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A federal judge denied a motion to dismiss a police officer’s lawsuit against a Pennsylvania borough and multiple borough officials for alleged retaliation and civil rights violations. The plaintiff alleged retaliation for reporting fraud by the former police chief to state authorities. Beatty v. Ohioville Borough, et al, No. 2:14-cv-00067, 2nd am. complaint (W.D. Pa., Jul. 25, 2014). The police chief eventually pled guilty to theft and forgery for submitting fraudulent timesheets. Several defendants moved to dismiss the suit, arguing in part that they could not be sued in their official capacities. The court disagreed, finding that Congress intended to allow lawsuits to hold public officials individually liable for civil rights violations under 42 U.S.C. § 1983.

The plaintiff is a part-time police officer in Ohioville Borough, Pennsylvania. He reportedly found evidence that the police chief was defrauding taxpayers and took this to the Pennsylvania State Police in August 2012. A criminal investigation led to allegations that the chief submitted fraudulent timesheets over a three-year period, costing taxpayers over $45,000. He was charged with 63 felony counts of forgery and one felony count of theft in February 2013. The Ohioville Borough Council voted unanimously in January 2014 to allow him to retire instead of firing him. He pled guilty to two misdemeanor counts of theft and forgery in September 2014.

While the police chief’s saga was unfolding, the plaintiff claims that he faced retaliation by borough officials, including the mayor, the assistant chief of police, the solicitor, and the members of the Borough Council. He claims that he was denied a promotion in August 2012, shortly after he went to the state police, and that he was suspended in October without good cause. The mayor allegedly “encouraged private citizens to file false and fraudulent complaints” against him during this time period. Beatty, complaint at 7. The plaintiff was suspended again in January 2013, allegedly without any explanation or opportunity to respond. He was placed back on the schedule again in March but suspended indefinitely on March 17 for reasons he claims were pretextual.
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The U.S. Supreme Court will hear the appeal of a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The complainant alleged that the company, a retail clothing chain, refused to hire her because she wears a hijab, the headscarf commonly worn by many Muslim women. The company claimed that the hijab violated its dress code. It argued in court that the complainant never requested a religious accommodation during the job application process, although she wore a hijab to her in-person interview. An unpublished 2013 New Jersey decision addresses a similar religious discrimination claim by a Sikh man.

Abercrombie operates a nationwide chain of retail clothing stores that market a particular style, supported by a comprehensive, and often controversial, “Look Policy” for its employees. The complainant applied for a job at an Abercrombie Kids store in Tulsa, Oklahoma in 2008, when she was 17 years old. She wore a hijab to her interview, where an assistant manager reportedly gave her a good enough score on her style to recommend her for employment. A supervisor allegedly rejected her because the “Look Policy” does not allow employees to wear hats or other head coverings. The supervisor has since claimed to have had no knowledge that the headscarf–which the complainant wore to a job interview with an employer known for its expansive dress code–was worn for religious reasons.

The EEOC investigated her claims of religious discrimination and filed suit in 2009. Abercrombie settled two similar EEOC lawsuits in 2013. One alleged refusal to hire, and the other involved a woman who claimed that the company fired her after a district manager visited the store and disapproved of her hijab. The company paid a total of $71,000 to the two women and agreed to allow female employees to wear hijabs. The Oklahoma case was already pending when the settlement occurred.
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The New York State Attorney General (AG) filed a lawsuit against a Manhattan pizza franchisee, alleging that it underpaid hundreds of delivery workers by about $1 million. New York v. New Majority Holdings, LLC, et al., No. 452487/2014, verif. pet. (N.Y. Sup. Ct., N.Y. Co., Oct. 16, 2014). The lawsuit claims that the company did not pay its delivery employees for the actual amount of hours they worked, did not compensate them for job-related expenses, and “shaved” hours off their timesheets and paychecks. It seeks about $2 million in liquidated damages, statutory damages, and restitution for underpayment of wages.

Federal law currently sets the minimum wage at $7.25 per hour, 29 U.S.C. § 206(a)(1)(C), and states may establish higher minimum wages. In the state of New York, the minimum wage increased from the federal level to $8.00 per hour at the end of 2013, N.Y. Labor Law § 652. It will increase to $8.75 per hour at the end of 2014, and to $9.00 one year later. New Jersey’s minimum wage is currently $8.25 per hour, and it will increase to $8.38 on January 1, 2015. N.J. Rev. Stat. § 34:11-56a4.

State and federal law requires employers to pay hourly workers at one-and-one-half times their hourly rate if they work more than 40 hours in a week. See, e.g. 29 U.S.C. § 207. A common wage violation involves an employer who requires workers to perform duties outside of the time when they are “on the clock.” If this additional time is taken into account, the amount of wages paid to the worker might be less than the minimum hourly wage, or the worker might be entitled to overtime pay.
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In September 2014, the story of an employer who laid off a woman shortly after learning of her cancer diagnosis went “viral,” moving quickly from local to global news coverage. The story highlights an important question for employees and their advocates about how state and federal employment laws protect people when they are diagnosed with cancer or another serious illness. Federal laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) offer some protection, but they do not apply to many small employers. State laws, such as New Jersey’s Law Against Discrimination (LAD), sometimes offer broader protections.

A local news site in Pennsylvania reported on a woman who notified her employer of about 12 years that she had been diagnosed with cancer. The employer reportedly sent her a handwritten letter informing her that that he was laying her off without pay, noting that she would not be able to fulfill her employment duties while also undergoing cancer treatment. The story took off when a family member posted a copy of the letter to the internet.

The woman has avoided media attention and is reportedly focusing on her treatment. The employer has stated that everyone has misinterpreted the letter, and that he intended to help her by giving her time away from work. Local news reported that he did not contest her unemployment claim, which gives her 26 weeks of benefits. Nothing else has appeared in the news about the story since mid-September.
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Worker’s compensation (WC) is a type of insurance that compensates employees for injuries suffered in the course of their employment. Coverage is essentially assured for workers who can establish that the injury was job-related and not due to their own negligence. The tradeoff is that the amount of coverage is limited to medical benefits and lost wages, and workers have no recourse through the courts. Most states have made WC the exclusive remedy for injured workers, although New Jersey still allows employers to opt out of the system. The limited amount of benefits available to an injured worker, along with lack of access to the courts, led a Florida judge to rule that state’s WC statute unconstitutional. Florida Workers’ Advocates v. Florida (“FWA“), No. 11-13661, order (Fla. 11th Cir. Ct., Aug. 13, 2014).

The basic purpose of the WC system, if you view it in the most favorable light possible, is to remove the uncertainty and difficulty of litigation and ensure compensation for injured workers. The obligation to pay claims, in exchange for the loss of access to the courts, is sometimes known as the “compensation bargain.” In practice, of course, this “bargain” often denies workers adequate compensation for their injuries. Most states also make the WC system compulsory for injured workers, denying them the right to a civil trial. The Seventh Amendment right to a trial by jury in civil cases has never been applied to the states under the Fourteenth Amendment. The U.S. Supreme Court has affirmed this view, holding that compulsory WC systems do not violate the Constitution. Mountain Timber Co. v. Washington, 243 U.S. 219, 235 (1917). See also New York Central R. Co. v. White, 243 U.S. 188 (1917); Hawkins v. Bleakly, 243 U.S. 210 (1917).

Florida’s WC system is the exclusive remedy for workers injured on the job. Fl. Stat. §§ 440.10, 440.11. The recent decision involved a woman who tripped over boxes left on the floor at her workplace, causing injury to her shoulder. Even after shoulder replacement surgery, she was in so much pain that she was forced into early retirement. She intervened in a lawsuit seeking a declaratory judgment holding the WC statute unconstitutional.
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The Equal Employment Opportunity Commission (EEOC) announced this summer that it settled a disability discrimination lawsuit against the drugstore chain Walgreens, which allegedly engaged in wrongful termination based on a health condition. EEOC v. Walgreen Co., No. 3:11-cv-04470, complaint (N.D. Cal., Sep. 8, 2011). The company claimed that the termination was based on “misconduct,” but the court found that misconduct that is directly related to an employee’s disability must be considered in connection to the disability. Shortly after the court denied the defendant’s motion for summary judgment, the parties entered into a consent decree in which the company agreed to various forms of injunctive relief and $180,000 in damages.

The complainant worked for Walgreens for about 18 years. She was diagnosed with Type II diabetes in 1995, after about five years at Walgreens. The company knew about her condition and generally allowed her to have candy in case her blood sugar got too low, to keep insulin in the employee break room, and to take additional breaks to eat or test her blood sugar.

While she was restocking shelves on September 17, 2008, the complainant began experiencing symptoms of low blood sugar, including sweating and shaking. She did not have any candy on her person at the moment. Fearing a hypoglycemic emergency, she took a bag of chips from the cart of items to be restocked and ate some of them. The bag had a retail price of $1.39. She claims that she began to feel better after about 10 minutes and went to the cosmetics counter to pay for the bag of chips. Finding no one there, she put the bag under the register and returned to her restocking duties.
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The National Labor Relations Board (NLRB) recently affirmed a prior ruling holding that it has jurisdiction to enforce the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. in a dispute involving a Michigan casino operated by an Indian tribe. Soaring Eagle Casino and Resort, et al, No. 07-CA-053586. An administrative law judge (ALJ) ruled that the casino violated a former employee’s rights under the NLRA. The tribe, the Saginaw Chippewa Tribal Nation, has denied that the NLRB has jurisdiction over it because of tribal sovereignty. The U.S. government recognizes hundreds of Indian tribes as “domestic dependent nations,” with a degree of sovereignty over their own members. Tribal law is incredibly complicated, but the question presented in this case is relatively simple: does the NLRA, a federal statute, apply to a business owned and operated by an Indian tribe? At least one federal circuit court of appeals has held that it does, and courts have held that other statutes are binding on tribes.

A former employee of the Soaring Eagle Casino filed a complaint with the NLRB in 2011, claiming that she was fired for soliciting support among her co-workers for a union. An ALJ ruled in the employee’s favor in March 2012, dismissing the tribe’s argument that the NLRA should not apply to activities at the casino. The casino is located on land that belongs to the tribe under treaties ratified in 1855 and 1864, but the complainant argued that because the casino is not “an essential Government operation of the Tribe,” it should be subject to the NLRA. Soaring Eagle, ALJ Decision at 7 (March 26, 2012).

The ALJ noted that statutes of “general application” may apply to individual tribal members, Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and that the NLRB has found the NLRA to be such a statute. He concluded that the casino is engaged in commerce as defined by the NLRA. 29 U.S.C. §§ 152(2), (6)-(7). Prior cases have reached similar decisions. The D.C. Circuit Court of Appeals held that the NLRA applies to a casino operated on tribal land in San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). Another court held that the Occupational Health and Safety Act applies to commercial activities on tribal land. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).
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An employment agreement from a national chain of sandwich shops includes a non-competition clause that purports to impose remarkably broad restrictions on employees, according to a story in the Huffington Post. This type of clause typically states that an employee may not accept employment with the employer’s competitors while still working for the employer, or for a period of time after their employment ends. The clause was reportedly included in employment agreements for relatively low-level employees, which seems unusual because non-competition agreements are usually used for employees who gain a substantial amount of knowledge about the employer’s operations. Most states allow employers to enforce non-competition agreements in some circumstances, although the details vary from state to state. The general policy of New Jersey is that employers do not have a “legitimate interest in preventing competition” by former employees, Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 33 (1971), unless the employer can show some risk to proprietary information.

A typical non-competition, or “non-compete,” agreement may state that an employee cannot work for a competitor while he or she works for the employer, or for a specific period of time after his or her employment ends. To be enforceable as a general rule, a non-compete agreement must specifically identify the type of employment, or employer, that is prohibited. It must have reasonable geographic restrictions, such as within a limited radius of the employer’s location. It must also have a reasonable duration, such as six months or one year. New Jersey imposes additional restrictions on non-compete agreements, as do some other states.

The Huffington Post story involves an employment agreement produced by an employee of the sandwich chain Jimmy John’s in a Fair Labor Standards Act (FLSA) lawsuit. Brunner v. Jimmy John’s Enterprises, Inc., et al, No. 1:14-cv-05509, 1st am. complaint (N.D. Ill., Sep. 19, 2014). The agreement includes a provision prohibiting the employee from working for a competitor, defined as a business that obtains at least 10 percent of its revenue from the sale of various types of sandwiches. Id. at Exhibit A at 3. The non-compete clause has a duration of two years after the end of employment with Jimmy John’s, and it applies to any competing business located within a three-mile radius of any Jimmy John’s store.
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Employees of numerous major fast-food restaurant chains have mounted campaigns to improve their working conditions, including higher wages and fewer unpaid hours. A major hurdle for these campaigns has been the franchise model used by many chain restaurants, in which one company, the “franchisor,” owns the restaurant’s brand, logo, menu, and other intellectual property, while other companies, “franchisees,” operate the actual restaurants. This has created what has been called the “fissured workplace,” since it often limits any legal claims employees can make to the franchisee that operates the restaurant where they work. The General Counsel of the National Labor Relations Board (NLRB), however, recently announced that it will treat McDonald’s USA, LLC, the franchisor of McDonald’s restaurants, and its franchisees as “joint employers.” This means that employees may file complaints against both the individual franchisee that employs them and the franchisor.

In a franchise system, a franchisor enters into agreements with franchisees to operate one or more business locations. The franchise agreement includes various requirements that the franchisees must follow related to branding, marketing, and business operations. Employment issues are often left to the individual franchisees, at least according to the written agreements. Since workers at individual business locations are employed by a franchisee, they cannot assert claims directly against the franchisor. A major criticism of this system is that the terms of franchise agreements have expanded in scope, to the point that they often have direct effects on employment matters. The franchisors, however, remain shielded from liability to the franchisees’ employees.

The NLRB’s Office of the General Counsel (OGC) decided in July 2014 to allow workers to file complaints against both their employer and the national franchisor. At the time of this announcement, the NLRB had received 181 complaints against McDonald’s franchisees since November 2012. While 64 complaints were still under investigation, it had already found 43 of them to have merit. If the NLRB is unable to settle the meritorious complaints, it may file lawsuits naming the individual franchisees and the franchisor as defendants.
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Concern over infectious diseases has captured the imagination of much of the country in recent months, particularly with regard to Ebola virus disease (EVD). Only a handful of EVD cases have been reported in the U.S., and health officials and experts have repeatedly stated that the disease is unlikely to pose a serious threat to the country. Other diseases, such as influenza, pose a far greater threat in the U.S. but generally receive less media attention. Regardless, since a disease outbreak is on the nation’s mind, it raises the question of what legal duties employers owe to protect their employees from infectious diseases. The answer depends largely on the type of employer.

The first case of EVD in the U.S. was diagnosed at a hospital in Dallas, Texas in September 2014. That patient has since died, and two nurses who treated him were subsequently diagnosed with EVD. The Centers for Disease Control and Prevention (CDC) is investigating reports that health care workers treated the initial EVD patient for about three days, from September 28 to September 30, without wearing protective equipment. As many as 70 workers were exposed to the patient during that time, but only the two nurses have tested positive for the disease. EVD is not airborne and can only be transmitted through direct contact with an infected person’s blood or other bodily fluids.

The actions and preparedness of the Dallas hospital, including an alleged lack of safety protocols, drew a harsh rebuke from the hospital’s nurses. The incident has raised concerns about whether the hospital took adequate precautions to protect its workers from infection. Laws like the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., require employers to provide reasonable protection against occupational diseases. This could apply to workers in health care and other fields where ordinary job duties make exposure to infectious diseases likely. See American Dental Ass’n v. Martin, 984 F.2d 823 (7th Cir. 1993).
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