On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC (d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz. The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker. The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers. Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and Michael Grenert of Liddle & Robinson L.L.P.
Joe’s Crab Shack Managers Overcome Class Hurdles to Move Forward with Class Certification of Misclassification Case
A helpful overview from JDSupra that notes how the court addressed common class certification disputes issues is available here (excerpt below):
Although some of the plaintiffs could not accurately account for the exact amount of time spent performing non-exempt tasks, the court noted that “courts in overtime exemption cases must proceed through an analysis of the employer’s realistic expectations and classification of tasks rather than asking the employee to identify in retrospect whether, at a particular time, he or she was engaged in an exempt or nonexempt tasks.” It stated that “[b]y refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claims.” (link)
Civil Rights for Intelligent Animals . . . ?
Maybe so said attorney Steven Wise to a New York appellate court:
"A state appeals court will decide in coming weeks whether chimpanzees are entitled to "legal personhood" in a case that could lead to expanded rights for animals such as gorillas, elephants and dolphins, according to the lawyer advocating for a 26-year-old chimp named Tommy.
Attorney Steven Wise argued before a five-member mid-level appeals court Wednesday on behalf of Tommy, who lives alone in a cage in upstate Fulton County. A trial-level judge has refused a request by Wise and his Nonhuman Rights Project to have Tommy released to join other chimps at a Florida sanctuary that mimics their natural habitat.
Wise argues that animals with human qualities, such as chimps, deserve basic rights, including freedom from imprisonment. He's also seeking the release of three other chimps in New York and said he plans similar cases in other states. If he succeeds, he said he will seek personhood for other species with human qualities, which he defines as self-determination and autonomy." (link)
Perhaps intelligent animals should have some basic rights above those we give to far less intelligent animals like cows - actually probably so - but do intelligent animals already inherently have those rights absent a statute to that effect?
Not sure I'm convinced - but it's an intriguing non-frivolous question.
SDNY Courts Converging Around Liability Only Class Certification?
From David M. McMillan:
In what appears to be an increasingly common practice since the Supreme Court decided Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Southern District of New York recently certified a class as to liability, but rejected certification as to damages. Fort Worth Employees' Retirement Fund v. J.P. Morgan Chase & Co., — F.R.D. —-, 2014 WL 4840752, 09-3701 (JPO) (S.D.N.Y. Sep. 30, 2014). Taking a cue from Comcast, the Court held that the predominance requirement for class certification—that "questions of law or fact common to class members predominate over any questions affecting only individual members," see Fed. R. Civ. P. 23(b)(3)—requires plaintiffs to specify a damages methodology that can be utilized for the entire class. The plaintiffs, investors in certain mortgage-backed securities issued by JP Morgan Chase & Co. and related entities (collectively "JPM"), failed to adequately specify the methodology they planned to use to value the securities at issue. The Court therefore rejected certification as to damages and placed responsibility on each class member to prove damages on a member-by-member basis. The Court, however, found that the plaintiffs proved predominance as to liability and certified the class for that limited purpose. (continue reading).
Detroit Foreclosure Mosaic
At least there is something (well really just this one thing) positive resulting from the foreclosure crisis in Detroit - from the NY Times:
This mosaic, created with images from Google Maps Street View, shows one of the many enormous challenges facing Detroit as it tries to climb out of debt. As of January, the owners of these properties collectively owed the county more than $328 million in unpaid taxes and fees. Since then, some have paid their debts, entered in payment plans or qualified for assistance. But 26,038 properties, shown with [many] in jeopardy, and many are headed for public auction.
Here it is -- a mosaic of despair ....
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.
Overview: Light Duty & the ADA, FMLA, and PDA
An informative overview of the intersection of light duty work and the ADA, FMLA, and PDA from the FMLA Insights Blog: Don't Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices.
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)
Is Television the Next Battleground for Employment Discrimination Litigation?
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)
