Articles Posted in Employment Law

A new rule issued by the Department of Labor (DOL) amends the Family Medical Leave Act’s (FMLA) definition of “spouse” to include same-sex couples married in states where same-sex marriage is legally recognized.

Under the new rule, codified at 29 C.F.R. § 825.102 and 825.122(b), two people are married for purposes of the FMLA if the jurisdiction in which they were married recognizes them as legally married. The old rule looked to the place of the couple’s residence, which meant that same-sex couples who resided in Georgia and Tennessee were not currently eligible for FMLA leave, even if they were married in one of the growing number of states that has legalized same-sex marriage.

The new rule also contemplates couples married outside the United States. A same-sex marriage or same-sex, common-law marriage originating in another country will be recognized under the FMLA so long as the couple could have been married or common-law married in at least one U.S. state.

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Recall, if you will, the plight of Seinfeld’s George Costanza. Embarrassed by a co-worker’s snide comment at a big meeting, he spiraled into near-psychosis while fixating on the “perfect” comeback he only thought of long after the fact. Determined to use his confusing “jerk store” retort, he stalked the co-worker even after he moved on to a new job two states away just to induce his nemesis into repeating the original comment in another meeting. When everything fell into place, Costanza unleashed his well-rehearsed insult, only to have it turned back on him by some quick thinking he didn’t expect.

To be hoisted by one’s own petard in a business meeting is one thing, but to have it happen in front of a virtually unlimited international audience is quite another, as one bitter former employee discovered recently. Having been fired by the social network Reddit, the former employee decided it would be a good idea to use the company’s own popular “Ask Me Anything” (AMA) forum to discuss his old job and speculate on what lead to his dismissal, despite having signed a non-disparagement agreement. While things started off civilly enough, the former employee’s musings on why he was fired devolved into several attacks on the company’s policies and culture. That’s when the CEO of Reddit stepped in to clear some things up.

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By looking at the uniforms and the trucks and scanners and just about everything else associated with any FedEx delivery driver, it’s more than reasonable that one would naturally assume they’re part of a massive payroll consisting of tens of thousands of employees for the Tennessee-based corporation. FedEx, however, would tell you that assumption is wrong. Instead, the company has a lengthy history of using independent contractors with dedicated routes to deliver its packages around the country.

Outfitted with FedEx logos, uniforms, and operating systems, it’s easy to see why a layperson might confuse the independent contractors for employees, and now courts around the country are beginning to agree. Fueled primarily by a string of class action labor lawsuits brought by FedEx drivers, state and federal courts have been thrust into deciding whether those drivers can proceed on claims reserved for employee-employer relationships. Last month, a pair of decisions from the Ninth Circuit appeals court found that, at least in California and Oregon, those drivers are actually employees of FedEx.

Spurred by claims for unpaid overtime and employment expenses as well as Family and Medical Leave Act violations, among other things, the first hurdle for the hundreds of drivers represented by the class action was to prove themselves eligible to recover on those bases. Doing so meant demonstrating that their arrangement with FedEx fell under the purview of employment. In a previous blog post, we discussed some of the basics of what distinguishes independent contractor status, but the Ninth Circuit went into great depth as it picked apart the many factors that demonstrated how little “independence” these drivers actually have.

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As the first American set to orbit Earth sat in a tiny capsule atop a giant rocket in February 1962, fellow astronaut Scott Carpenter wished him good luck with a succinct, “Godspeed, John Glenn.” Moments before, however, Carpenter was cutting the tension with a line that immediately became part of the Apollo Program’s lore and lexicon: “Remember, John, this was built by the low bidder.”

While very few endeavors will have the gravity of cobbling together millions of parts to build a missile capable of putting a human into space, there are plenty of reasons to wonder if we are getting what we paid for when we go as cheap as possible. There is, of course, the suspicion that lower prices may lead to cutting corners that will be reflected in the quality of materials and even the level of care in craftsmanship. But what if that low bid came at the expense of labor laws and undermined the economic health of a community?

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A fairly common trick many law school professors like to play on new students is to hand them a pretty lengthy agreement of some sort and ask that they sign and date it. Most everyone complies and hands them back in within a matter of seconds. A handful of stragglers takes their time and hands theirs in after a minute or so. It’s at that point the professor will congratulate the slower group and admonish the early birds for skimming or even ignoring the contents of the agreement. Sometimes the text explicitly says something like “don’t sign this” or “hand it in face down” just to see whether anyone’s paying attention.

The point of the exercise is to make it clear to people on their path to being lawyers that they should never again sign anything without reading and understanding the agreement. Being constantly bombarded with contracts, whether it’s leases or mobile phone agreements or even the terms of service for iTunes, it’s hardly uncommon to skip the slew of boilerplate language and just sign or click to save time and get on with life. But the law professors want the students to realize it’s now their duty to peruse all those clunky words, and there’s no reason the same rule shouldn’t apply to everyone, since making sure you know what you’re getting into ultimately is for your own protection. As a recent case from the Georgia Court of Appeals shows, it’s sometimes to your benefit, too.

In July, the Court of Appeals reminded us that it always pays to cross one’s Ts and dot their Is. The case of MAPEI Corporation vs. Prosser was a battle over which employment contract was binding when the employee was given two separate agreements on different dates with different terms. At first, anyone who’s dealt with employment contracts might guess that they know where this story is going, since the employee usually has little input or influence on the company’s standard terms, making the contract less of an evenly-negotiated agreement than it is an edict of “here’s how it’s going to be if you want to work for us.” This time, however, the contract-happy company didn’t come out the victor.

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Much as single days celebrating mothers and fathers seem to fall short of fully acknowledging everything they do for their families, a lone Monday off in honor of America’s hard workers is far from all the reward they deserve. Of course, that shortfall is unfortunately what keeps employment law attorneys busy the other 364 days of the year. Instead of focusing on all that needs fixing to help ensure workers’ rights, however, today is a good day to reflect on some of the biggest labor wins of the past century.

By any objective standard, the Fair Labor Standards Act (FLSA) of 1938 should be near the top of victories for the working class. After decades of failed efforts to right wrongs that included excessive child labor, six-day work weeks of 10 or more hours a day, and unlivable wages, President Franklin D. Roosevelt and Congress engaged in years of back-and-forth negotiations to finally arrive at a bill that banned oppressive child labor, capped the work week at 44 hours, and set a minimum wage of 25 cents an hour–about $3.32 in 2014 dollars. (A detailed and compelling history of the FLSA can be found on the U.S. Department of Labor’s website.) While the FLSA couldn’t begin to solve all the ills faced by the labor force, and it didn’t achieve the 40-hour week or 40-cents-an-hour minimum wage that many had pushed, it cemented a huge win for workers’ rights.

Almost 80 years later, conditions for workers have generally improved. Still, access to fair, livable wages continues to dominate much of the conversation about what the labor force needs, with President Obama and labor unions using today to further their efforts to increase the federal minimum hourly wage from $7.25 to $10.10. So far, opponents have stalled any national movement on the issue, but several states and municipalities have already enacted higher minimum wages, with Seattle going so far as to raise it to $15 per hour.

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Recently, 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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Many individuals who work in Georgia are already aware of the fact that their employment is “at will.” What that means is that an employer in Georgia is allowed to terminate an individual for practically any reason. Georgia courts typically state that an employee can be terminated for a good reason, a bad reason, or no reason at all. So how can someone working in Georgia be “wrongfully terminated?” The answer is that there is no generic claim in Georgia for “wrongful termination.” Instead, there are various specific claims—such as retaliation, discrimination, or breach of contract—that sometimes arise when an employee is terminated.

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The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against the owner of a well-known Atlanta-area restaurant/nightclub, Taboo 2 Bar and Bistro. The agency has alleged that Sirdah Enterprises, Inc. broke the law by permitting, on an ongoing basis, sexual harassment to take place with respect to its female servers throughout the course of their careers with the company.

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There has been a fair amount of buzz in the media about undocumented workers and fair wages for those individuals in recent months. Many Georgia employment lawyers have noticed that immigration reform is a topic of interest for many people, particularly the millions of immigrant workers who are part of the workforce in the United States. In fact, according to a MintPress news article, a three-judge panel decided that, regardless of an employee’s legal status in the United States, all employers are required to pay those workers legal wages, along with any other monies that have been promised to such workers.

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