Russell v. Citigroup, Inc. (6th Cir., April 4, 2014)
In this case the company tried to retroactively apply a newly-signed arbitration agreement to a case after the case had already been filed. Not surprisingly, the court rejected this novel temporal approach:
From 2004 to 2009, Russell worked at Citicorp’s Florence, Kentucky call center. He had signed a standard contract to arbitrate any disputes with the company. The agreement covered individual claims but not class actions.
In 2012, Russell filed a class action against the company, claiming that the company did not pay employees for time spent logging into and out of their computers at the beginning and end of each workday. Citicorp did not seek arbitration.
In 2012, with the lawsuit still in progress, Russell applied to work again at Citicorp’s call center and was rehired. Citicorp had updated its arbitration contract to cover class claims as well as individual ones. Russell signed the new contract and began work in the call center. Russell did not consult with his lawyers before signing the new contract.About a month later, Citicorp’s outside attorneys learned that he had been rehired and sought to compel Russell to arbitrate the class action, which by then had begun discovery.
The district court held that the new arbitration agreement did not cover lawsuits commenced before the agreement was signed. The Sixth Circuit affirmed.
Pitre Inc., an Albuquerque car dealership, has agreed to settle a same-sex sexual harassment and retaliation lawsuit filed on behalf of over 50 workers for over $2 million dollars.
In the lawsuit, the employees charged a former lot manager, under the direction of the dealership’s general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. They also alleged that the manager retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of the Company raised such concern that a U.S. District Court judge granted a preliminary injunction prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants. In case you were wondering — Yes, such an injunction is pretty unusual.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, which includes harassment of individuals of the same sex. When an employer disciplines, terminates, or takes other punitive measures against an employee for objecting to workplace discrimination, the employer further violates Title VII’s anti-retaliation provision.
After a period of declaring unions in America all but dead, corporate America and their lawyers seem to be increasingly concerned lately that employees may come to their senses and begin to organize themselves to protect their interests in the workplace. Two excellent corporate-side employment lawyers have recently posted articles discussing some examples of the best methods of avoiding collective bargaining with employees and unionization:
So why are large corporations and employers of retail and service workers like Target, Wal-Mart, Starbucks, Whole Foods, etc. so opposed to collective bargaining? Simple. The reason is fear. These companies know that unions represent a sort of power for their workers that their workers will otherwise never have. That power translates to better working conditions and higher wages. That, they fear, may eat into a company’s profits. Profits over people – it’s just that simple.
But it shouldn’t be that way. Putting profits before people is short-sighted and hurts the economy. The essence of what labor unions do is to give workers a stronger voice so that they can get a fair share of the economic growth they help create. This has always been important to making the economy work for all Americans. One of the primary reasons why the great recession was worse than it should have been was that workers did not have the purchasing power to drive our consumer-based economy. In fact, even when times were relatively good, workers were getting squeezed. Income for the median working age household fell by about $2,000 between 2000 and 2007. That’s right, it FELL.
Union members in the United States earn significantly more than non-union workers. From 2004 to 2007, unionized workers’ wages were on average 11.3 percent higher than non-union workers with similar jobs. That means that, all else equal, workers that join a union will earn 11.3 percent more than their otherwise identical non-union counterparts.
According to Henry Blodget, Editor-in-Chief of Business Insider magazine, many companies “have become so obsessed with generating near-term profits that they are paying their employees less, cutting capital investments, and under-investing in future growth.” This is bad for workers and, ultimately, bad for the entire economy. We live in a time of the highest corporate profits in history coupled with one of the highest unemployment rates in history. And we have the lowest wages in U.S. history as a percent of the total economy. It simply isn’t sustainable long-term.
We need to bring balance back to the U.S. economy by increasing the voice of employees in the workplace. The best way to do that is to support unionization.
Equal pay for women is in the spotlight of the Texas governor’s race, and figures from the Texas Attorney General’s office show most female assistant attorneys general make less on average than do men in the same job classification.
The San Antonio Express News has published an analysis of the agency’s pay statistics and found that of the top 20 highest-paid employees at the agency, just three are women. Of the 100 top positions, only 37 are held by women. The analysis indicates that the disparity cannot be accounted for simply by seeking a correlation between experience and pay among the assistant attorneys general.
Does this necessarily mean that the Attorney General is purposely discriminating against female lawyers in the agency? Possibly not. But it doesn served to shine a light on a problem the affects employers all across the country – that being systemic gender discrimination against women based on old ways of thinking about gender in the workplace.
What is the Equal Pay Act?
In 1963, Congress passed the Equal Pay Act (“EPA” or the “Act”) as an amendment to the Fair Labor Standards Act, to “prohibit discrimination on account of sex in the payment of wages by employers.” Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of “concern for the weaker bargaining position of women” to provide a remedy to discriminatory wage structures that reflect “an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman.” It should be noted, however, that the EPA protects both men and women.
The EPA prohibits “employer[s] … [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]” To establish a case under the EPA, an employee must show that:
different wages are paid to employees of the opposite sex;
the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
the jobs are performed under similar working conditions.
The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions.
It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements noted above, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.
What to do if you believe you have been paid less due to your sex / gender:
An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.
Important: If you believe that you are or have been discriminated against on the basis of your gender, you should consult an employment attorney immediately. The EPA contains a rigid two-year look back period. Any claim based on wages beyond that period may be lost so it is important that you file as soon as possible.
A story out this week emphasizes the importance of complying with confidentiality language found in your settlement agreement. A Florida teenager’s ill-advised Facebook post has cost her father the $150,000 he had won in a legal settlement.
In this case a daughter bragged on her Facebook page a few days after her father reached a settlement in his age discrimination suit against his former employer. She posted “Mama and Papa Snay won the case against Gulliver,” Snay wrote to her 1,200 Facebook friends. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
“Gulliver” refers to Gulliver Preparatory School, a Miami-area academy where her father was headmaster until officials decided in 2010 not to renew his contract. Snay, now 69, claimed Gulliver was discriminating against him. The parties settled in November 2011. The school agreed to pay Snay $150,000.00 to settle the case. As is the case in many settlement agreements, this one included a confidentiality agreement that required Snay to keep the deal’s terms private and not tell anyone of its existence. Snay, however, told his daughter immediately, saying he had settled and was pleased. He said in a later deposition that he felt he needed to tell her because she knew the case was in mediation and she had suffered “psychological scars” from her student days at the school.
His daughter, in turn, took to Facebook. The post was seen by current Gulliver students and alumni. The school’s lawyers heard about it. Four days after the settlement was reached they told the father the deal was off. Snay attempted to enforce the settlement in court but the court refused, stating “Snay violated the agreement by doing exactly what he had promised not to do,” the judge wrote. “His daughter then did precisely what the confidentiality agreement was designed to prevent.”
Confidentially agreements are an important part of most settlement agreements. You don’t have to agree to one but if you do, you better abide by it. Make sure you visit with your lawyer to understand exactly what your settlement agreement says so you know what you can and, perhaps more importantly, what you can’t say about your settlement.
Workers in Volkswagen’s Chattanooga, Tennessee plant rejected unionization by the UAW last week. The vote was surprising given that both the company and a majority of the plant’s workers had expressed support for the union in the days leading up to the vote.
The main reason for the last minute turn of the tide appears to have been dirty tricks and threats made by Republican politicians, including U.S. Senator Bob Corker. VW itself did not oppose the union and appeared to be willing to simply recognize the union based on a “card check” (think of it as an informal election) in which the majority or workers indicated support for the move. German companies work much more closely with their workers’ unions in Germany.
Unfortunately here in the U.S. politicians couldn’t allow for the unionization of a plant even if BOTH the workers AND the company wanted the arrangement. In a massive campaign against the union leading up to the vote, Republican politicians threatened to withhold further tax incentives if the plant organized or if VW voluntarily recognized the union. Meanwhile D.C. conservative activist Grover Norquist and other outside groups placed anti-union billboards all over town and churned out UAW-bashing newspaper articles.
Then, on the first day of voting, U.S. Senator Bob Corker openly threatened that Volkswagen would expand its Tennessee plant only if workers voted against their own interests and rejected unionization at the facility. Corker’s statements appear to have been false as VW had openly welcomed the union. However, due to the speech protections given to senators in the U.S., there is likely no action that can be taken against the senator’s knowingly lying to defeat the vote.
The threats and intimidation apparently worked. Enough workers changed their previous votes and the union election failed 712 to 626. It will be another year (and in reality will likely be much longer) before any efforts to unionize the plant can begin again. In the meantime, plant workers can continue to enjoy the lower wages, substandard benefit packages, and lack of job protection for which non-union manufacturing plants in the U.S. are famous.
There has been much talk, full of sound and fury, signifying little this past week as many on both sides of the political discourse have tried to digest and then spin a recent report from the Congressional Budget Office attempting to project the possible effect of the Affordable Care Act on the country’s workforce. According to the projection, by 2024 the Affordable Care Act will reduce full time-equivalent employment by about 2.5 million workers, compared to what it would be if the law hadn’t gone into effect.
Putting aside the fact that 10-year projections of this nature tend to be just about worthless (This latest projection is about triple what the CBO estimated when it first scored the law in 2010), the fact that detaching the availability of health insurance from a requirement of full-time employment with an employer that can provide a group plan will lead to a decrease in such employment relationships is hardly surprising. It is also not necessarily a bad thing.
Some of my fellow employment lawyers on the employer-side of the fence seem to think that anyone who is not trapped in a full-time position that they would likely not choose but for their need for group health coverage is a worthless drain on society. I think this is a little cynical and frankly a little silly. Americans already work more hours than workers in most wealthy nations. The truth of the matter is that easy availability of comprehensive, subsidized health plans will make it easier for people to retire before age 65, quit full-time jobs to start a business of their own, or shift to part-time work and spend more time raising children or attending school.
We all know someone who is stuck in a terrible low-wage job because it is the only way for them to obtain health coverage for a pre-existing condition. The ACA will serve to remedy this type of situation. The ACA will kill jobs in the same way that Social Security kills jobs. By making it easier for people in certain circumstances to get by without a full-time job or to take a job or start a business that does not provide a group health plan.
Employers and the labor market benefit from this de-linking as well. Already, statistics show health care inflation dropping for the first time in just about forever. De-linking health insurance from employment should lead to an increase in employers’ ability to hire. At the same time, the decrease in unemployment that will result from some Americans choosing to work less might lead to modest pressure on low-income wages, which haven’t even kept pace with inflation over the last decade.
All in all, the CBO report (if it turns out to be remotely accurate) should not be that surprising and should not be viewed as a terrible thing.
An audience member at a seminar at which I recently spoke asked “Is it really important to hire a board certified employment lawyer for an employment-related case?” The answer, in my opinion, is yes.
It is certainly true that any lawyer who has passed the bar and is in good standing can legally represent you in an employment-related case. Many attorneys who primarily handle personal injury or other types of cases will also agree to take on wrongful termination, sexual harassment, or other types of employment cases.
However, just because a lawyer will agree to take your case does not, in and of itself, indicate that the lawyer has the specialized knowledge needed to do the absolute best job of representing a client in an employment-related legal matter. Employment law is highly specialized, largely controlled by statute, and full of short limitations time periods and other procedural issues that a practitioner must be aware of in order to fully protect his or her client’s rights.
What does “Board Certified” mean?
Board Certification is a voluntary designation program for attorneys. Initial certification is valid for a period of five years. To remain certified, an attorney must apply for recertification every five years and meet substantial involvement, peer review and continuing legal education requirements for the specialty area.
To become Board Certified in a specialty area, an attorney must have:
Been licensed to practice law for at least five years;
Devoted a required percentage of practice to a specialty area for at least three years;
Handled a wide variety of matters in the area to demonstrate experience and involvement;
Attended continuing education seminars regularly to keep legal training up to date;
Been evaluated by fellow lawyers and judges;
Passed a 6-hour written examination.
According to the Texas Board of Legal Specialization:
There are more than 70,000 attorneys licensed to practice in Texas. Only 7,000 are Board Certified.
Board Certified lawyers earn the right to publicly represent themselves as a specialist in a select area of the law. In fact, they are the only attorneys allowed by the State Bar of Texas to do so. This designation sets them apart as being an attorney with the highest, public commitment to excellence in their area of law.
In short, Board Certification is one way to find a lawyer who has devoted a great deal of time and effort developing skills and knowledge needed to effectively represent clients in that particular area of the law.
“Five score years ago, a great American, in whose symbolic shadow we stand signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.But one hundred years later, we must face the tragic fact that the Negro is still not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity.
One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the securi
ty of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now.
This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God’s children. Now is the time to lift our nation from the quicksand’s of racial injustice to the solid rock of brotherhood.It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.We must forever conduct our struggle on the high plane of dignity and discipline. we must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We cannot walk alone.
And as we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “When will you be satisfied?” we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at a table of brotherhood.I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.I have a dream today.I have a dream that one day the state of Alabama, whose governor’s lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.I have a dream today.I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.This is our hope. This is the faith with which I return to the South. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”And if America is to be a great nation this must become true.
So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!Let freedom ring from the snowcapped Rockies of Colorado!Let freedom ring from the curvaceous peaks of California!But not only that; let freedom ring from Stone Mountain of Georgia! Let freedom ring from Lookout Mountain of Tennessee!Let freedom ring from every hill and every molehill of Mississippi. From every mountainside, let freedom ring.When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual,“Free at last! free at last! thank God Almighty, we are free at last!”
Over the last few years, the Texas Supreme Court has issued several rulings making noncompete agreements more enforceable in Texas than they have been for many many years. But with an increase in the general enforceability of such agreements has come an increased attention to whether the agreements are reasonable in geographic, temporal and subject matter scope.
The increase in litigation on the the issue of scope has led many employers to learn the unhappy fact that if they seek to enforce an overly broad agreement against an employee, the Court may reform the noncompete to more reasonable restrictions and then award the employee his or her attorneys’ fees incurred at the end of the litigation. This is especially true if the employer has crafted a noncompete that is obviously overly broad from the beginning. Sentinel Integrity Solutions, Inc. v. Mistras Group, Inc. is just such a case.
In Sentinel, there was a good deal of evidence at trial suggesting that the employer knew that the noncompete agreement it required its employees to sign was overly broad with respect to the scope of activity to be restrained. Also, there was evidence that the employer attempted to enforce the noncompete agreement to an unreasonable extent. After a jury a full jury trial, the trial court assessed $750,000 in attorneys’ fees against the employer.
This situation is more common than one might think. For years employers have forced employees to sign stock noncompete agreements that contain incredibly broad language and geographic constraints that would effectively prevent an employee from working anywhere in the industry for years. In the past these provisions were largely ignored because the courts were more concerned with general issues of enforceability. Now that such issues have largely been mooted, however, scope is back in play. And, an employer that requires its employees to sign unreasonable noncompete agreements and tries to enforce it can face some serious liability, as the employer in Sentinel found out the hard way.