Quick Hits: Employment Law from Coast to Coast

This has been an eventful summer for employment and labor laws and workers both at home and beyond our walls. At Pelton & Associates, we’re hearing about all kinds of wage theft and mistreatment of workers. The law can never cover every conceivable situation, and employers can be very creative about implementing new and perplexing pay practices. And around the country, there are big settlements in the headlines, important court decisions and legislation all coming together to improve workplaces and promote fair pay and fair treatment for workers.

FedEx Drivers Are Employees, Not Independent Contractors: After a Multi-District Litigation Court concluded in Alexander v. FedEx that FedEx drivers in California are independent contractors, the Ninth Circuit reversed, finding that FedEx “exercise[s] a great deal of control over the manner in which its drivers to their jobs.” A California state court had previously found another group of FedEx drivers to be regular employees as well, entitled to state and federal wage and hour and other employment protections, and in discussing Alexander v. FedEx, the Ninth Circuit cited numerous other California cases where delivery drivers were held to be employees, not independent contractors, for the purposes of workers’ compensation. This is great news and part of continuing trend around the country, from California to New York, of recognizing the rights of delivery drivers to fair pay.

Cheerleaders Receive Backpay, Better Wages: Cheerleaders for the Oakland Raiders have settled their lawsuit against the team for a reported $1.25 million. As we reported in April, the cheerleaders alleged that the team wielded enormous control over their employment, down to regulating the type of underwear they could wear, and paid cheerleaders only for games they worked while requiring them to attends hundreds of hours or trainings and make numerous unpaid appearances every season. The team also issued a new contract for its cheerleaders, which includes a $9.00 hourly rate – which may not sound like much, but it almost triples their earnings. We hope that this change and this substantial settlement will pave the way for better treatment of these hardworking athletes.

Breastfeeding Mothers Protected in Philadelphia: The City of Philadelphia has passed a law requiring employers to reasonably accommodate breastfeeding employees. This important piece of legislation gives the message to working mothers that they are valued in the workplace and that baseless attacks on reasonable arrangements will not be tolerated. As we discussed in July, states and cities are frequently taking the lead in fighting for workers’ rights. Pregnancy and breast-feeding in particular are gaining increasing visibility as areas where workers’ rights have traditionally lagged. Enshrining these protections protects families and promotes the participation of all willing workers in the workplace.

Interns Protected from Discrimination, Sexual Harassment: Interns in New York state now receive the same protections from unlawful discrimination and sexual harassment that regular employees enjoy. The law was passed after a federal court in New York dismissed a sexual harassment claim filed by an intern, concluding that New York state and city human rights laws protected only paid employees. Legislators were careful, however, to word the new and improved law to state that it did not create an employment relationship for the purposes of wage and hour law (another important question undergoing vigorous debate in the courts and the public sphere!). Internships are an important way for millions of people to gain needed job experience, and interns deserve the same basic dignity and protections as paid employees.

Sex-Neutral Incidents Can Support Hostile Work Environment Claims: The Second Circuit Court of Appeals ruled in Moll v. Telesector Resources Group that a court should take into account “sex-neutral incidents” – incidents that, in themselves, are not “sexually offensive – when examining a plaintiff’s claim for sexual harassment/hostile work environment. The plaintiff alleged that her boss left her inappropriate notes, asked her repeatedly to come to his hotel room, refused to assess her for promotion, excluded her from work-related social events and refused to permit her to occasionally work from home even though her male colleagues did so. The Court of Appeals concluded that the lower court should have considered all of plaintiff’s allegations of mistreatment, not only those that were sexually offensive, since a reasonable fact-finder could conclude that even facially sex-neutral incidents were nevertheless motivated by sex discrimination. Although the Court of Appeals did not rule on the merits of the plaintiff’s claim, this ruling is significant in its recognition that even incidents that are not blatantly based on harassment or discrimination can nevertheless be motivated by unlawful discrimination and may collectively contribute to a hostile work environment.