$5.0 Million For Financial Media Employees
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Even with recent employment reports showing sluggish job growth, federal unemployment benefits are still slated to run out starting this month, as reported by the Washington Post this week. While most state unemployment benefits provide 26 weeks of unemployment compensation, Congress in response to the recession had also provided an additional 26 weeks of unemployment to workers on behalf of the federal government. From the beginning of the recession to now, Congress has reauthorized the Federal Unemployment Compensation and the Extended Benefits programs over ten times in order to ensure that most Americans have at least a full year of unemployment compensation available to them. While the last reauthorization of the federal benefits was in February, these federal benefits are slated to phase out starting July 1 and without further Congressional action will no longer be available to any worker by December 31 of this year.

What this means is that for workers still facing an unemployment rate of 8.2 percent, unchanged for months, they will no longer have an important security net for them and their families. As the New York Times reported today, the nation added just 80,000 jobs in June, doing little to address the continuing unemployment and underemployment of millions of American workers. And with little hope of an additional stimulus measure passing Congress before the end of the year, these numbers will probably remain unchanged.

The mechanics of the phase out of federal unemployment benefits is simple but devastating for workers. Starting July 1, any worker who loses their job will only be eligible for their state unemployment benefits and there will be no federal benefits available to them if they do not find a job by December 31. Those who do find a job before December 31 will then be eligible for unemployment benefits up to December 29 at a maximum. If Congress does not reauthorize the Federal Unemployment Compensation and Extended Benefits programs, all federal unemployment benefits for any workers at the end of this year will be completely phased out.

K-9 police officer dog workers have filed suit in federal court demanding overtime pay for their work spent at home training and taking care of the police canines. The case in question, Yuhouse & Wilson v. Borough of Wilikinsburg, brings a long-settled issue of overtime law again into the spotlight and demonstrates how many employers, including state and local governments, still do not take seriously some requirements of federal labor and employment law.

Yuhouse & Wilson v. Borough of Wilikinsburg was filed in federal district court by two police officers at the Wilikinsburg Borough police department who claimed they were not paid overtime by their department for the hours they spent at home cleaning, feeding, training and otherwise caring for their K-9 (canine) police dogs. The issue of paying police officers for the time spent caring for their canine dog workers is a settled issue in federal law, ever since the Supreme Court in their 1985 decision in Garcia v. San Antonio Metropolitan Transit Authority set out the requirement for local governments to pay overtime to their eligible public employees for such use of their time.

Under the Fair Labor Standards Act, all non-exempt employees are required to be paid time and a half for hours worked more than 40 in a week. In California, the requirement is even more stringent, with all hours worked over 8 in a day requiring overtime as well. For the police officers in Wilikinsburg, as with most overtime cases, the question is not whether they worked more than 40 hours in a week. It was clear from their records that they spent at least 40 hours a week at the job and the time spent with the canines at home added at least 30 minutes to their workday. Instead, the questions are whether the police officers are exempt employees and whether their training, feeding and caring for their canine dogs is properly “work” under the law.

The Grammy-Award winning singer Celine Dion has just been sued in federal court for refusing to pay overtime to workers at her $20 million Florida mansion, as reported yesterday by the New York Daily News. The suit Sturtevant v. Feeling Productions Inc. and Celine Dion, filed in the District Court of the Southern District of Florida, requests the singer and her record producer husband pay unpaid overtime wages, damages and attorneys’ costs. This suit makes Celine Dion the second high-profile celebrity to be charged with refusing to pay overtime to her workers this year, after Sharon Stone was hit by a similar suit in California last month.

The suit was filed by Keith Sturtevant, a warehouse manager for Celine Dion who also performed work duties at her Florida mansion from March 2009 to June of this year. In the complaint, Sturtevant claims that the singer categorized him as exempt from the overtime provisions of the Fair Labor Standards Act by giving him the title of “warehouse manager” although he was the sole employee at the singer’s warehouse and did not have the power to hire or fire workers. Sturtevant also claims that he spent much of his time working at the singer’s mansion performing such duties as fixing ice makers, cleaning the shutters of her house, building stages and repairing kitchen appliances. He also claims that he was sent on a number of unrelated errands as well. Sturtevant claims that considering the overall character of his work duties, he was only categorized as a “manager” so that Celine Dion could avoid paying him overtime. Sturtevant also claims that other workers for Celine Dion were also miscategorized as independent contractors even though most of their work was at the singer’s mansion and was under her control. He filed suit for himself and on behalf of all these other similarly situated workers for the unpaid overtime wages he claims were due.

This suit in federal court, beyond being an embarrassment for the singer is also evidence of the continuing relevance of the issues of overtime and the categorization of independent contractors in labor and employment law today. Many employers have been miscategorizing their workers as independent contractors or otherwise exempt from the overtime laws for years, but only recently has the issue come into the spotlight as workers around the country have felt the pinch during this economic recession. The Department of Labor and the IRS have responded by warning that they will take a more aggressive stance towards those employers who wrongly categorize their workers as independent contractors. Last September the Department of Labor and the IRS signed a memorandum of understanding agreeing to work together to identify and prosecute employers who wrongly categorize their workers as independent contractors. Since then 13 states have followed suit and agreed to cooperate with the Department of Labor to supply information to identify such employers. Employers who categorize their workers as exempt managers, executives or professionals will also be carefully scrutinized.

Personal trainer jobs have grown exponentially in the past few years, standing out as one of the few areas of growth during the economic recession. The Department of Labor has found that personal trainer jobs grew 44 percent between 2001 and 2011, while job growth overall dropped 1 percent during the same period, as reported today in the New York Times. But while hundreds of thousands of people are flocking to these jobs that have relatively low barriers to entry, they are discovering that there are many legal pitfalls to these otherwise appealing positions. Many of the legal issues that face workers in the personal trainer industry are very complex, and can expose many of these hopeful aspirants to massive personal liability.

Personal trainers must contend with a number of legal issues relating to their liability for client injuries. In the first case, personal trainers must realize that they may face massive liability for any injuries their client’s sustain during their sessions depending on their relevant state laws. In many states, personal trainers may be found negligent for any advice or training they provide to their clients that lead to their being injured. One recent case in Georgia, Guthrie v. Crouser, is a good example of the kinds of cases many personal trainers may face. In that case, a woman alleged that her personal trainer during a session pushed her to exert herself in exercises until after one session she suffered renal failure and had to be put on life support. In her complaint, the woman claimed that she had protested that the exercise routine was too hard, but her trainer pushed on, as reported by a local Atlanta television station. While the Georgia Court found that the plaintiff only suffered $80 in damages, it also awarded her costs, leaving the personal trainer defendant out of pocket for hundreds, if not thousands of dollars.

For California personal trainers, the issue of liability for client injuries is mitigated somewhat by a recent case on the issue. In 2006, a California Appeals Court ruled in Rostai v. Neste Enterprises et al. that personal trainers under California state law could not be liable for negligence for any injuries a client suffers from a too-strenuous workout. In the opinion, the court extended its earlier rulings on the issue of primary assumption of risk, finding that clients assume the risk for the ordinary injuries they may sustain during a workout. As a result personal trainers owe no duty of care to their clients in California. What this case means for California personal trainers is that they will not be held liable for their clients’ injuries sustained during a training session or workout unless they acted intentionally or recklessly in bringing about the injury. In Rostai, the court had been confronted with the case of a man who hired a personal trainer for his workouts at a local Gold’s Gym. The man subsequently sustained a heart attack during his first workout, which he claimed was due to his personal trainer’s negligence in failing to investigate his risk factors before the workout and pushing him too hard even after he complained of loss of breath and exhaustion. The California court applying its new test found that because the personal trainer did not intentionally attempt to injure the man and did not act recklessly in his actions, then he could not be liable for the man’s injuries and granted summary judgment for the personal trainer and gym.

Many deployed reserve soldiers find themselves shut out of their former jobs upon their return from war as reported by MSNBC this week. As more and more veterans find themselves unemployed at higher rates than the general population, currently pending House Bill 3860 proposed by Representative John Garamandi from California’s 10th District, attempts to remedy the situation by closing loopholes that have allowed employers to refuse to rehire reserve soldiers when they return. This Bill will ensure that employers do not circumvent the requirements of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Even with the protections of USERRA, veterans have found themselves hardest hit during these difficult economic times, posting a 12.7 percent unemployment rate in May compared to the 8.2 percent unemployment of the general population. Returning from war in Iraq or Afghanistan, many veterans find their jobs gone or replaced by overseas workers. This is despite the fact that since the passage of USERRA in 1994, it has been illegal for employers to refuse to rehire deployed National Guard or Reserve veterans upon their return. The House Bill addresses the loophole that many employers have used to avoid their obligations under the law. If House Bill 3860 is signed into law, employers with over 500 workers can no longer claim the “undue hardship” exemption to avoid rehiring returning veterans into their former jobs. This will ensure that employers recognize their obligations to serve and protect those who serve and protect them.

While many employee rights activists are enthusiastic about the proposal of the Bill, not all veterans are in support. The American Legion, which represents 2.4 million veterans, is in full support of the House Bill and has participated in lobbying efforts. The Veterans of Foreign Wars (VFW), however, at 2.1 million has been wary of the effect the bill may have on the initial hiring of Reserve and National Guard members. The VFW has warned that if House Bill 3860 is passed, employers will avoid hiring National Guard and Reserve members in the first place, fearful of their liability if they are deployed and return.

The Air Force is currently considering completely segregating new recruit training by gender in response to recent sexual harassment scandals, as reported today by the Christian Science Monitor. Following allegations of sexual misconduct by male recruit training supervisors who had sexual relationships with and in some cases raped female recruits, the Air Force is considering allowing only female supervisors train new female recruits. If the Air Force ultimately takes this step, it will be an unprecedented move for a military branch that has struggled to integrate women into its ranks.

Air Force General Edward Rice presented this recommendation to the Pentagon this week, as the military is still reeling from the sex scandal. Since June 2011, almost a dozen women in the Air Force have come forward claiming that their basic recruit training supervisors had sex with them, and in one case, raped them. After investigations and a pending trial that has so far procured a number of confessions by the supervisors, the Air Force has begun reevaluating its basic training model in order to avoid similar scandals. In response to the revelations, the Air Force also undertook a survey of women in the Air Force that found that one in five had been sexually assaulted, and of those just one in five reported their assault.

This sexual scandal in the Air Force, though unique because of the openness with which the branch has approached the issue, is still not surprising for the thousands of women across the country who have faced similar situations in non-military environments. The recent Kleiner Perkins Silicon Valley sexual harassment suit demonstrates that it doesn’t matter the industry, women in male-dominated environments often face open discrimination and unlawful sexual harassment every day. For many women, like the women in the Air Force survey, fears of retaliation or hindering their career advancement silences them from sharing their stories of harassment and abuse or filing suit.

A class action suit against Walgreens was just filed by California employees alleging that the company forced them to work off-the-clock without paying them their wages and overtime due. This suit, Hodach et al. v. Walgreen Co., exposes Walgreens to up to tens of millions of dollars in liability for not paying wages and overtime for off-the-clock work for its tens of thousands of workers in its 270 California stores. The case, which has employees alleging that Walgreens forced its workers to have their bags checked at the end of their shifts after they had already punched out, is almost identical to the January 2012 class-action suit against California Forever 21 stores and demonstrates that this issue is an increasingly important one for employees across the state.

Hodach et al. v. Walgreen Co. was filed last month in Sacramento Superior Court and the complaint alleges a number of violations by Walgreens of California labor and business laws. The suit was filed on behalf of all of Walgreens’ hourly workers across the state, although it is not clear if the court will allow class action certification of such a large number of potential plaintiffs. The plaintiffs allege that Walgreens required its employees to undergo security bag checks at the end of each shift, undertaken in order to deter theft of merchandise by the workers. The workers allege that these bag checks took place after they had already punched out, adding 10 and more minutes to their shift that was not paid. The plaintiffs allege that all workers at all Walgreen’s stores across the state were subjected to the same kinds of end-of-shift bag checks and were all similarly wronged by not being paid for the time they spent waiting and having their belongings inspected. Additionally, as most workers had their bags inspected after a full 8 hour shift or had a 40 hour weekly work schedule, the additional time they spent having their bags checked also needed to be paid at the overtime rate of time and a half.

This suit by Walgreens plaintiffs is the second major class-action suit in California this year alleging that workers were not paid for time their belongings were being inspected, as reported by the Los Angeles Times. In January, employees at a Forever 21 store in San Francisco brought a similar class action complaint against the company on behalf of all its thousands of employees across the state who were not paid for the time spent having their bags checked after they had already clocked out. These employees also allege that their bags had to be checked before meal breaks, which added an additional 10 minutes to their shift and also violated California’s laws regarding meal and rest breaks.

A bill that would make farmworkers in California eligible for overtime pay is in front of the State Senate Labor and Industrial Relations Committee tomorrow, as reported by the Sacramento Bee. Advocates for the bill have been lobbying for years for the legislature to consider it, and are hopeful that Governor Jerry Brown, who signed the landmark Agricultural Labor Relations Act in 1975, will soon have a chance to pass it into law. The bill will make California the first state to recognize farmworkers as equally protected under the overtime laws as all other hourly workers, and if it passes it will be a victory for employee rights activists across the nation.

Assembly Bill 1313, introduced last fall by Assemblyman Michael Allen D-Santa Rosa, would require California employers to pay overtime to their farmworker employees at time and a half for any hours worked over 8 hours a day or 40 hours a week. The federal Fair Labor Standards Act already requires overtime pay for hourly workers for any hours over 40 in a week, and California law additionally requires overtime for any hours worked over 8 hours a day. Farmworkers, however, have been excluded from both protections from the start, and were even exempted from the protections for union organizing under the National Labor Relations Act. This was due mainly to political reasons: for the FLSA and NLRA to pass, Congress had to acquiesce to Southern politicians’ demands that the millions of mostly minority domestic and agricultural workers be exempted from the labor protections of both Acts, including the minimum wage and overtime provisions. The California labor law had a similar history, with the politically marginalized mostly minority agricultural and domestic workers mostly excluded from the state law protections as well.

It wasn’t until 1975 when Governor Jerry Brown during his first governorship of California passed the Agricultural Labor Relations Act that farmworkers were afforded any labor law protections in the state at all. That statute created a mechanism for farmworkers to organize unions and afforded them similar state law protections as those under the NLRA for their activities. Governor Brown also passed a statute requiring overtime pay for farmworkers for any hours worked over 10 hours a day or 60 hours a week. Although much less protective than that for most non-exempt workers overall, it still put California in the forefront in the nation in protecting its agricultural workers.

A federal district court ruled this month that mortgage loan officers are entitled to overtime pay under a 2010 Obama Administration regulation, as reported by Reuters. The case, Mortgage Bankers Association v. Hilda Solis, et al., decided in DC District Court, reinstates mortgage lenders to their pre-Bush administration status as non-exempt under the Fair Labor Standards Act and its overtime and minimum wage provisions. A victory for employee rights advocates everywhere, the case sends a message to all employers that the Department of Labor and courts will look carefully at the actual functions of employees in determining whether they are exempt under the Fair Labor Standards Act or not.

This case was brought by the Mortgage Bankers Association, a trade association that represents the real estate finance industry. The association brought the suit to challenge a 2010 Department of Labor administrative opinion letter which reclassified mortgage loan officers as non-exempt non-administrative employees under the Fair Labor Standards Act. Under the FLSA, employees that are classified as bona fide executive, administrative, or professional employees, or who work in the capacity of outside salesmen, need not be paid overtime at time and a half for their hours worked over 40 hours a week. Before 2004, mortgage loan officers had been presumed to be non-exempt under these provisions, as much of their work involves inside sales and does not rise to the level of managerial or administrative work. As such, for decades the industry had classified mortgage loan officers as non-exempt and paid such workers overtime when required. In 2004, the Bush Administration changed course and the Department of Labor issued an opinion letter reclassifying mortgage loan officers as exempt administrative employees. For six years thereafter, mortgage loan officers were no longer eligible for overtime under the FLSA. In 2010, the Obama Administration issued an opinion letter from the Department of Labor again classifying mortgage loan officers as non-exempt non-administrative employees under the FLSA. The Mortgage Bankers Association, which had taken advantage of not having to pay overtime for almost six years, immediately filed suit claiming the Obama administration had acted outside its authority in reclassifying the workers.

The DC district court found that the Mortgage Bankers Association’s suit had no merit, as the Obama administration was well within its rights to reclassify the workers, and its reclassification was not unreasonable. First, the court found that the new regulation did not err in considering mortgage loan officers to be primarily engaged in inside sales, which would exclude it from the administrative exemption. The court found it revealing that mortgage loan officers were mainly paid by commission based on the number of mortgages sold, and their primary duty was to undertake such sales. The court also found that mortgage loan officers did not perform duties in furtherance of the general business of the company, which would have allowed them to fall under the administrative exception. Instead, most mortgage loan officers’ work is dedicated not to the production work of the company, but to the sales aspect. Both of these issues led the court to find that mortgage loan officers were non-exempt under the Fair Labor Standards Act and as such eligible for overtime pay,

In one of the most controversial decisions in sex discrimination law this year, the Maine Human Rights Commission has found that taking work outings at a strip club is not illegal sex discrimination. This case concerns medical residents at Maine Medical Center, one of the largest hospitals in New England, who were pressured by their supervisors to join them at a strip club at the end of a regional medical conference. One of the hospital administrators complained about the practice, which occurred yearly and had become somewhat a tradition for the Center. He alleges that after he complained about the practice, which he feared was illegal sex discrimination, he was demoted and retaliated against in other ways.

The Maine Human Rights Commission decided this week that the hospital administrator’s suit was without merit as he had not been illegally retaliated against. The Commission went further as well, in finding that the Medical Center’s tradition of pressuring male residents to attend a strip club at the end of the yearly conference was not a problem. This was even after the administrator gave evidence that female residents were excluded from the trips, and for the male residents attending was “almost a requirement.”

The Commission’s decision that the work trips to the strip club was not illegal sex discrimination flies in the face of dozens of decisions across the country finding otherwise. For example, in 2004, Morgan Stanley paid $54 million to settle a suit by its female employees who claimed they were excluded from client meetings that took place at strip clubs. The New York Stock Exchange in 2006 issued policies discouraging outings at sexually explicit venues that could isolate or create a hostile environment for certain employees.

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