Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

The New York Times has an important story out this week reporting that an audit of the federal agency charged with enforcing minimum wage, overtime and many other labor laws is failing in that role, leaving millions of workers vulnerable.
In a report scheduled to be released Wednesday, the Government Accountability Office found that the agency, the Labor Department’s Wage and Hour Division, had mishandled 9 of the 10 cases brought by a team of undercover agents posing as aggrieved workers.

More from the report:

In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery, the G.A.O., the nonpartisan auditing arm of Congress, found.
When an undercover agent posing as a dishwasher called four times to complain about not being paid overtime for 19 weeks, the division’s office in Miami failed to return his calls for four months, and when it did, the report said, an official told him it would take 8 to 10 months to begin investigating his case.
“This investigation clearly shows that Labor has left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn,” the report said. “Unfortunately, far too often the result is unscrupulous employers’ taking advantage of our country’s low-wage workers.”
The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

More info:

• Link to the full story.

• Link to the Report and the Testimony Before the Committee on Education and Labor, House of Representatives
   

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In Paul v. Northrop Grumman Ship Systems, the Fifth Circuit Court of Appeals decides that a jury need not be bothered with a sexual harassment case because, after all, the supervisor only groped the the plaintiff once. 

Here is the Court's description of the relevant facts of the case (which for the purposes of this summary judgment motion must be accepted as true): 

Paul [the plaintiff] alleges that, on that day, Barattini walked up to her until his chest
was touching hers, thus “chesting up” to her breasts in a thirty-second
confrontation. As Paul attempted to separate herself, he stared at her in a
hostile and intimidating manner. Paul then walked away toward a narrow ship
passageway, but Barattini followed her.  He forced his way through the door
ahead of her, and, in doing so, placed his hand on her stomach and ran his arm
around her waist. As he squeezed past her in the passageway, he allegedly
“rubbed his pelvic region across [her] hips and buttocks.” According to Paul, the
incident lasted a total of approximately a minute and a half, and occurred in the
presence of another supervisor who did not intervene.

In response, the employer eventually terminated the supervisor in question.  But that didn't decide the case.  No, the Fifth Circuit decided that there was not question of fact here and that the harassment described was not egregious enough to be actionable as a single event. 

The applicable law states that “To affect a term, condition, or privilege of employment, the harassment must be sufficiently severe OR pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

Interestingly the Court properly cites to the rule and even emphasizes the fact that the "severe or pervasive" element of the test is disjunctive.  Thus harassment need not be pervasive or continuing if it is severe.  The court then gives this plaintiff the boot, holding that as a matter of law, the groping described above was not severe.  Really?

Remember now, the court was not deciding whether Ms. Paul should win at trial.  No, the Court decided that she didn't even have the right to have a trial because they personally didn't believe that one incident of groping and pelvic rubbing was severe. 

So what should we call this new legal standard?  Michael Maslanka calls it the "One-Free-Grope Rule."  He also calls it unfair.  

I agree.   

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TrueCredit.com, whose parent company is credit reporting agency TransUnion, reports that 16% of employers surveyed use a credit report as part of their regular screening process. That’s one in six companies. (The survey polled 214 people working in human resources. The margin of error is +/- 6.8 percentage points.)

This is especially damaging news as more Americans are looking for work and their credit scores may be taking a beating.

Read the story at the Wall Street Journal.

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A story on PBS' news magazine "Now" really gripped me last week.   A shocking statistic—teenagers are in more danger from sexual predators at their part time jobs than through the Internet.  According to one estimate, 200,000 teenagers are assaulted at the workplace each year. It's a vastly underreported phenomenon, but some brave young women are stepping up publicly to tell their stories.

As an employment lawyer that deals with sexual harassment issues every day and as a father of two daughters myself, I found this story to be incredibly important.  Many young women that go into the workplace for the first time simply are not properly prepared to deal with sexually harassing situations.  They don't have the experience to immediately know that conduct is over the line and illegal. 

Employers need to be especially vigilant in preventing and stopping sexual harassment in the workplace when they routinely hire young people.  This issue impacts hundreds of thousands of teenagers across the country—many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line.  While teenagers may be old enough to legally work, they are in many ways still children.  Companies that fail to make sure they are not falling prey to illegal sexual harassment at work from co-workers or supervisors will pay a heavy price at the courthouse.  At least they will if I have anything to say about it.

I encourage you to watch the entire story below. 

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