Sacked by a Cell Phone: Tom Brady and the Peril of Destroying Evidence

By Stearns Weaver Miller on August 3, 2015 Posted in Employment Litigation

Why is the Tom Brady saga referred to as “Deflategate”? As many know, the penchant for adding the suffix “gate” to any scandal stems from the infamous 1972 break-in at the Democratic National Committee’s headquarters at the Watergate office complex and the Nixon Administration’s efforts to cover up its involvement. Ultimately, President Nixon’s attempt to conceal his involvement, which included hiding and destroying evidence, ended up being more damaging than the underlying misconduct of a bunch of petty burglars.

So, now comes the New England Patriots’ superstar Quarterback, Tom Brady. The Super Bowl Champion with the impeccable reputation. Caught in a scandal over improper air pressure in footballs, which, by the way, were used in a game his team was winning convincingly before the balls were deflated. The evidence of his complicity in the scandal appears circumstantial, at best. Yet, the NFL imposed a stiff 4 game suspension, without pay. His ego and his wallet both deflated, Mr. Brady appealed the punishment. But the NFL upheld its decision due, in part, to the revelation that Mr. Brady destroyed critical and potentially relevant evidence – his cell phone and the 10,000 text messages it contained. The NFL, irked by Mr. Brady’s lack of cooperation and destruction of evidence, seems confident a Court will agree that Mr. Brady’s conduct supports the discipline the NFL imposed.

Who Needs Congress When We Have The EEOC?

By Andrew Rodman on July 29, 2015 Posted in Discrimination & Harassment, Legislation & Regulations

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Legislative efforts have failed repeatedly at the federal level to add “sexual orientation” and “gender identity” to the list of protected classifications under anti-discrimination laws. That has not deterred the EEOC in its quest to protect the LGBT community from employment discrimination.

On the heels of the Supreme Court’s historic decision in Obergefell on June 26 legalizing same-sex marriage, the EEOC issued an opinion on July 15 interpreting Title VII’s reference to “sex” as encompassing “sexual orientation.”

In the case of Complainant v. Anthony Fox, Secretary, Department of Transportation (FAA), a supervisory air traffic controller at the Miami International Airport alleged that he was passed-over for promotion because of his sexual orientation. In support of his claim, the male employee, whose identity has not been disclosed, attributed to his supervisor remarks such as, “[you are a] distraction in the radar room,” and “we don’t need to hear about that gay stuff.”

The FLSA Makes Strange Bedfellows: Strippers, Interns, and Minor Leaguers

By Glenn Rissman on July 27, 2015 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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A stripper, an intern, and a minor league baseball player walk into a bar . . . Where is this joke going? To court of course; this is a family-friendly legal blog! What do all three have in common – lawsuits under the Fair Labor Standards Act.

A group of former minor league baseball players are suing Major League Baseball for failure to pay minimum wages and overtime in violation of the federal Fair Labor Standards Act and similar state laws. The case is in its preliminary stages and the parties are wrangling over procedural issues. The former players claim that Major League Baseball pays most minor league players $3,000 to $7,000 over a five-month season, during which the players regularly work fifty to seventy hours per week. The players allege that they play six or seven games per week, in addition to practice, strength and conditioning training, mandatory pregame activities and bus travel. The players also claim that Major League Baseball fails to pay them for mandatory spring training sessions and other off-season training and instructional sessions. With varying success, Major League Baseball has traditionally relied on a defense under the FLSA for amusement and recreational establishments. Baseball is hedging its bets and is lobbying Congress to amend the FLSA to create a specific exemption for baseball players.

D.C. Circuit Takes No Prisoners: Rebukes NLRB Decision Declaring “Common Sense Sometimes Matters”

By Stearns Weaver Miller on July 22, 2015 Posted in Employee Handbooks & Policies, Labor Law

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“Common sense sometimes matters in resolving legal disputes.” That’s how the D.C. Circuit began its opinion reversing a widely publicized 2011 decision by the NLRB finding that AT&T Connecticut had committed an unfair labor practice when it banned AT&T employees from wearing “Prisoner” shirts to the homes of customers.

If you attended our annual employment law seminar back in May, you may have heard us talk about the AT&T prisoner case and how surprising it was that the NLRB found AT&T unjustified in banning technicians from wearing t-shirts to the homes of customers that said “Inmate” on the front and “Prisoner of AT$T” on the back. The NLRB said there were no special circumstances justifying the Company’s ban because the t-shirts would not cause fear in customers since they could not be confused for actual prison garb.

Horrible Bosses: Makes for a Great Movie, but Not a Disability

By Stearns Weaver Miller on July 20, 2015 Posted in Disability & Leave, Legislation & Regulations

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In the movie Horrible Bosses, three friends conspire to murder their bosses when they realize they are standing in the way of their happiness. While most employees would not take it to that extreme (hopefully!), conflicts between employees and their superiors occur. Recently, in Higgins-Williams v. Sutter Medical Foundation, an employee went so far as to sue her employer, claiming that her inability to work for her boss was a “disability.”

A clinical assistant at a medical center in California alleged she began seeing her doctor because of stress due to interactions with human resources and her boss. Her doctor diagnosed her with “adjustment disorder with anxiety.” The employee requested leave from work. Her employer granted her a “stress-related” leave of absence. After the assistant returned to work, she claimed her boss was “curt and abrupt” with her (though friendly with others) and “grabbed her arm and yelled at her.” As a result, she suffered a panic attack and left work.

The employee then requested a transfer to a different department for “forever” and for additional leave as an accommodation for her “disability.” Leave was granted. After several months, the employer requested documentation regarding whether the employee was medically cleared to return. When the information was not provided, the employee was terminated. She sued for – among other things – disability discrimination.

DOL’s Proposal Will Require More “White Collar” Employees to Be Paid Overtime

By Stearns Weaver Miller on July 15, 2015 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

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The U.S. Department of Labor (“DOL”) recently proposed substantial changes to the salary amounts for the FLSA’s white collar exemptions. This is the first proposed change since 2004. The DOL took this action in response to a March 2014 directive from President Obama to “modernize and streamline” the regulations for these white collar exemptions. In his directive, the President stated that because the existing regulations are “outdated,” “millions of Americans lack the protections of overtime and even the right to minimum wage.”

The DOL’s proposed changes:

Increase the minimum salary amount for exempt executive, administrative, professional and computer employees from $455/week or $23,660 annually (current amount) to $921/week or $47,892 annually. This would more than double the minimum salary amount.
Increase the salary amount for “highly compensated employees” from $100,000 annually (current amount) to $122,148 annually.
Automatically increase both salary amounts on an annual basis. The DOL would provide at least 60 days notice of the annual increase amount. The amount of the increase would be determined by either using: (i) a fixed percentile of wage earnings for all full-time salaried workers, or (ii) changes in the Consumer Price Index for Urban Consumers (CPI-U).

Shhh. Be Vewy, Vewy Quiet: Elmer J. Fudd Takes on the NLRB

By Andrew Rodman on July 13, 2015 Posted in Employee & Management Counseling, Labor Law

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This past week, I read the NLRB’s recent Order in Banner Health Systems, and, strangely enough, Elmer J. Fudd came to mind. Yes, the Looney Tunes character – the archenemy of Bugs Bunny. As he attempted to hunt-down Bugs, Elmer Fudd would say, “Shhh. Be vewy, vewy, quiet. I’m hunting wabbits.”

For those of you who don’t remember Elmer J. Fudd, click here.

What’s the connection between Banner Health Systems and Elmer J. Fudd? In its seemingly never-ending attempt to disrupt business operations in the name of protecting employees’ Section 7 rights under the National Labor Relations Act, the NLRB told Banner Health Systems that it could no longer direct employees to “be vewy, vewy quiet” and maintain confidentiality during internal workplace investigations.

OMG! Your Policy Says What? Part 2

By Robert Turk on June 30, 2015 Posted in Labor Law

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Many employers and their attorneys believe the National Labor Relations Board (“NLRB”) has gone off the deep end. This school of thought was again reinforced with the NLRB’s June 18,2015 Remington Lodge Hospitality decision.

In a 2-to-1 decision, the NLRB held that the Sheraton Anchorage hotel committed an unfair labor practice by maintaining (and could no longer enforce) its employee handbook conflict of interest policy. The hotel had disciplined employees who were boycotting the hotel and then entered the hotel to present a petition. The hotel disciplined the nine employees for making threats and intimidating the hotel general manager when they handed him the boycott petition. One of the hotel policies cited as a reason for the discipline was the conflict of interest policy. The NLRB did not just rule that the discipline, based in part on the policy was unlawful – but that the conflict of interest policy itself was unlawful.

Supreme Court’s Same-Sex Marriage Ruling: Time to Update Your FMLA Policy (Again!)

By Lisa Berg on June 29, 2015 Posted in Employee Handbooks & Policies, Legislation & Regulations

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On June 26, 2015, the United States Supreme Court held in Obergefell v. Hodges, that the Fourteenth Amendment to the United States Constitution “requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” The Court’s decision also expands the application of many state and federal laws that grant rights to spouses, including the federal Family and Medical Leave Act (“FMLA”).

I know what you’re thinking . . . I just updated my policy to comply with the Department of Labor’s Final Rule regarding the definition of “spouse,” do I need to update it again? Answer: Yep.

OMG! Your Policy Says What?

By Andrew Rodman on June 22, 2015 Posted in Disability & Leave, Employee Handbooks & Policies, Hiring/Termination

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Title VII, through the Pregnancy Discrimination Act (PDA), has expressly prohibited pregnancy discrimination since 1978. Thirteen years later, the Supreme Court, in Johnson Controls, told us that even well-intentioned, but facially discriminatory, gender and pregnancy based employment policies — like Johnson Control’s policy of prohibiting fertile women from working on a battery line because of reproductive health risks — violate Title VII unless supported by a bona fide occupational qualification (BFOQ).

Apparently, at least one Texas employer never got the memo about the PDA or Johnson Controls.

I recently read an EEOC press release announcing that a federal judge in Texas awarded nearly $75,000 to Sharmira Johnson, a former employee of United Bible Fellowship Ministries (UBFM), in a lawsuit filed by the EEOC. The non-profit UBFM maintained a “no pregnancy in the workplace” policy. The policy actually prohibited the continued employment of pregnant employees in direct client-care positions, and it prohibited the hiring of pregnant applicants for such positions. In other words, if you’re pregnant, go home (or don’t bother applying).