Posts Tagged ‘Shannon O. Young’

« Older Entries

Don’t Make Fun of the Guy Wearing Pastel Shirts

by HDlawblog Posted: Friday, 8/2/2013

I can’t tell you how many times I’ve heard other guys give a male wearing a pastel shirt a hard time about his “feminine” color choice, but employers might be more apt to snuff out such joking after a recent decision by the Eastern District of California where the court held that, among other things, that calling a male worker’s pastel shirts “girly” was evidence of sex stereotyping.  Although this decision was rendered in California where the notoriously liberal Ninth Circuit has already recognized harassment and discrimination rooted in sex stereotyping as an actionable Title VII claim, the court’s message should cause all employers to worry about whether they are doing enough to create a work environment free of sex-based harassment. 

Indeed, in the matter of Felix v. Cal. Dep’t of Developmental Servs., two special investigators with California’s Department of Developmental Services alleged that they were subjected to years of coworkers’ derogatory name calling and pranks.  The plaintiffs sued under Title VII of the 1964 Civil Rights Act and California’s Fair Employment and Housing Act.  The alleged harassment consisted of, among other things: (1) coworkers joking that one of the plaintiffs dressed in “girly” clothes because he wore pink, lavender, and soft blue colored shirts; (2) coworkers making references to one of the plaintiffs and a male coworker having nipple rings and piercings on their penises that were chained together; and (3)   coworkers sending one of the plaintiffs yellow balloons with a card claiming that he had a secret admirer, which was intended to imply that he was a homosexual because an openly gay male co-worker’s favorite color was yellow.    

The court found that calling a male employee’s clothes “girly” and implying that he had a sexual relationship with male co-workers demonstrated plausible sex-based harassment under Title VII and the FEHA.  This decision should cause employers to question whether they are doing enough to eliminate potential harassment claims from the workplace.  The attorneys at Harmon & Davies are here to assist employers with such matters. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , ,
Posted in Sexual Harassment | No Comments »

The High Cost of Forgetting to Provide Employees with COBRA Notice

by HDlawblog Posted: Friday, 7/26/2013

Forgetting to provide employees with notice of their right to elect COBRA health care continuation coverage under an Employee Retirement Income Security Act governed group health insurance plan, within the 44 day statutory notice period for doing so, may be a costly mistake for employers.  In Fama v. Design Assistance Corp, the Third Circuit held that a former employee, who resigned from a company, was entitled to $2,930 in statutory damages after her former employer was 293 days late in providing the former employee with notice of her right to continued health care coverage.   In so holding, the court said that COBRA penalties of $10 a day are appropriate where an employer does not exhibit bad faith and an employee incurred medical expenses during the lapse in coverage.

  This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , ,
Posted in Labor & Employment | No Comments »

Court Says It’s Not Discriminatory to Drug Test Black Bricklayer Who Went Bonkers at Work

by HDlawblog Posted: Tuesday, 7/23/2013

Earlier this year, the Northern District of Illinois held that there was nothing discriminatory about a company ordering a black employee to submit to a single drug test following a workplace incident where the employee threw coffee on another employee and exhibited abnormal speech, screaming, yelling, and profanity.  In the matter of Berry v. ArcelorMittal USA LLC, the court noted that the company’s drug policy stated that “any employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness for work.”  The company’s drug testing policy was worded in such a manner that it left the decision of whether to order the employee to submit to a drug test to the supervisor’s perception of the employee’s behavior.  Thus, the wording of the drug testing policy helped the employer defeat the plaintiff’s argument that his white co-worker, with whom he had engaged in a conflict on the date in question, should have also been ordered to submit to a drug test because the court found that the supervisor credibly testified that he perceived  the plaintiff, and not the co-worker, as behaving erratically and therefore justifiably ordered only the plaintiff to be drug tested. 

This case serves as a good example of why it is important for companies, and especially construction companies, to have well written drug testing policies.    The attorneys at Harmon & Davies are available to assist employers with drafting their drug policies. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , , ,
Posted in Construction, Drug and Alcohol Testing and Policies | No Comments »

It’s All Fun and Games ‘Till Someone Pushes a Union Official Down the Stairs

by HDlawblog Posted: Thursday, 7/18/2013

For those of you wondering, it is not okay to push a union official down the stairs of your jobsite trailer, which is precisely what a superintendent working for an Arizona building contractor did.  In the matter of Norquay Construction, Inc., the National Labor Relations Board held that such an assault interfered with the protection afforded to unions under the National Labor Relations Act (“NLRA”), which protection covers action taken in furtherance of enforcing or protecting area labor rights.  As a result of such interference, the National Labor Relations Board held the contractor liable to the assaulted union agent for lost pay and medical expenses resulting from the superintendent’s assault. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , , ,
Posted in Construction, Union | No Comments »

Common Ownership of HVAC Firms Not Enough to Pierce Corporate Veil

by HDlawblog Posted: Tuesday, 7/9/2013

Earlier this year in Sheet Metal Workers’ Int’l Ass’n Local 19 v. Main Line Mech. Inc., the Eastern District of Pennsylvania decided a case that is important to members of the construction industry who own multiple companies.  In the aforementioned case, two HVAC firms shared common ownership and a union that had a contract with one of the HVAC firms was trying to piece the corporate veil of the other HVAC firm based upon the common ownership.  The court ruled against the union, holding that although the HVAC firms shared common ownership, the corporate veil of the HVAC firm that never entered into a contract with the union could not be pierced because the companies did not share employees and the companies targeted different types of HVAC work.  The facts of the case, which I discuss in greater detail below, are quite interesting.

  1. HVAC Company No. 1 Enters Into Collective Bargaining Agreement With Union

Main Line Mech. Inc. was a Pennsylvania based HVAC firm.  Several years after its incorporation, Main Line entered into a collective bargaining agreement with Sheet Metal Contractors Association, which contract contained a number of provisions that required Main Line to perform sheet metal work using only union-represented workers.  The contract also forbid Main Line from setting up another business to evade contract obligations.  Leonard Santos served as the president of Main Line and was a minority shareholder in the firm while the majority of the stock was owned by his wife.

  1. HVAC Company No. 2 Does Business Outside of the Union’s Jurisdiction

Santos and his wife also owned another HVAC firm referred to as “Sands.”  Sands and Main Line maintained an office at the same location.  Santos formed Sands to seek business in Northern New Jersey outside the union’s jurisdiction.  Santos and his wife performed work at Sands that was similar to their activities at Main Line, but the court said other than the couple, no one worked for both companies at the same time.

  1. Separation of the HVAC Businesses

Despite the common ownership, Sand and Main Line kept separate unconnected offices and equipment, along with separate finances and corporate records.  Sands competed for public projects in New Jersey requiring payment of prevailing wages, and the court found that the nonunion firm never undertook any contracts within the union’s jurisdiction while Main Line was an active HVAC installation business.

  1. The Nature of HVAC Company No. 1 Changes

Unfortunately, Main Line lost a job in Pennsylvania and was sued for poor performance.  Subsequently, the company gave up HVAC work and limited itself to buying and reselling equipment.

  1. Union officials spot HVAC Company No. 1’s equipment being used by HVAC Company No. 2

Thereafter, Sands was awarded a contract to do HVAC work in New Jersey where union officials spotted the company using several gang boxes and ladders that were labeled Main Line property.  The union filed a grievance against Main Line alleging the company used Sands to perform bargaining unit work, bypassing the union’s contract.  The union-management adjustment board sustained the grievance and assessed more than $202,000 against the firm. Thereafter, the union filed a lawsuit under Section 301 of the Labor-Management Relations Act seeking confirmation of the arbitration award.  The district judge confirmed the award against Main Line, but rejected the union’s request to hold Sands jointly and several liable as the alter ego of Main Line.

  1. The Legal Analysis

In rejecting the request to hold HVAC Company No 2 liable for HVAC Company No. 1, the court examined whether the two organizations had substantially identical supervision, business purpose, operations, equipment or customers.

Although Santos ran both companies, the daily operations were handled by supervisors who differed from one company to the other.  Moreover, Main Line installed large rooftop heating and cooling units on top of hotels, schools, and other large buildings while Sands installed small HVAC units in multifamily residential complexes.  Significantly, apart from Mr. and Mrs. Santos, the companies at no time shared the same employees.

Lessons Learned:  Members of the construction industry who operate multiple construction related businesses need to be vigilant in their efforts to separate the entities.  Here, it was the presence of the Main Line equipment spotted on a Sands job that raised suspicions.  Fortunately,  there was evidence that Main Line had formally sold at least some of the equipment to Sands, but it would have been best for Sands to have removed Main Line’s name from the equipment before using it.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

 

 

 

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Business Law | No Comments »

Merely Undergoing IVF Treatment Does Not Insulate Employee from Termination

by HDlawblog Posted: Friday, 7/5/2013

A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.

In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her.  The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work.  Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment.  In fact, her managers allegedly supported the waitress in her desire to become pregnant.  Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”

Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”.  Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.

Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Labor & Employment, Pregnancy Discrimination, Sex discrimination | No Comments »

New York Attorney General Holds Contractor Accountable for Lax Oversight of Subcontractor’s Prevailing Wage Practices

by HDlawblog Posted: Friday, 6/28/2013

A New York City contractor recently agreed to pay nearly $1 million dollars to settle a prevailing wage investigation into complaints that one of its subcontractors on a public housing project underpaid 31 masonry workers and bricklayers.  The contractor also agreed to pay $100,000 in back wages to four of its laborers, plus $50,000 in costs and fees to the state.

The New York Attorney General’s prevailing wage investigation revealed that for over a year, the contractor’s subcontractor paid masonry workers and bricklayers between $16 to $22 dollars per hour, with no overtime premium, for work that should have been paid at a prevailing wage rate of between $53.55 to  $72.44, plus supplemental benefits.  The investigation further revealed two instances where the contractor failed to classify or list employees in its certified wage payroll reports and two other instances where employees were misclassified at pay rates below what they should have been paid.

The New York Attorney General’s office said that in addition to requiring government contractors to pay wages and benefits comparable to local norms for a given trade, federal and state prevailing wage laws also hold general contractors responsible for underpayments by their subcontractors.

The settlement mandated that the contractor’s contracts with any subcontractor on public or private construction projects state that compliance with labor laws is a material term of the contract and that the subcontractor may be terminated if it does not fix labor law violations brought to its attention.

According to New York’s Attorney General, his office will hold contractors accountable for their prevailing wage violations and for their lax oversight of subcontractor’s practices.

Lesson:  Contractors need to pay attention to their subcontractor’s payment practices.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Public Works | No Comments »

“That Woman” Plumber Has a Triable Hostile Work Environment Claim

by HDlawblog Posted: Friday, 6/14/2013

In the recent case of Hall v. Chicago the Seven Circuit found that a female plumber, (sometimes referred to as “Hall” by the author of this blog and allegedly referred to as “that woman” by her supervisor), has a triable hostile work environment claim under Title VII of the Civil Rights Act of 1964 based on incidents which viewed in isolation may seem relatively minor, but when viewed in their totality the court deemed sufficiently pervasive to make out a hostile work environment claim.

Hall or “that woman” was a female plumber for the City of Chicago and the only woman, aside from a secretary, in her division.  Hall claimed that that her male supervisor isolated her from coworkers, assigned her menial work, and subjected her to physically aggressive comments.  Specifically, she alleged that she was treated as the division pariah, undeserving of human interaction, that she was given menial tasks such as alphabetizing and sorting the same files and watching videotape footage that had already been reviewed.  The allegedly aggressive comments included her boss saying that he: “ought to slap that woman sitting out there,” “I could slap that woman and get a promotion” and “I ought to go postal on that woman.”

At the trial level, the court granted summary judgment in favor of the City of Chicago, but on appeal, the Seventh Circuit found that although Hall’s claims would not individually be considered severe or pervasive harassment under Title VII, a reasonable jury could view them together as creating a hostile work environment.  The appeals court also found that Hall established a triable factual dispute about whether her supervisor’s alleged harassment was based on her sex, but the court admitted this was a close call.

Interestingly, the court acknowledged that while Hall’s work may have been “unpleasant, boring, and unnecessary, that can be said of much work and there is no right to enjoyable work or to communicate with coworkers.  However, the court found that when forced to look at the totality of the circumstances, incidents which viewed in isolation as relatively minor, that consistently or systematically burden women throughout their employment are sufficiently pervasive to make out a hostile work environment claim.  The court found that in Hall’s case, her supervisor not only assigned her menial work, but he purportedly isolated her from co-workers, subjected her to verbal outburst, and physically bumped her on occasion.

As for Hall’s claim that the harassment was sex based, the court said it was a close call.  The court referenced the supervisor’s alleged comments and noted that rarely does one say that they are going to “slap a male” and to the extent that ambiguity remains, the supervisor attached “that woman” to the end of the sentence permitting a juror to conclude Hall’s gender was one factor leading to the outburst.  However, the court commented that not all sex-specific comments are evidenced of animus based on sex.  “Where a comment crosses the line from gender specific to evidencing gender animus is blurry and depends on factual context.”  Although the court viewed the supervisor’s use of “that woman” as indistinct from the use of “she,” and therefore not evidence of gender-based animus, the court felt that a jury could conclude that the comments evidenced gender animus.

The takeaway:  train supervisors to avoid phrases such as “that woman” which may have undertones of discrimination.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , ,
Posted in Labor & Employment, Sex discrimination | No Comments »

Pennsylvania Federal Court Finds Former Burger King Manager Has Triable Disability Claim

by HDlawblog Posted: Wednesday, 5/29/2013

In the disability discrimination case of Buffington v. PEC Mgmt. II LLP, the U.S. District Court for the Western District of Pennsylvania had to decide whether reasonable minds could differ over whether a former Burger King manager was fired for violating a company rule or for taking too much time off to care for her teenage son who was battling a cancer relapse.   The former manager alleged that Burger King fired her for tending to her sick son, but that the company used her violation of a company policy as a pretext for the firing, which firing was in violation of the American with Disabilities Act and the Pennsylvania Human Relations Act.

How did we arrive at this mess?  Well, the former manager had been employed by Burger King for seven years with no written or oral warnings regarding her performance, but then she violated a company policy by sending an employee out to pick up product from another Burger King that the manager’s Burger King had run out of.  At that time, the former manager was the only manager on duty and the employee that she choose to pick up the product drove his own car to the nearby Burger King.  Unfortunately, the employee got into an accident while running the errand.  Yikes!  I guess you can’t always have it your way.

Anyway, the accident resulted in the former manager’s firing.  Burger King’s corporate policy forbid nonmanager employees from driving for restaurant business.  The company claimed that this violation of the corporate policy coupled with the former manager’s allegedly declining, but undocumented performance, was was grounds for termination.  The former manager disagreed and claimed that the company just used her violation of the policy as an excuse to fire her because she had been tending to her sick son.  In fact, the former manager alleged that the rule prohibiting nonmanager employees from driving for restaurant business was never enforced and that it was common practice for managers to send staff on errands to other restaurants.  The former manager also presented evidence that other mananagers outside of her protected class (i.e. employees who were not caring for sick children)had violated the policy, but were not fired.  If true, these allegations create a problem for Burger King.

It gets worse.  The former manager alleges that her supervisor met with her before her firing and that during this meeting the former manager’s supervisor commented that the restaurant needed “someone whose head is there 100 percent,” and said that now the former manager could spend more time with her son.  Ouch.  For the employer’s sake, let’s hope this isn’t true.

Based upon the above facts, following her termination, the former manager sued Burger King.  Burger King claimed that the manager was fired because her performance had been steadily declining and the violation of the company policy was the straw that broke the camel’s back.

Nonetheless, in denying Burger King’s motion for summary judgment, the Court found that the former manager sufficiently raised questions of genuine material fact regarding Burger King’s true motivation for firing the manager.  If the true reason for the termination of the manager was the manager spending time with her son, then a jury might find that Burger King relied on unfounded stereotypes or assumptions about the type of care the manager would need to give to her son in the future.

Employers’ Takeaway: 

First, enforce policies uniformly and consistently.  The former manager claimed that other managers outside of her protected class violated the vehicle policy without being fired.  Although this is merely an allegation, it serves as a reminder of the importance of uniform policy enforcement.

Second, keep good records of employee performance. Burger King claims that the manager’s performance had been declining.  If this was the case, Burger King should have kept a better record of her allegedly declining performance in the form of warnings and written evaluations.

Third, ensure that supervisors receive anti-discrimination training.  If the supervisor truly made the comments that the manager alleges she made, such comments were inappropriate.  Supervisor training might have helped to avoid such unwanted comments.

The attorneys at Harmon & Davies are here to advise employers on policy enforcement issues, performance evaluations, and supervisor training.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , , , ,
Posted in Disability Discrimination, Labor & Employment | No Comments »

Unionville-Chadds Ford School District Sued for Age Discrimination

by HDlawblog Posted: Tuesday, 5/28/2013

By way of disclaimer, I am a graduate of the Unionville-Chadds Ford School District, which in my biased opinion is an excellent public school.  In fact, U.S. News and World Report ranks Unionville High School the  10th best public high school in Pennsylvania and the 507th best public high school in the nation, out of approximately 22,000 schools, which places it roughly in the top 2% of public schools.  Yet, despite its prestige the Unionville-Chadds Ford School District was recently sued by one of its employees for alleged discrimination under the Age Discrimination in Employment Act (“ADEA”). 

Summarily, a paraprofessional at the school in her late 50s alleged that she was disciplined for reprimanding students while a significantly younger 30 something-year-old employee who similarly reprimanded the same group of students was praised for her actions.  Additionally, the employee alleged that the school’s principal (also a 30 something-year-old) made allegedly discriminatory comments about the employee having a “senior moment.” 

The outcome of the case remains to be seen, but the school district suffered a loss earlier this month when the Eastern District of Pennsylvania denied its motion to dismiss becaues the court found that the employee plausibly alleged age discrimination.  Interestingly, it appears that it was the employee who first used the term “senior moment” when explaining to the principal why she couldn’t remember something.  When the principal, in turn, commented on the employee’s self-proclaimed senior moment, the employee complained that the principal’s statements were offensive and that he needed to be careful about commenting about a person’s mental capacity or ability.  It’s a lesson how in the employment law context the saying “what’s good for the goose, is good for the gander” does not necessarily ring true.  In other words, if an employee blames their age as the reason for their mistake, supervisors should be trained to steer clear of those traps. 

Another challenge that the school district faces is overcoming what looks like disparate treatment of employees who disciplined students under allegedly similar circumstances.  Here, the senior employee was disciplined for her actions while the 30 something-year-old employee was praised for taking allegedly similar action.  If the only distinguishing factor was the age of the employee, this case might not go well for the school district.  This is why employers need to administer discipline on a uniform basis. 

As a member of the Unionville High School class of 2000, I wish my school district the best of luck in defending this case, but then again, we are talking about a school district where an Indian remains the high school mascot. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Post to Twitter Tweet This Post

Tags: , , , , , , , , , , , , , , , ,
Posted in Age Discrimination, Labor & Employment | No Comments »
« Older Entries