Aunt Jemima No Longer Smiling

The heirs of Anna S. Harrington, the woman portrayed as Aunt Jemima on Aunt Jemima pancakes products for approximately 80 years, have filed a class action alleging Quaker Oates intentionally withheld royalties associated with the use of her likeness:

"In their suit, D.W. Hunter and Larnell Evans say Quaker Oats representatives discovered their great-grandmother, Anna S. Harrington, making pancakes at the New York State Fair in 1935.
Harrington portrayed the character in commercials and other public appearances for 15 years.
The suit says Quaker Oats used Harrington's pancake recipes and trademarked her likeness as the character 'Aunt Jemima' in 1937.
The great-grandsons say Quaker Oats exploited Harrington with the intent of not paying royalties toward her estate after her death in 1955. They claim the companies conspired not to acknowledge Harrington's status as an employee of Quaker Oats by saying they could not find any employment records or images of her. But they say, Quaker Oats had her image deposited with the United States Patent and Trademark Office.
Harrington's family, according to the complaint, filed the suit after it was able to obtain a death certificate that listed Quaker Oats as Harrington's employer." (link).

The suit also alleges that Quaker Oates wrongfully took Harrington's pancake recipes and racially discriminated against her and her family.  Plaintiffs seek $2 billion in damages.

FMLA Joint Employer Doctrine May Cover Unaware Smaller Employers

A cautionary tale to smaller employers concerning FMLA coverage and compliance:

"On September 19, 2014, the 7th Circuit affirmed summary judgment in favor of an employee on the issue of FMLA coverage under the joint-employer doctrine.  Cuff v. Trans States Holdings, Inc., No. 13-1241 (7th Cir., 9-19-2014).  The Family and Medical Leave Act applies only to an employer that has at least 50 employees within 75 miles of the employee's work station.  Cuff was on the payroll of Trans States, which only had 33 employees.  However, Department of Labor Regulation 29 C.F.R. 825.106(a) provides that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively employ 50 or more workers.  In addition, DOL Regulation 29 C.F.R. 825.104(c) provides that 2 or more firms may be treated as a single employer when they operate a joint business.  The joint-employer doctrine applies when one person is employed jointly by two firms that otherwise have distinct labor forces.
* * *
The 7th Circuit held that Cuff was covered by the FMLA because he was jointly employed by Trans States and GoJet, who collectively employ 50 or more workers."  (link)

Massachusetts Passes Domestic Violence Leave Law for Employees

As the issue of domestic violence is brought to the forefront of national dialogue Massachusetts has acted:

"In the wake of the Ray and Janay Rice incident sweeping the news across the country, Massachusetts Governor Deval Patrick has enacted emergency legislation entitled “An Act relative to domestic violence.”  The new law is effective immediately and mandates that all employers with 50 or more employees permit an employee to take up to 15 days of leave from work in any 12-month period if the employee, or a family member (defined below) of the employee, is a victim of abusive behavior and the employee is using the leave from work to:
  • Seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or family member of the employee; and
  • The employee is not the perpetrator of the abusive behavior against such employee’s family member."  (link)

Second State To Guarantee Paid Sick Time - Just 48 to Go ...

On August 30, 2014, California became the second state to guarantee sick time.  While, likely a surprise to most people, although federal law provides some protections for at least unpaid medical leave, at least after employees working for certain employers have been on the job for a year (FMLA), there is no federal law broadly guaranteeing paid sick days -- not even just one. 

Some local jurisdictions like NYC have passed local laws.  But, absent local legislative action, there is an enormous gaping hole in protections for sick workers.

Right now -- you're thinking about the fact that you do have sick days at work -- that's great news. The bad news is that those sick days are likely merely your employer's disrcretionary policy and are not mandated under federal law -- which I'm sure you think they should be.

Here is an overview of the new California law from the Labor and Employment Law Blog:

"The new law is called the 'Healthy Workplaces, Healthy Families Act.'  Beginning on July 1, 2015, both public and private employers (of any size) will be required to provide eligible employees with paid sick leave 'at the rate of not less than one hour per every 30 hours worked.'  Eligible employees are those employees who have worked 30 or more days within a year after their date of hire.  Under the new law, exempt employees are deemed to work a 40 hour workweek.  Employees are to be compensated at the same wage as the employee normally earns during regular work hours.  The rate of pay shall be the employee’s hourly wage.  If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee’s total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
There are a few exceptions in which employers are not required to offer the new paid sick leave benefit and they relate mainly to employees who are covered under a collective bargaining agreement, or who work in the construction industry, the home healthcare industry, or the airline industry." (link)

An in-depth overview of the new California law is available here.

Based on the experience of Connecticut, the only other state to pass a similar state-wide law, concerns raised about the California law are unlikely to be realized:

"California joins Connecticut, the first state to guarantee its residents have paid sick leave.  If that state’s experience is a guide, the California Chamber of Commerce, which called the state’s bill a 'job killer,' should have nothing to worry about.  A year and a half after Connecticut’s law took effect, most employers said the costs had been negligible or non-existent, abuse hadn’t cropped up, and many actually saw benefits.  More than three-quarters support the law, with nearly 40 percent saying they’re very supportive." (link)

Wait -- "more than three-quarters support the law?" Sounds like supporting the rights of workers to take a paid sick day might even attract votes to supportive legislators.

Just 48 states to go . . . including New York.

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Liberalized Medical Marijuana Laws Clash With Employer Policies -- Implicating Disability Rights

As covered by the New York Times:

"[M]arijuana’s recent strides toward the legal and cultural mainstream are running aground at the office.  Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies.  The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it." (link)

During July New York passed a medical marijuana law permitting New Yorkers suffering from a narrow list of conditions to obtain marijuana for medical treatment.

This development in turn sets up a future series of conflicts between employers and at least some state and/or local disability discrimination laws, which may require reasonable accommodations for people with disabilities -- the people many of the medical marijuana laws are targeted to assist.

New York is no exception.  Indeed, it appears ripe for this conflict because of the state law's definition of those permitted to use medical marijuana as "disabled" within the meaning of New York disability discrimination law:

"The New York law specifically classifies individuals prescribed medical marijuana as 'disabled.'  Accordingly, employers may need to provide reasonable accommodation for medical marijuana users.  While courts have not yet addressed the issue of what constitutes a 'reasonable accommodation' for medical marijuana use, one suggestion is relaxing an employer's drug policy to permit the employee's medical marijuana use. Whether or not such 'accommodation' is reasonable will depend on the employee's specific job.  While it is low cost to the employer, if the side effects of marijuana have a negative impact on the employee's job, as could be the case of truck drivers or machine operators, such accommodation may not be reasonable."  (link)

Advocates for reasonable accommodations regarding medical marijuana use with respect to drug policies are in no small part assisted by increasing voices in support of the positive medical effects of marijuana -including Dr. Sanja Gupta. 

Dr. Gupta recently noted he is "doubling down on medical marijuana;"

"I have met with hundreds of patients, dozens of scientists and the curious majority who simply want a deeper understanding of this ancient plant. I have sat in labs and personally analyzed the molecules in marijuana that have such potential but are also a source of intense controversy. I have seen those molecules turned into medicine that has quelled epilepsy in a child and pain in a grown adult. I've seen it help a woman at the peak of her life to overcome the ravages of multiple sclerosis.

I am more convinced than ever that it is irresponsible to not provide the best care we can, care that often may involve marijuana.

I am not backing down on medical marijuana; I am doubling down." (link)

This will certainly be one of the more interesting employment law issues over the course of the next few years, particularly given the lack of movement with respect to the federal prohibition on the use of marijuana.

Former Urban Outfitters Clerk Sues For Co.'s Indifference to Customers' Sexual Harassment

From the NY Daily News:

"Tatiana Swiderski, 25, said her bosses at the Fifth Avenue store turned a blind eye [to] the harassment — refusing to call cops on the pervy patrons and holing her away in the stock room for complaining.
'They made it their mission to make me feel invalidated,' Swiderski told the Daily News. 'They tried to make me feel like I was a crazy over-reactor.'"
Now she's suing the chain for sexual harassment and retaliation."  (link)

Some of the details:

"The sexual assault came just two weeks after security told her a man had been following her and another employee with a video camera and shooting up their skirts as they went up the stairs. While the guards made him erase the video, they let him go and refused to call the police or tell her his name so she could do so. Her suit even claims that a guard mocked her.
After she complained to management, a security guard allegedly told her to “stop being a stupid bitch.” She also claims that a guard began patting her down as she left work, something she felt was sexually inappropriate and not done to other employees."  (link)

Not only are the details pretty horrifying but it appears to be a potentially industry-wide issue:

"A 2002 study in Canada found that harassment for these workers doesn’t just come from coworkers, but from customers, as it did for Swiderski, which constitutes a “significant problem.” A majority of women in retail said they had been sexually harassed by customers on the job, but given that companies are focused on satisfying the customer, women face constraints in how they can handle it and many are reluctant to bring it up."  (link)

According to the EEOC, it is a clear violation of federal discrimination law for an employer to take no action in response to harassment of employees by customers -- where it has notice of the conduct:

"The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action."  (link)

The above response is, to put it lightly, clearly inadequate.

I was also struck by a throw away line in the middle of the NY Daily News. Interestingly -  the article notes that when Swiderski began working:

"She said there was an early sign of trouble — a co-worker told her she'd only been hired because she's 'tall, pretty, thin and white.'"  (link)

If that is accurate (which it may or may not be) Urban Outfitters may be headed for a repeat of  a large racial discrimination case brought by LDF regarding hiring for "the American look" at Abercrombie and Fitch:

"Th[at suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.
* * *
In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its work force and to prevent discrimination based on race or gender."  (link)

Of course this is just the hearsay statement of a co-worker.  But, if true, Urban Outfitters (or at least this store location) may also soon be facing suit on the race discrimination front.

It will be interesting to follow this case as it develops.



Obama Signs Executive Order Prohibiting LGBT Discrimination By Federal Contractors

This is obviously long overdue - but thankfully finally happening:

"The executive order has two parts: It makes it illegal to fire or harass employees of federal contractors based on their sexual orientation or gender identity, and it explicitly bans discrimination against transgender employees of the federal government. The part targeting federal contractors affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce.
"America's federal contracts should not subsidize discrimination against the American people," Obama said during remarks at the White House just before signing the order. "I'm going to do what I can with the authority I have to act."
The provision affecting federal employees takes effect immediately, while employees of federal contractors will have their new protections in place by early next year, according to senior administration officials" (link)

President Obama signing the order yesterday:

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