Atlanta Employment Attorneys Blog

Legal Shifts Are Giving Support to New Labor Movements

December 17, 2014 | Parks, Chesin & Walbert

With the economic downturn largely in America’s rearview mirror as job creation and employment continue to rise, there’s been a lot of talk about the quality of many of those new roles. Whether it’s fast food workers or retail employees, the most prominent new labor issue is not whether there are jobs to be found, but whether those jobs offer a living wage. Over the past several months, workers in minimum- and low-wage positions have made increasingly louder demands for higher pay and unionization rights through a string of walkouts and protests around the country. Perhaps a matter of serendipitous timing or the signal of a cultural shift, it seems that lawmakers and courts are giving life and validity to the movement, and employers should start taking notice.

Consider the situation at America’s biggest retailer, Walmart. For the third year in a row, Black Friday shoppers across the country were met by protests from workers and sympathizers demanding a base pay increase to $15 per hour and the right to form a union. Actually, the number of Walmart workers comprised only a small portion of the protesters, with the majority being members of other unions offering support. Whether the protesters actually represent the sentiment of all or even most Walmart workers largely depends on which side of the divide is offering an opinion, but an administrative law judge for the National Labor Relations Board (NLRB) recently sided with employees who said they were unfairly disciplined by the company for their efforts to organize workers.

A Look at Recent Title VII Decisions

December 10, 2014 | Parks, Chesin & Walbert

A broad set of protections, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a number of factors, including race, color, religion, sex, and national origin. Over the past 50 years, courts and lawmakers have dedicated a lot of time to tweaking the law and figuring out how to apply it to situations that may be completely unique or reflective of society’s ever-evolving norms.

Recent months have proved to be no exception, with a number of continuing legal challenges arising under Title VII further defining the breadth and boundaries of the protection it offers. Around the country and even up to the US Supreme Court, Title VII litigation is making for some interesting decisions and debates. Here are some of the more noteworthy questions and revelations of late:

Volunteers aren’t entitled to Title VII protections from employment discrimination

This might strike some as obvious, since the very notion that one is a volunteer rather than a paid employee should be enough to draw a distinction. Numerous other recent suits brought by interns and independent contractors looking to confer employee status upon themselves, however, have blurred the lines more than before. As in those cases, a big question for the Sixth Circuit in Sister Michael Marie v. American Red Cross was the amount of control exercised over the means and manner of the volunteers’ performance.

Courts Continue to Clarify What Constitutes an Employee

December 3, 2014 | Parks, Chesin & Walbert

The economic downturn that began in 2008 changed a lot of things about the job market. Apart from the jump in unemployment rates, may of the jobs that were available were no longer the full-time positions that traditionally served as the norm for the workforce. More roles were converted to part-time or temporary jobs that didn’t include the benefits of full-time positions. Many of these positions also came with a certain degree of instability and no guarantee of hours, while many of the temporary workers being staffed by employment agencies were ceding a significant chunk of their potential earnings to the agencies.

Emerging from this came a rise in independent contractors (“1099 workers” to the IRS), who were often completely competent employees forced out during tough times who remained un- or under-employed for long periods and decided to cut out any middleman as they did piecemeal work where they could. The system worked out well for businesses using the independent contractors, since they were not obligated to offer benefits or even pay employment taxes on the 1099 pool of labor. As long as the workers could exercise a great deal of autonomy as to how they accomplished the assigned tasks and there was some level of impermanence, everyone–including the IRS–was happy.

Privacy, Prying, and Productivity: Balancing Online Access at Work

November 26, 2014 | Parks, Chesin & Walbert

Just a couple of decades ago, some of the biggest unsanctioned communications “perks” an employee might covet would be making a long-distance call on the company dime or using the fax for personal business when no one was looking. Then came the chain emails and funny cat videos one could sneak in between doing actual work. Now, however, an array of social media sites being constantly updated tethers many workers to information and entertainment streams that have nothing to do with their jobs and everything to do with wasting time.

Abstractly, time spent mindlessly browsing Facebook or Twitter while on the clock is time being stolen from the company. To combat the problem, it used to be that businesses could simply add a few firewalls and restrict access to certain sites. As smartphone ownership with high-speed data has become more of the norm, however, there’s less that can be done to stop employees from simply shifting their Internet play time off the company servers and into their palms. But is the time spent goofing off online really any different from time that was once wasted at the water cooler, or have workers merely taken inherent down time to its natural technological extension?

Employment Law Cases Worth Watching at the Supreme Court

November 19, 2014 | Parks, Chesin & Walbert

The US Supreme Court reconvened last month with this term’s docket including several employment law cases, some that might even make for major changes from business as usual. Considering that about 10,000 cases seek review by the Supreme Court, which has great discretion over which ones it will hear, and only about 80 actually make it to oral arguments in the October-through-June term, it’s significant when employment law cases account for about 10% of the roster.

Most prominently among the employment law cases is Young v. United Parcel Service, which will look at whether pregnant employees are entitled to accommodations with work restrictions if similar accommodations are being offered to non-pregnant employees. It’s a test of the Pregnancy Discrimination Act and whether a pregnant employee seeking accommodations should be given the same consideration as a UPS employee injured on the job or one who’s protected by the Americans with Disabilities Act. (Regular pregnancies aren’t considered disabilities.)

Whose Business is it? Some Workplace Boundaries

November 12, 2014 | Parks, Chesin & Walbert

As a kid, everyone seems to have that one friend whose parents are infinitely more permissive than their own. They get to stay up late, eat junk food, and come and go at their leisure. For the envious rest of us, childhood was just a matter of biding time until we were all grown up and could do what we pleased without anyone telling us what to do. All those years of waiting for the freedom we’d only dreamed about seemed poised to bathe us in unrestricted joy…

Then came our jobs. Actual responsibilities and obligations became our new burdens, at least as long as we wanted the income to support our fabulous visions of freedom. Bosses and clients and our direct reports and customers and partners: everyone’s demands whittle away at the dream of complete autonomy. Before you realize it, you’d love it if someone would make you go to bed by 10 on a weeknight, but then who’d get to all those backlogged reports?

You Can’t Take it With You: Non-Compete and Other Agreements

November 5, 2014 | Parks, Chesin & Walbert

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.

Rights and Risks When it Comes to Pregnant Employees

October 22, 2014 | Parks, Chesin & Walbert

With perks like arcades, ball pits, laundry services, round-the-clock meals, and pretty much anything else it takes to coddle energetic young employees not quite ready to assume full adulthood, Silicon Valley firms are legendary for offering workers anything it takes to keep them at their desks instead of tending to an outside life. The latest entry in the “They get what?” panoply of benefits for high-tech workers is egg freezing, currently at Apple and Facebook and, presumably, to be adopted by more companies if it proves popular. While it’s being touted as a generous perk worth around $20,000, there’s no shortage of fierce criticism that it’s simply a manipulative way to extract longer, more focused efforts from younger employees the companies don’t want to see distracted by families and greater work-life balance. (It’s worth noting that, in some cases, the offer is extended to spouses of employees, so it’s not just the female workers who are affected by the new benefit).

While the debate about whether such a program assists or coerces delayed family planning is new enough that it should provide plenty of back and forth for quite some time, a much more established consideration for women of childbearing age is how a pregnancy would affect their jobs. Despite some longstanding laws designed to protect pregnant workers’ livelihoods, there is often a good deal of confusion for both them and their employers regarding rights and obligations.

An Employee’s Right to a Safe Work Environment

October 15, 2014 | Parks, Chesin & Walbert

With all the misplaced fears and manufactured hysteria about the first Ebola case diagnosed in the US, it is not hard to assume most people are happy they are not health care workers in that Dallas hospital. Unfortunately, it looks like at least one of the nurses caring for the initial victim is testing positive for the disease, and dozens more workers who had direct and indirect contact with the infected individual are being quarantined and monitored for the next couple of weeks. The chance of contracting a virus that is killing more than half of its victims in Western Africa is a high price for anyone to pay for choosing a career in medicine, but that is the risk they assumed when they took the job, right? Not exactly.

While health care workers are used to dealing with all kinds of sicknesses and gore, some things simply fall outside the norm. Expecting emergency room nurses or doctors to be well-versed in caring for highly unusual maladies, such as heavy radiation exposure, exotic poisons and toxins, or pandemic-level diseases previously confined to other continents is unreasonable, if not impossible. Thus, it was not surprising to see the head of the nation’s largest nurses’ union blast the Centers for Disease Control for appearing to blame the now-infected nurse’s own breach of safety protocol for her exposure to the Ebola virus.

Is Internal Loss Prevention Stealing Workers’ Wages?

October 9, 2014 | Parks, Chesin & Walbert

In Johnny Cash’s One Piece at a Time, the singer tells the story of an assembly line worker who longs for one of the cars he spends his days building. Instead of pinching pennies, he devises a plan to acquire that car little by little. With an over-sized lunchbox and some help from friends, the worker smuggles home pieces every day over the course of a couple of decades. By retirement, he ends up with a Frankenstein of an automobile whose many components required the entire courthouse staff to register and results in a title weighing sixty pounds.

The dream of a “psycho-billy Cadillac” may be a little far-fetched, but internal theft by employees remains a real concern for companies, particularly retail stores and other business that sell or warehouse popular, pricey, or scarce consumer products. To combat the threat, many businesses subject employees and their belongings to screenings for stolen items at the end of their shifts. In environments like large department stores, where shifts are staggered and the searches might take only a minute or two, the delay may be inconvenient at times, but it would be tough to argue that it’s overly burdensome.

On the other hand, there are facilities doing these kinds of checks with dozens, if not hundreds, of workers whose shifts begin and end together. As anyone who’s been though a TSA line at an airport can understand, funneling that many people through checkpoints is not a quick endeavor. Instead of a two-minute delay, people at the back of the line might be waiting 20 minutes or more after their shift ends just to leave the building. Should they be compensated for that time?