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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at hrlawupdate@verrilldana.com, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Thursday
Feb042016

With a Little Help from my Friends: 8th Circuit Assumes Without Deciding that Associational Bias Claims Exist Under Title VII

Update regarding an issue we’ve previously blogged about. The Eighth Circuit assumed without deciding that individuals can sue for retaliation or discrimination under Title VII based on their association with a member of a protected class.

The Second, Fifth, Sixth and Eleventh Circuits have explicitly ruled the statute permits “associational discrimination” claims. Following a ruling from the U.S. District Court for the Eastern District of Arkansas, in Hutton v. Maynard, the Eighth Circuit assumed without deciding that Herman Hutton, the white former police chief of England, Arkansas, engaged in legally protected conduct when he sought to promote a black woman to a supervisory position. As the Court put it, “It is unclear whether Hutton also attempted to assert a claim of associational race discrimination separate and distinct from his claim that he was terminated in retaliation for seeking to promote an African American staff member. Even if he did, our analysis would not change. Hutton’s desire to promote an African American is the only ‘association’ he asserts and is the only purported statutorily protected activity at issue.” (Emphasis supplied.) (Ultimately the Court concluded that Hutton could not connect that conduct to the decision to fire him.)

We’ll continue to monitor this issue, but the trend looks like it’s moving towards recognizing associational discrimination as a viable Title VII claim nationwide.

Wednesday
Feb032016

In Electing to Change 57-Year-Old Precedent, the NLRB Further Shortens the Time Employers Have to Respond to a Union Campaign

On January 29, 2016 the NLRB issued a decision in which it changed (under the guise of clarifying) one of the election rules for mail-ballot elections. See Guardsmark, LLC and Int’l Union, Security, Police, and Fire Prof’ls of Am., 363 NLRB No. 103 (2016). At issue was at what point in a mail-ballot election the prohibition on holding a mass campaign meeting—commonly known as a “captive-audience meeting”—goes into effect. The rule is clear in manual elections: employers and unions are prohibited from holding a captive-audience meeting within the 24-hour period prior to the election. However, the timing of the prohibition when an election is conducted by mail-ballot has apparently been a source of confusion for the Board.

In a decision from 1959, the Board held that the captive-audience prohibition in mail-ballot elections begins when the ballots are scheduled to be mailed to members of the petitioned-for unit by the Regional Office. Oregon Washington Telephone Co., 123 NLRB 339 (1959). Despite that bright-line rule, the Board in Guardsmark noted that recent decisions had suggested that the captive-audience prohibition actually goes into effect 24 hours before the ballots are scheduled to be mailed. Such decisions, the Board said, were consistent with the rule in manual elections. Therefore, in order to bring the mail-ballot election rule in line with the manual election rule and to “achieve the clarity, uniformity, and simplicity that a single rule for all elections will provide,” the Board overruled Oregon Washington Telephone and held that the captive-audience prohibition goes into effect 24 hours before ballots are mailed.

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Wednesday
Feb032016

Yahoo Announces New Layoffs, Gets Sued for Old Ones

Interesting employment law angle to Yahoo’s announcement yesterday that it would explore “strategic alternatives,” including a possible sale of some of its assets, and lay off about 15% of its 11,000 employees. The day before the announcement, Gregory Anderson, an editor fired by Yahoo in November 2014, filed a complaint in U.S. District Court in San Jose, alleging that the Company’s senior managers routinely manipulated employees’ quarterly performance reviews in order to fire hundreds of people without just cause to achieve the company’s financial goals.

In the complaint, Anderson alleges that Yahoo, which fired over 1,100 employees in 2014-2015, used the reviews as a subterfuge to evade California law regarding advance notification of mass layoffs as well as WARN.

More on the litigation and the layoffs as matters develop, including whether Yahoo is able to get traction in the tech sector with this attempted “remix.”

Wednesday
Feb032016

Roses are Red, Violets are Blue, Greeting Card Giant Settles Class Action Suit

Last week American Greeting Corporation settled a wage and hour class action under the FLSA and California state wage and hour laws in Smith v. American Greetings Corp., No. 3:14cv02577 (N.D. Cal. Jan. 29, 2016). Additionally Plaintiffs brought claims under the California Private Attorneys General Act which permits litigants to act as representative plaintiffs without court ordered class certification. The action was brought on behalf of 3,743 field sale operation employees in California. The class action alleged that employees were not fully reimbursed for mileage, meals and mobile phone expenses that were associated with travel to work sites. The class members were responsible for maintaining and assembling greeting card displays in well-known retail locations including Target and Rite-Aid. American Greeting Corporation settled for $4 million which was approximately 20 percent of what the workers would have been entitled to if every claim had been successful at trial.

As we have previously discussed, wage and hour class actions can have a significant impact on company’s bottom lines. Accordingly, it remains extremely important that employers continuously audit their wage and hour practices to make sure they are following best practices. If you have questions about compensable or non-compensable time, give a member of Verrill Dana’s Labor & Employment Practice Group a call to further discuss.

Friday
Jan292016

EEOC Builds Off of "Rosebud" Momentum Seeking Extensive Pay Data

Today the EEOC announced proposed changes to the EEO-1 form that will affect federal contractors and all employers who employ over 100 individuals. The proposal (available here) would require employers to provide wage data for employees falling into 10 job categories with the requirement that employers identify gender, race, hours worked, and wages earned. The wage categories proposed provide:

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Friday
Jan292016

Makers of Milk’s Favorite Cookie not Favorites of Employer, Says Union

In anticipation of planned layoffs at a Chicago factory that produces such confections as Oreos and Chips Ahoy, the union for workers at the factory has taken the somewhat unusual (albeit not unprecedented) step of filing a complaint of discrimination with the EEOC. In its complaint to the EEOC, the union alleges that the planned layoffs are improperly motivated by age and racial bias.

The owner of the factory, Mondelez International, has said that the layoffs are necessary to save $46 million per year in order to provide for technology upgrades and to prevent locating up to 600 positions to a factory in Mexico. In its complaint, however, the union countered that none of the other Mondelez factories that required capital expenditures sought to save money for doing so by laying-off workers. Additionally, the union argued that the demographics of the Chicago factory are different than those of the other Mondalez factories in that about 86% of the employees in the union are over the age of 40 and about 68% are people of color. Despite those assertions and arguments, the union did not, however, provide the demographics of non-union employees at the factory or the demographics of employees at the other factories that allegedly did not require lay-offs.

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