Second Circuit Finds Sex Harassment Claim Was Not Accidental or Minor

on May 07 in Harassment tagged , , , , by Anthony Rao

A female plaintiff sued her employer (NY State Division of Parole) alleging sexual harassment by a female supervisor (not plaintiff’s supervisor) in violation of Title VII.  The Eastern District of New York granted summary judgment for the employer finding that the alleged touchings of plaintiff’s breasts were minor and incidental, episodic, may have been accidental, and did not occur because of plaintiff’s sex. The Second Circuit reversed.

Plaintiff’s complaint alleged that the female supervisor touched her breasts (she was “subjected to homosexual advances”) on three occasions between mid-April and mid-September 2005 (the supervisor allegedly brushed up against her breasts, rubbed up against her breasts in a hallway, and walked up behind her while she was seated and felt her breasts).  Plaintiff alleged she was uncomfortable, she complained to her supervisor and to Human Resources (but no action was taken), and attempted to avoid going into the supervisor’s office but was required to do so when called.

The Court stated the district court’s analysis that “[e]ven drawing all inferences in [plaintiff’s] favor, the contact may have been purely accidental” was flawed.  Because the supervisor repeatedly went out of her way to make contact with plaintiff, always made contact with the same part of plaintiff’s body, never apologized, and ‘rubbed up against’ and ‘felt’ plaintiff’s breasts, the touchings could not be considered “accidental.”  The Court stated “… the interpretation of whether [the touchings] were accidental or not – and whether or not they were because of [plaintiff’s] sex – were issues of fact for the jury to decide, not issues for the court to resolve as a matter of law.”

Although plaintiff stated that she did not attribute any suggestive or sexual remarks to the supervisor, the Court stated “if the claim were that a supervisor – of either gender – stated to a female employee ‘I want to feel your breasts,’ … a jury could easily infer that that stated desire was because of the employee’s sex … A district court could not properly rule as a matter of law that that gender-specific harassment was not because of the employee’s sex.”

The bottom line as stated by the Court: “the repeated touching of intimate parts of an unconsenting employee’s body is by its nature severely intrusive and cannot properly be characterized as abuse that is minor.”

The case is Redd v. New York State Division of Parole and can be found here.

California Supreme Court Finally Decides That Employers Must Relieve Employees of All Duty During Meal Periods But Does Not Have To Ensure That No Work is Performed

on Apr 12 in California, Class/Collective Action, Policies, Wage/Hour tagged , , , by Anthony Rao

In a unanimous decision, today the California Supreme Court held that employers are not required to ensure that employees stop all work during meal periods.  Rather, employers must relieve its employees of all duties (“provide”) during a 30-minute meal period wherein employees may do whatever they please.  A meal period must be provided by the fifth hour of work, and a second meal period must be provided by the 10th hour of work.

The simple rule is employers cannot control an employee’s time during a meal period: “The worker must be free to attend to any personal business he or she may choose during the unpaid meal period … Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.”  If an employer fails to provide a meal period under this standard, the employee is owed a one-hour wage premium under Cal. Lab. Code §226.7.  However, if the employer provides a meal period and relinquishes control but the employee chooses to work, if the employer knows or reasonably should have known about the work, the employee must be paid straight time wages for the time worked but not the one-hour wage premium.

The Court also analyzed rest periods.  Employees are entitled to a paid 10 minute rest period for shifts between 3.5 and 6 hours, and to another paid 10 minute rest period for shifts between 6 and 10 hours.  Rest periods do not have to be provided before meal periods as the plaintiffs argued.

Finally, the Court discussed whether the underlying meal and rest period claims were suitable for class treatment.  The Court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment – so there is more to come in the future.  Bottom line, the Court concluded that the plaintiffs had identified a suitable rest period theory for class recovery.  With respect to meal period class claims, the Court remanded in light of its ruling.  The Court affirmed the Court of Appeal’s decision to vacate class certification relating to off-the-clock work.

The decision is Brinker Restaurant Corp. v. Superior Court (Hohnbaum), S166350 and it can be found here.

New Jersey Department of Labor and Workforce Development calls for a “Do Over” on the Inside Sales Exemption.

on Mar 11 in New Jersey, Wage/Hour tagged by Michael Tiliakos

New Jersey employers relying on the “inside sales” exemption can breathe a bit easier these days. In September 2011, the New Jersey Department of Labor and Workforce Development (NJDLWD) amended its wage and hour regulations to be consistent with federal overtime laws. The only problem was the amended regulations inadvertently omitted the “inside sales” exemption from the amended regulations. Here’s how it happened: New Jersey regulations previously included the “inside sales” exemption in the definition of “administrative employees.” But when the New Jersey regulations were amended to adopt the federal overtime regulations at 29 C.F.R. Part 541 (which does not contain the “inside sales” exemption), New Jersey employers suddenly found themselves without the benefit of this exemption. Oops. NJDLWD acknowledged the mistake was inadvertent but still had to go through the required notice and comment rulemaking period.

On February 21, 2012, NJDLWD fixed the mistake and fully restored the “inside sales” exemption in New Jersey. Under the current New Jersey wage and hour regulations, an “administrative” employee is someone whose (1) primary duty is sales, (2) total compensation is made up of at least 50% commissions, and (3) total compensation is at least $400 a week.

New Jersey employers relying on the “inside sales” exemption should take a careful look at whether their commissioned sales employees fit into this exemption under both state and federal law.

NEW YORK

90 Park Avenue, 18th floor

New York, NY 10016

Main: 212-455-9255

Fax: 212-297-0005

SAN FRANCISCO

201 Spear Street, Suite 1100

San Francisco, CA 94105

Main: 415-230-5334

Fax: 212-297-0005