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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.

A federal court has just held that putting on work clothes and walking from the locker room to the workstation is not compensable time under the overtime and other provisions of the Fair Labor Standards Act. The Seventh Circuit, in an opinion last month by Judge Richard Posner, found that the Portal-to-Portal Act, which amended the Fair Labor Standards Act, did not require companies to compensate workers for the time they spent putting on and removing required protective work gear and walking to and from their lockers and workstations. This ruling in Sandifer v. U.S. Steel Corp. contradicts a 2010 decision by the Sixth Circuit that held that both activities were compensable under the law. As overtime pay issues continue to heat up the courts after the Supreme Court’s decision this week in ‪Christopher v. SmithKline Beecham Corp.‬, the Seventh Circuit’s ruling creates an inter-circuit split on an overtime pay issue ripe for another Supreme Court decision.

Sandifer v. U.S. Steel Corp. concerned workers at an 800-employee United States Steel plant in Gary, Indiana, who complained about not being compensated for their time putting on and taking off required work clothes and walking from the locker room to their work stations and back. This time went beyond their 40 hours per week work schedule, and as such also involved an issue of unpaid overtime. The plaintiffs argued that under the Fair Labor Standards Act, as amended by the 1947 Portal-to-Portal Act, this time was not excluded as non-compensable time spent putting on “clothes.” Under § 203(o) of the Fair Labor Standards Act, time spent putting on clothes and washing before and after a shift is excluded as compensable time under the overtime and minimum wage provisions if it is part of custom for such time to be excluded or is excluded by the collective bargaining agreement. The question in this case was whether the work clothes plaintiffs were required to wear were properly “clothes” under §203(o). As the Fair Labor Standards Act does not define what “clothes” are under the provision, the Seventh Circuit here undertook an analysis of the work clothes plaintiffs had to wear to determine whether they were properly “clothes.”

In determining whether plaintiffs’ required work clothes were properly “clothes” under §203(o), the court included a photograph of what plaintiffs were required to wear. Plaintiffs were required to put on flame retardant pants and jackets, work gloves, steel boots, earplugs, a hood, safety glasses and a hard hat at work every day. The court found that while the safety glasses, earplugs and hardhat were not “clothes” under §203(o), as the time spent putting them on was de minimis they were not an issue in this case. The court then turned to consider whether the other required clothing were “clothes” under §203(o) and rejected the plaintiffs’ arguments that because they were used to protect plaintiffs from workplace hazards that they were not. The court found that assuming that any clothes that protected the wearer were not “clothes” under §203(o) and instead protective work gear would be too narrow a view of the statute, as almost all clothes except waiter or bellboy uniforms would be excluded. The court found instead that the clothes that the steel workers were required to wear were more clothes than protective gear, and as such were covered by §203(o) of the Fair Labor Standards Act.

The Equal Employment Opportunity Commission (EEOC) is becoming more aggressive in pursuing employers that have blanket bans excluding those with criminal records from jobs, as reported in the New York Times today. Many employers are not ready for this aggressive enforcement of EEOC policy, as the New York Times found, and are not educated on what actions can put them into hot water.

The EEOC issued a guidance in late April clarifying what actions it would consider to be unlawful discrimination against those with criminal records. While no federal law directly prohibits discrimination against people with a criminal record, employers may still be liable if their discrimination runs into one of the prohibitions against race, sex, or national origin discrimination. The way this can happen is if employers in discriminating against those with criminal records also discriminate against those within these protected classes. The main example for this case is race. The EEOC in its guidance clarified how employers by discriminating against those with criminal records may be found liable for race discrimination under Title VII of the Civil Rights Act of 1964.

The EEOC will pursue actions against employers who exclude all those with criminal records based on two theories of antidiscrimination law, disparate treatment and disparate impact. Under disparate treatment, an employer may be found liable for discriminating against those with criminal records if they use that as a cover up to discriminate based on race. One way this can occur is if an employer has a blanket ban on hiring those with any criminal record but only applies that ban when the prospective employee is Hispanic, for example. This example is mostly uncontroversial, and few employers seem confused that this action would be discrimination.

Kleiner Perkins Caufield & Byers, the Silicon Valley venture capital firm, has just formally responded to the sex discrimination suit filed by one of its female partners, as reported by the New York Times. In the response, the firm denied all the female partner’s allegations of sex discrimination, harassment and retaliation, claiming she had “twisted facts” in her favor and misinterpreted many of the actions by colleagues that she claims were harassment. The response filed in San Francisco Superior Court provides evidence that the firm will aggressively fight the charges by Ellen Pao who is still working at the firm. It seems, however, from the response that the firm may not succeed in its heavy-handed attempt to paint Pao as overly sensitive to workplace dynamics and not a real victim of sexual discrimination, harassment and retaliation.

The response by Kleiner Perkins denies some of Pao’s claims while reinterpreting others, making this case mostly a matter of interpretation. The venture capital firm, which has one of the strongest track records in Silicon Valley in hiring female partners and directors, immediately highlighted this fact in its response to Pao. Kleiner Perkins claims that Pao never complained to the firm about the alleged discrimination and harassment she faced during the five years in question, and only did so in 2011 when she had already retained counsel. Once she did complain in 2011, however, the firm states that they immediately investigated the claim, including interviewing all female partners at the firm before finding her claim to be meritless.

The firm also denied Pao’s claims that when she complained about the sexual harassment she faced from one of her senior colleagues, one partner encouraged her to marry her harasser. The firm claims instead that partners she shared her complaints with gave her sound advice and she was in fact grateful to them. The fact that this seems to immediately contradict the firm’s claims that she never formally complained about the harassment and discrimination she faced is, again, a matter of interpretation.

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