California Considering Ban on Employer Forced Arbitration

Last year, a bipartisan coalition in the United States Senate sponsored legislation to ban the use of mandatory arbitration agreements with regard to claims of sexual harassment and sex discrimination. The federal bill is still pending. 

Now, a similar bill has been filed in the California legislature. If it passes, the California bill would prohibit employers from requiring mandatory arbitration agreements as a condition of employment. And unlike the federal bill mentioned above, the California bill would prohibit arbitration clauses as a condition of employment as to all types of employment claims—not just sexual harassment and sex discrimination claims.

If passed, the California law would be an important start to a movement to get rid of employer-based, forced arbitration. Statistics show that arbitration is unfair to employees and is used by some employers to effectively opt out of the judicial system into a rigged, pseudo-court where wrongdoing can be effectively covered up by companies. 

And claims that arbitrating claims is more cost-effective than traditional adjudication in court are are not supported by the available statistical data. Many employment corporate defense lawyers point out that research shows arbitration is neither faster nor less expensive than litigation. 

There has long been data showing that a solid majority of Americans oppose forced arbitration in the employment context.  If this bill passes and becomes law in California, perhaps it will be the beginning of a nation-wide movement to allow employees back into the courtroom. 

Read More: National Law Review

The Rise of Digital Wage Theft

The days of punching a manual time-clock when you arrive at work are all but over. Digital time tracking systems now use things like facial recognition to monitor when a worker arrives and has finished for the day. However, the software that’s replaced the 19th century time-clock technology is helping some employers steal workers’ hourly pay.

This so-called wage theft is a problem for many healthcare workers, drivers, and food-service and factory employees, according to a study by Elizabeth Tippett, associate professor at the University of Oregon School of Law, published in the American Business Law Journal. An earlier report from the Economic Policy Institute found that wage theft in the US may account for more than $15 billion each year.

How digital wage theft works

Tippett’s study of 330 cases litigated in state and federal courts found three main types of digital wage theft:

• Rounding, which happens when the software is set to alter an employee’s starting and finishing times to pre-defined increments

• Automatic break deductions, which deduct preset time increments (for lunch or other breaks) from pay, regardless of whether the break was taken

• Time shaving, which takes place when managers alter time records to pare down the number of hours worked

Read more about this study in this article by John Detrixhe. 

Supreme Court Denies Overtime Pay to Service Advisors at Auto Shops & Dealerships

This week in Encino Motorcars, LLC v. Navarro, the Supreme Court limited overtime pay for service advisors at car dealerships nationwide, ruling that those employees are primarily salespeople who sell brake jobs, oil changes and other service work. Encino Motorcars' current and former service advisors sought backpay under the Fair Labor Standards Act (FLSA) overtime-pay requirement, 29 U.S.C. 213(b)(10)(A). The requirement exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.”

The Supreme Court, in an 5-4 opinion authored by Justice Thomas, reinstated the dismissal of the suit. According to the Court, service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles." The ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles,” Service advisors are also “primarily engaged in . . . servicing automobiles.” “Servicing” can mean either “the action of maintaining or repairing” or “[t]he action of providing a service.” Service advisors satisfy both definitions. They meet customers; listen to their concerns; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as services are performed; and explain the work when customers return for their vehicles. While service advisors do not spend most of their time physically repairing automobiles, neither do partsmen, who are “primarily engaged in . . . servicing automobiles.”

The Court rejected giving Chevron deference to the federal agency and rejected the interpretation of the Department of Labor and the Ninth Circuit Court of Appeals, who had both relied on matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”. The but the word “or” is “almost always disjunctive.” Using “or” to join “selling” and “servicing” suggests that the exemption covers a salesman primarily engaged in either activity. The Court held that the FLSA gives no textual indication that its exemptions should be construed narrowly, thus ignoring the long-standing precedent that remedial statutes should be interpreted in order to provide broad protections to the individuals they seek to protect. 

Writing in dissent, Justice Ruth Bader Ginsburg said the service advisors at Encino Motorcars "work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. Their weekly minimum is 55 hours." Federal law calls for a time-and-a-half pay after 40 hours in a week, she noted. "Because service advisers neither sell nor repair automobiles, they should remain outside the exemption and within the act's coverage," she said. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan agreed.

This is but one of many examples to come that will demonstrate the importance of elections on the Court. The election of Trump coupled with the Senate's highly questionable antics used to nab a seat for Justice Gorsuch has led to the elimination of overtime protections for thousands of workers across the country. Many will never see Justice Gorsuch as a legitimate member of the Court. However, his votes (expected to be 100% anti-worker) on the Court will be powerful all the same.

Read the Opinion

New Expert Report Offers Policy Recommendations for Non-compete Agreements

As this blog has discussed before, non-compete agreements are a real problem. A new report from the Brookings Institution’s Hamilton Project seeks does a deep dive on this nationwide problem, compiling the most comprehensive recent studies on non-compete agreements. The report’s author, Matt Marx, has several key policy recommendations for lawmakers who want to promote economic growth rather than stifle it:

• Employers should inform employees if they will be required to sign a non-compete agreement before they accept the job. Employers routinely hide the fact that employees are required to agree to a non-compete until after an employee has accepted a position and presumably turned down other offers. (This takes away employees' negotiating power and hurts the economy.)

• If existing employees are asked to sign new non-compete agreement, employers should be required to compensate them. (In Texas, employers often require long-time employees to sign new non-compete agreements with the promise of nothing more than continued at-will employment.)

• Allow judges to rewrite overreaching non-compete agreements so that they are in-line with state law. (In Texas, judges already have this power. The problem is that in order to get the issue to a judge, a lawsuit needs to be filed by either the employer or employee, taking time and costing legal fees.)

• Give attorneys general the power to go after firms that require workers to sign predatory non-competes. (This could be helpful in some states. Unfortunately in Texas our current Attorney General would have no interest in helping Texas workers in this way.)

• Bolster non-disclosure agreements so that they make a better substitute for non-competes. (This sounds good but I'm not sure how much stronger they could be without creating a real imbalance of power in the workplace.)

You can read the entire report here.

Non-Compete agreements are not evil per se. In fact in some cases they make sense. But companies have gone way beyond using non-competes to protect legitimate trade secrets and now routinely abuse them in attempt to gain a competitive advantage over other businesses by keeping employees out of the labor pool. 

2nd Circuit Rules Title VII Protects Against Employment Discrimination Based on Sexual Orientation

In an en banc decision, The US Court of Appeals for the 2nd Circuit in New York ruled on Monday that Title VII of the Civil Rights Act of 1964, a federal law that bans employment discrimination because of sex, also protects claims of discrimination based on sexual orientation.

"Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted," a 10-3 opinion issued by the 2nd US Circuit Court of Appeals stated.

The court, based in New York, becomes the second appeals court to rule that the civil rights law covers discrimination based on sexual orientation. Last year, the 7th Circuit Court of Appeals issued a similar ruling. The ruling means that employees in those two circuits can use existing civil rights law to sue for discrimination based on sexual orientation. 

Eventually, this issue will likely work its way up to the U.S. Supreme Court.  

You can read the 2nd Circuit’s opinion here. 

Buc-ee’s Loses Texas Retention Agreement Case

A year after a trial court ordered that a former employee pay Buc-ee’s close to $100,000 in alleged damages and attorneys fees for breaching an employee “Retention Agreement”, a Texas court of appeals reversed that decision, ordering that Buc-ee’s take nothing on its claims against its former employee and also ordered that it pay for her legal fees as well. (Read my previous coverage of this case here.)

The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement".  

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit.

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00. The trial court found against Rieves and awarded the company nearly $100,000.00 in damages and attorney’s fees.

Last week the court of appeals took that verdict back, ordering that Buc-ee’s take nothing on its claims against Rieves and that it pay for her legal fees as well. The court reasoned that the requirement that Rieves pay back such a large sum of money should she leave the company acted as a restraint of free trade and violated Texas’ employment-at-will doctrine. As a result, it could only be valid if it met the requirements of an actual noncompete agreement, which in Texas is controlled by statute. Because this agreement did not meet those requirements, it was not enforceable. 

Download a copy of the opinion.

 Buc-ee’s will now have to decide whether to appeal the matter further.

Click here to learn more about employment agreement cases from San Antonio employment attorney Chris McKinney.

$1.1 Million Verdict to Woman in Gender Identity Case

The Case

Rachel Tudor, a transgender professor whose tenure and promotion was denied at Southeastern Oklahoma State University, was awarded $1.1 million by a federal jury on Monday in a landmark Title VII case.

Tudor was hired by the university in 2004 as a tenure-track assistant professor in the English department and presented as male at the time. She began transitioning in 2007, becoming the university's first openly transgender professor.

According to the lawsuit, after notifying the university that she would be presenting as a woman at work for the 2007-2008 academic year, Tudor received a phone call from an unnamed human resources staffer who told her the school's vice president for academic affairs, Douglas McMillan, had inquired about firing her because her identity as a transgender woman offended his religious beliefs.

The lawsuit also states the director of the university's counseling center, Jane McMillan, Douglas McMillan's sister, told Tudor to take safety precautions, because some people were openly hostile to transgender people. She also reiterated to Tudor that her brother considered transgender people to be a "grave offense to his [religious] sensibilities."

In October 2009, Tudor applied for tenure and a promotion to an associate professor position. Her application was denied, while the application of a similarly qualified male coworker was approved, the lawsuit claims. After Tudor asked for an explanation as to why her application was rejected, according to the suit, Douglas McMillan and another dean refused to provide her with one. Tudor then filed a federal discrimination complaint in 2010.

In March 2015, the Justice Department, then under the Obama administration, sued the university, with former Attorney General Eric Holder declaring that federal prohibitions against sex discrimination include protections based on gender identity.

On Monday, an eight-person jury voted in favor of Tudor on three counts: that she was "denied tenure in 2009-10 because of her gender," that she was denied "the opportunity to apply for tenure in the 2010-11 cycle ... because of her gender" and that the university retaliated against her after she complained about workplace discrimination. The jury then awarded her $1.165 million in damages.

Why Is This Case Important

This case is important because it is one of the first times that a federal court has explicitly found that a plaintiff whose gender identity is transgender is a protected class under federal anti-discrimination laws. In the past, many courts have held that gender identities are not protected in and of themselves. Plaintiffs could only seek protection of federal anti-discrimination laws by arguing they were covered under traditional sexual discrimination statutes because they were mistreated due to application of a sexual stereotype. This argument has worked with varying degrees of success across the country but it is more convoluted and difficult to apply than it should be. 

The issue will certainly have to be decided by the US Supreme Court eventually but this court decision is a good start.

Person of the Year 2017: #MeToo

Time Person of the Year 2017: The Silence Breakers
Discussions of sexual harassment in polite company tend to rely on euphemisms: harassment becomes "inappropriate behavior," assault becomes "misconduct," rape becomes "abuse." We're accustomed to hearing those softened words, which downplay the pain of the experience. 

It wasn't so long ago that the boss chasing his secretary around the desk was a comic trope, a staple from vaudeville to prime-time sitcoms. There wasn't even a name for sexual harassment until just over 40 years ago; the term was coined in 1975 by a group of women at Cornell University after an employee there, Carmita Wood, filed for unemployment benefits after she had resigned because a supervisor touched her. The university denied her claim, arguing that she left the job for "personal reasons."

In 1980 the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing civil rights laws in the workplace, issued guidelines declaring sexual harassment a violation of Title VII of the Civil Rights Act. It was a victory, but with caveats: even after sexual harassment became explicitly illegal, it remained difficult to lodge a complaint that stuck—in part because acts of harassment are often difficult to define. What separates an illegal act of sexual harassment from a merely annoying interaction between a boss and his subordinate? When does a boss stop just being a jerk and become a criminal? Because the Civil Rights Act offered no solid legal definition, interpretation has evolved slowly, shaped by judges and the EEOC over the past 37 years.

And then...2017 and #MeToo happened. Read Time Magazine's Cover Article Here

#MeToo - Reporting Sexual Harassment In Today's Workplace

While headlines focus on famous men who lead prominent organizations, the majority of sexual harassment happens in ordinary office buildings by ordinary managers or workers who are insecure about their status in life, feel a need to rattle or dominate others to make themselves feel better, or see their colleague as a potential sexual gratifier. They don't love their victims. In fact, they may want to hurt them through embarrassment, discomfort and humiliation.

Most harassers are men, although women also have been reported. The targets are usually women. However, men filed approximately 17 percent of the sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) in 2016. 

Most employees try to ignore the behavior, at least at first, waiting to see if it will go away. Some clearly ask the harasser to stop. Others try to play along or laugh it off, unwittingly sending mixed signals of encouragement to the harasser.

The correct response, of course, is to report harassing behavior to a supervisor or human resources. A responsible employer will listen to the description of the events and then speak to the instigator. However, reporting sexual harassment is a difficult thing to do. Employees who are being harassed at work often feel alone and powerless. Will the report do any good? Will HR stand up for me? Will I be retaliated against? Will I lose my job?  

We have put together an article discussing some important tips to consider when you need to oppose or report sexual harassment in the workplace. If you or someone you know is facing this issue, the information in this article could help.

Weinstein Case Highlights Difficulty Employees Face When Reporting Workplace Harassment Claims

NPR had an excellent story yesterday about the problems that employees face in the workplace when they report sexual harassment:

"Former Hollywood mogul Harvey Weinstein's ouster from the Academy of Motion Pictures Arts and Sciences following numerous allegations of sexual misconduct have prompted others on social media to open up about workplace harassment complaints that have gone unheeded.

Most employers in most industries have written policies on and procedures for reporting incidents of sexual harassment, and human resources officials are required to investigate those claims.

And while recent decades have seen a cultural shift and more education to help minimize sexual harassment, HR consultant Sharon Sellers says there is still a big gap between what should happen, and what actually does. One concern is that many people don't feel safe reporting claims.

"The employer should take every complaint seriously, and this is one area I see where it falls down," Sellers says."

Most employees don't want a lawsuit; they just want to be allowed to do their job without being sexually harassed. Companies do their employees (and their bottom line) a disservice by not building a strong HR department that has the resources and independence within the company to investigate harassment claims and, when necessary, speak truth to power within the company.

Read the rest of NPR's article here.

"Service Fees" Can Confuse Matters for Tipped Employees

Tipped Employees

While most restaurants leave it up to their customers to decide how much to tip their servers, and increasing trend among some restaurants is to include a mandatory gratuity or “service fee” on their bills. Sometimes this is done only for groups of six or more patrons. Other times it is included as an extra charge when customers purchase a banquet package or other private dining option.

Mandatory gratuities or services fees are legal only under certain circumstances and only if handled properly by the employer. In some states, such fees are only legal if the money is used for the sole purpose of paying the server. Under the FLSA, service charges must be counted as income on the books of the restaurant, and then they may be used to pay servers or for other purposes. In no event, however, may servers be paid less than the minimum wage.

Other common issues tipped restaurant workers face include:

• Requiring servers and bartenders to contribute a percentage of tips to a tip pool, but using the tips to pay employees who are not customarily tipped, such as custodial, management, or kitchen workers.

• Denying overtime pay to employees who worked at more than one restaurant owned or controlled by the same company, even when their combined hours totaled more than 40 hours in one workweek.

• Having employees work off-the-clock, earning only tips for their labor. Even if tipped employees receive most of their pay through tipping, the employer still must pay them at least $2.13/hour in cash wages on top of whatever tips they may earn.

If you have a question about how a tipped employee should be paid or if you think your employer is violating the FLSA, visit my main website to learn more.

Halliburton pays nearly $18.3 million in overtime owed to more than 1,000 employees nationwide after US Labor Department investigation

Employee Rights Under the FLSA

In one of the largest recoveries of overtime wages in recent years for the U.S. Department of Labor, oil and gas service provider, Halliburton, has agreed to pay $18,293,557 to 1,016 employees nationwide. The department's Wage and Hour Division investigated Halliburton as part of an ongoing, multi-year compliance initiative in the oil and gas industry in the Southwest and Northeast.

Investigators found Halliburton incorrectly categorized employees in 28 job positions as exempt from overtime. The company did not pay overtime to these salaried employees — working as field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists — when they worked more than 40 hours in a workweek, in violation of the Fair Labor Standards Act. The company also failed to keep accurate records of hours worked by these employees.

Simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime. The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.

The FLSA requires that covered, non-exempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must maintain accurate time and payroll records.

Supreme Court Rules 6-2 Against Tyson -- Workers Win Millions in Back Pay

Supreme Court Rules For Workers in Pay Dispute

In a victory for American workers, the Supreme Court last week upheld a $5.8 million judgment against Tyson Foods in a pay dispute with more than 3,000 workers at a pork-processing plant in Iowa. You can read the opinion in Tyson Foods v. Bouaphakeo here.

The justices voted 6-2 on to reject new limits Tyson asked them to impose on the ability of workers to band together to challenge pay and workplace issues. The case revolved around the question of whether the workers could bring a class action case. Tyson argued that since each employee spent a different amount of time putting an gear and removing it, they shouldn't be able to sue as a group using "representative evidence" to prove up their case. The court rejected that argument.

“In many cases,” according to the Court majority opinion, “a representative sample is ‘the only practicable means to collect and present relevant data'” to prove that the company being sued was legally at fault.   The opinion went on to provide some guidance to when such evidence would be allowed in such cases.

In this case, the Court was more content to allow such evidence because Tyson Foods had not obeyed its legal duty to keep records on how much each worker had worked as overtime.  Without such records, the employees had to marshal other evidence, and the sample was the best proof available to them.

The case is notable because it represents at least a small opening in the legal wall against group actions that the Supreme Court has been steadily building over the last several years.

Read more:

• The class action is dead … long live the class action! #SCOTUS upholds “representative samples” for class certification

• Tyson Foods workers win $3 million in back pay

• Award Against Tyson Foods in Iowa Pay Dispute Upheld - ScotusBlog

Uber Drivers File FLSA Class Action in New York

FLSA Wage Action Against Uber

On June 2nd, the New York Taxi Workers Alliance filed a class action complaint on behalf roughly 5,000 New York City Uber drivers against Uber Technologies and its related entities.  The complaint alleges that Uber’s drivers are misclassified as independent contractors and that Uber’s compensation scheme falls far below statutory minimum wage and overtime requirements.

According to the complaint, Uber exercises sufficient control over their “independent contractors,” to qualify them as employees:

From fares and fees, to what to wear and what route to take, in addition to subjecting its employees to constant monitoring by GPS, Uber directs and sets the terms and conditions of their Drivers’ work. Although Uber’s rules are often described as “suggestions,” Drivers understand clearly that failure to follow these guidelines results in temporary or permanent termination of their employment with Uber. After working for Uber continuously for years, laboring for twelve-hour-plus shifts, for six or seven days a week, these workers simply cannot be considered independent contractors performing a “gig.”

The complaint contains claims for minimum wages and overtime under the FLSA, recovery of equipment costs, unlawful deductions, breach of contract, and promissory estoppel.

You can read a copy of the filed Complaint here.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

• McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.

• Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.

• The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.

• McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.

• An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.

• At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”

• McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

• McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.

• McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

If you want to read more, start here.

Court Rules Company's Website Violates Americans with Disabilities Act

In what is the first lawsuit of this kind that I have heard of to go to trial, a Florida federal court has ruled in favor of a blind man who has filed nearly 70 lawsuits alleging that various companies’ websites violate the Americans with Disabilities Act.

On June 12, Judge Robert Scola, of the Southern District of Florida, decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the ADA. His decision will require the company to update its site.

Plaintiff Juan Carlos Gil won't receive damages but the company will have to rebuild its website to comply with the court's order. The company has set aside $250,000 to update the site, though testimony during the trial indicated it will not cost nearly that much. During the trial experts estimated it would cost less than $37,000 for the company to update its site

The court ordered the company to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA drafted by accessibility experts. Experts consider this to be the de facto standard for website accessibility.

Gil can’t see the screen of his computer but uses JAWS or other screen reader software that tells him the details of the site he is visiting. When he hits the tab and shift buttons, it tells him what he needs to type. He uses the Winn-Dixie site to buy groceries and prescription drugs. He wants to use the websites to find coupons and refill prescriptions. 

One of the main questions the court had to decide was whether the website is a “place of public accommodation” under the ADA. The court ruled that because the site is “heavily integrated” with Winn-Dixie’s stores, it is.

The Court wrote:

“Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”

This case indicates that companies which have a website that is a large portion of a customer's experience (think Amazon, Wal-Mart, etc.) will need to make sure their websites are accessible for those who are blind or risk a lawsuit similar to this one. 

Read more about this case. 

Backlash Against Remote Working as Companies Order Employees Back to the Office

An IBM-convened panel at SIOP 2017 explored the benefits and challenges of remote working. With perspectives from academia as well as public and private sectors, the consistent message was that teleworking works, and that associated challenges can be managed with careful planning and communication.

Apparently IBM doesn't believe its own research.

Last week thousands of IBM employees — roughly 40 percent of the total 380,000 workforce — were given an ultimatum. They must either relocate to a regional office or leave the company. This will be a substantial hardship for many of those employees because they may live hundreds of miles from the nearest regional office. 

IBM's move is part of a growing trend among larger tech companies that are rethinking telework. Within the last several years Best Buy and Yahoo both ended or severely restricted their telework programs.

The fact that Yahoo and IBM have made this move is pretty surprising to me. Most research on the subject indicates that teleworking, when handled correctly, works. In fact it works better than working in the office for many. The true enemy of deep, substantive work is often the office environment itself. Meetings, office chit chat, and all the distractions that find their way to your office or cubicle are the real enemies of work. 

Here is an interesting article from remote work proponent Jason Fried discussing why he thinks companies like Yahoo are making a mistake by eliminating remote work options. Put simply, if you hire quality people who are interested in doing meaningful work, then remote working is a great option. If remote working is not working in your organization, then it likely indicates a problem with the type of people you are hiring or in the structure of your organization itself. 

Perhaps these companies that are ending remote work programs are mistakenly addressing a symptom of a larger problem within their organizations.  

Jury awards $769,000 Against Washington University in Disability Discrimination Case

A St. Louis woman has won a $769,000 verdict against Washington University in a trial alleging the school refused to accommodate her disability and then fired her.

The plaintiff, age 55, worked as a researcher at the university's medical school from 1996 to 2012 and had herniated disks, according to her lawsuit. She claimed her back problems caused her extreme pain in certain positions "including but not limited to cell culture and bench work" and that the university and her supervisor discriminated against her by not accommodating her condition.

Her lawyer said the university in November 2012 fired her from her cancer research position, telling her the school had lost funding for her projects. Her lawsuit said her firing was in retaliation for her request that she not be required to sit and bend over for excessive periods of time.

After a five-day trial in St. Louis Circuit Court, the jury Friday awarded Lin $269,000 in actual damages and $500,000 in punitive damages.

It should be noted that St. Louis is seen by many as being one of the most plaintiff-friendly venues in the country so your mileage may vary. 

Read the story here.

$51 Million Dollar Verdict Awarded in Age Discrimination Case

A former Lockheed Martin engineer, who sued for age discrimination after being laid off at age 66, was awarded $51.6 million by a jury in a federal court in New Jersey. This may be the highest amount ever awarded to an individual in an age discrimination case, and stands as a stark reminder that age discrimination remains a big — and potentially very expensive — issue for HR.

Robert Braden was a mid-level manager who spent almost 29 years at a Lockheed Martin facility in Moorestown, NJ. He claims that he was a target in a reduction in force plan to replace older workers with younger ones, and that he and other older workers consistently received less pay and lower reviews and raises than younger workers.

In his lawsuit complaint, Braden said that he was the oldest of six engineers in Lockheed's Electronic Systems-Mission Systems and Sensors unit, that his title was project specialist, senior staff, and that he was the only one let go in that round of layoffs. He said that he was given no specific reason for his termination and that his job performance had been "excellent." He also said that supervisors and company executives regularly made remarks about older workers.

The $51.6 award breaks down like this:

• $50 million for punitive damages under the New Jersey Law Against Discrimination,

• $520,000 for economic loss,

• $520,000 for willful action against the Age Discrimination and Employment Act (ADEA) and

• another $520,000 for pain and suffering.

(Note that in Texas, the size of the this verdict would have been greatly reduced by the application of damages caps passed by the Texas legislature to protect companies who commit this type of wrongful conduct.)

Discrimination against older workers remains a significant problem

While the size of the Lockheed verdict is certainly surprising, workplace age discrimination, unfortunately, is not. A 2013 AARP study found that almost two in three workers ages 45 to 74 said they have experienced workplace age discrimination.

And with an aging US population and ongoing economic uncertainty, more people plan to or must stay in the workforce well past the age of 65. As a result, managers and supervisors should take steps to ensure all employees are vigilant and sensitive to behavior and practices that can be grounds for an age discrimination claim.

Don't Sign Away Your Right to Get a New Job

The growth of noncompete agreements is part of a broad shift in which companies assert ownership over work experience as well as work. A recent survey by economists including Evan Starr, a management professor at the University of Maryland, showed that about one in five employees was bound by a noncompete clause in 2014.

Employment lawyers say their use has exploded. Another recent study showed that noncompete and trade-secret lawsuits had roughly tripled since 2000. Noncompete agreements are not being used beyond the realm of protecting truly proprietary information.  They are being used, and arguably abused, by companies of all types against employees at all levels. 

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. A recent article in the New York Times tells the story of Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another.

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

Read the entire New York Times Story