worked at the Atlanta-based Allconnect call center from March 2012 through November 2013. Randle’s duties as a Home Service Consultant were to receive telephone calls from potential customers, sell them new services, and set up their accounts. Randle received pay on an hourly basis as well as a commission based on her sales. She received supervision from her team lead, Crystal Johnson, who reported to Victor Moore, the Floor Manager.

Randle argues that AllConnect managed to avoid paying Home Service Consultants for all of the hours worked per week by having a policy that required them to work off of the clock to complete their sales calls. Randle’s supervisor would direct to log off of the company’s telephone system (and timekeeping system) at the end of her shift, but still direct calls to her so that she was required to continue working. In a typical week, Randle claims that she worked three to five hours off of the clock. In January 2014, Randle finally filed a claim, seeking to represent current and former Home Service Consultants from AllConnect’s Atlanta-based call center within the last three years who were not paid overtime for their off-the-clock work. She then moved to have AllConnect produce the names and addresses of potential class members. AllConnect motioned that it did not oppose conditional class certification.

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raw-skewers-1441628-mRecently, a federal court in Tennessee permitted a case to move forward that raises the question of whether the Fair Labor Standards Act (FLSA) permits compensation for work activities that “bookend” a 30-minute meal break.

In Abadeer v. Tyson Foods, Inc., employees at Tyson Foods were required to remove, wash, and stow their frocks and other equipment during their 30-minute meal break.  This activity lasted from five to eight minutes.  They then needed to be suited and ready to return to work by the end of the 30 minutes.  The employees claimed that Tyson Foods automatically took them off of the clock during this time, even though they were not really at lunch.  The employees initially claimed that Tyson was either liable to them for the entire 30-minute period, since it was not a “bona fide meal period,” or at least for the work they performed during the 30-minute break, since it was part of a continuous workday.  They eventually discarded the first claim and kept the second, which was that work performed during the meal period was compensable.

Tyson Foods tried to argue that the employees’ complaint did not put them on adequate notice of their claims, but the court disagreed.  The company then filed a motion for summary judgment, arguing that the employees could not seek compensation for activities performed during the 30-minute unpaid period.  Tyson Foods claimed that, due to precedent set by the Sixth Circuit, employees were not permitted to “carve out” such activities and divide the meal period into portions that were compensable and noncompensable.  An employer in such a situation should not be held liable unless the employees failed to receive the “predominant benefit” of the entire period.

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