2015 Employment Law Issues Tournament: Second Round Results and Recaps
If you thought the Round of 64 was wild, then wait until you see what happened during the second round. Let’s just say that some shocking upsets left many a bracket busted wide open.
Carl, the head of operations at a well-known micro-macro brewery wrote to us after round two to say that he almost fell off a barrel of their famed Williamsburg Long-Bearded Pilsner after No. 8 Wellness Programs defeated the No. 1 seed Disability Discrimination on a buzzer beater. And an excited Lisa, the owner of an inactivity tracker bracelet company, said that No. 13 Accrued But Unused PTO’s win over heavily-favored No. 4 Minimum Wage, while absolutely making no sense, put her squarely in front of her colleagues in the office pool – the winner of which, coincidentally, gets a free paid day off.
But the best comment we received thus far was from Tim, a pastry chef at a bakery that features the first ever Sticky Hamamuffamonut Claw™ (which is illegal in 29 states and is comprised of a sticky bun, hamantashen, muffin, cinnamon roll, doughnut and bear claw). Tim said: “This is officially way out of control. The Mintz ELB Team has reached a level of nerdom few have surpassed. Kudos to you and the next round of Sticky Hamamuffamonut Claws™ are on the house. I will be calling you on Monday to arrange for an audit of my employment practices, which your tournament has made me realize I clearly need to revisit.”
We can now say two things with certainty: First, Tim’s Sticky Hamamuffamonut Claws™ are generally delicious, and second, it’s becoming harder and harder for us to figure out which employment law issue is the most important. But have no fear; we will follow through on our promise to answer that question as coverage of the 2015 Employment Law Issues Tournament continues below.
Per usual, let us first say the following:
Employers should pay careful attention to the workplace issues associated with March Madness. Here is our still-relevant post on this subject from last year: Does March Madness = Workplace Madness? Some Thoughts on the Legality of NCAA Bracket Pools, the Tournament’s Effect on the Workplace, and of course, a Rendition of One Shining Moment.
Okay, time for the Round of 32.
ROUND 2 RESULTS
Here are the full results from Round 2 with the winners in BOLD. You can find the updated bracket here.
Wage and Hour Region
IC Misclassification (1) v. Non-Solicitation Covenants (8) (recap below)
Wage Deductions (5) v. Accrued But Unused PTO (13)
Social Media Policies (3) v. At-Will Employment (6)
Hostile Work Environment (2) v. Quid Pro Quo Sexual Harassment (10) (recap below)
Discrimination Region
Overtime Pay (1) v. Performance Evaluations (9)
Pregnancy Accommodations (4) v. Bring Your Own Device Policies (12) (recap below)
Mental Disabilities (3) v. Arbitration Agreements (6)
Retaliation Claims (2) v. Paid Sick Leave (7)
Restrictive Covenant Region
Wage & Hour Collective Actions (1) v. Age Discrimination (8)
Reasonable Accommodations (5) v. Off-The-Clock Work (13) (recap below)
Exemption Misclassification (3) v. Gender Discrimination (6)
FMLA Leave (2) v. OSHA Whistleblowers (7)
Leave Management Region
Disability Discrimination (1) v. Wellness Programs (8)
Non-Competition Covenants (4) v. Anti-Discrimination/Harassment Training (12)
Collective/Class Action Waivers (3) v. Ban the Box (11) (recap below)
Wage & Hour Class Actions (2) v. Reductions in Force (10)
ROUND 2 RECAPS
These were the featured matchups from the round of 32:
Restrictive Covenant Region: Reasonable Accommodations (5) v. Off-The-Clock Work (13)
The Matchup:
An incredible matchup between two important issues. I am really excited about this one. You have the fifth seeded Ragin’ Reasonable Accommodations – a team that is stacked with fundamentally sound qualified individuals with disabilities and that imposes undue hardship on all of its opponents. After a slow start this season, which saw them plagued by injuries, they really turned things around when they realized that they could request accommodations from opposing squads. At almost every turn, their requests were approved, because just like in the workplace, most requests are actually easy and inexpensive to administer. For example, at one game this season, in which they prevailed, they asked if they could have an extra three minutes at half-time to allow their training staff to work on them a little longer. Only one team rejected one of their requests: to lower the RA’s rim to eight feet. That request, understandably, was plainly unreasonable – but the opposing team still evaluated it and discussed alternative accommodations, because had they failed to engage in the interactive process, they could have still been subject to a claim. The RA’s finished up the season strong after defeating their arch-nemesis, the Eastern University Essential Functions in their conference tournament. Then, they soundly defeated the Non-Disclosure Agreements in the first round of the 2015 ELIT and are now ready for their second round matchup against Off-the-Clock Work.
Off-the-Clock Work has traditionally enjoyed a lot of success on the court because of their activities off the court. This team can really run up the damages score when they can show that the other team knew or should have known that their players were running drills during hours outside of their regularly scheduled practices. And this has proved very easy, because the burden is really on the other team to prove a negative – that is, that their players did not actually practice when they say they did. But the Off-the-Clocks deserve their low ranking this year. Teams have finally figured out how to beat them – the answer, not surprisingly, is clock management! Opposing teams have started to institute policies and procedures to ensure against this happening, including by, among things, having clear handbook policies regarding timekeeping and prohibiting off-the-clock work, including on mobile devices; extending their complaint processes and procedures to encourage employees to complain when managers are making them work off-the-clock; training managers and employees about proper timekeeping practices and their off-the-clock policies; and threatening and actually disciplining employees caught working off the clock.
The Result:
Despite a highly-anticipated matchup, this game was no contest. The Reasonable Accommodations had clearly scouted the Off-the-Clocks beforehand. The RAs had all of the above-mentioned safeguards in place and they were able to show the absence of any off-the-clock practicing by their players and won this game in a cakewalk. The Off-the-Clocks simply could not stop the Reasonable Accommodations from performing the essential functions of this basketball game: dribbling, passing and shooting, which resulted in basket after basket. The Reasonable Accommodations will now move on to play the No. 1 seed Wage & Hour Collective Actions in the Sweet Sixteen.
Wage and Hour Region: Hostile Work Environment (2) v. Quid Pro Quo Sexual Harassment (10)
The Matchup:
Perennial contender No. 2 Hostile Work Environment has been a mainstay in the tournament. Led by the All-American Power Forward Duo of Faragher and Ellerth, it’s almost impossible to beat them in the post. And it’s not just the tangibles, it’s the intangibles that make this team so deadly – intangible employment actions that is. They capped off the regular season championship in the Big Discrimination Conference with a spectacular road win in New Jersey. As we recently reported, the New Jersey Supreme Court acknowledged a limitation to vicarious liability for employers in hostile work environment claims while also expanding the definition of supervisor. This was just a microcosm of their very successful season. And if you think they are hostile now, wait until you see them tonight against the QPQs!
Team Quid Pro Quo Sexual Harassment surprised many by making the tournament (they were frequently cited on the “last four out” list), but still made this year’s cut. And we know why: this program still remains relevant in the everyday working environment even though they aren’t putting up the wins they used to. Their season started out on a sour note after QPQ’s coach was summarily dismissed after he threatened QPQ’s best player’s playing time if he didn’t shave points. But despite that scandal, they quickly hired a Sean Miller-like coaching magician and later prevailed in Big Discrimination Conference Tournament with a tremendous come-from-behind victory at First Circuit Fieldhouse against the Pacific State University Prima Facies. There, the court found that an employer can be held liable for QPQ harassment based on the discriminatory actions of a non-supervisory employee where the employer knew or should have known of the employee’s discriminatory actions. Just a shocking result that propelled them into the Big Dance.
The Result
This matchup between the fiercest of rivals turned into a terrific game. We are talking Georgetown v. St. Johns, Duke v. UNC, Louisville v. Kentucky, Southwest Missouri A&M Technical College v. Cornell. But the HoWEs broke away early after the QPQs players continually complained to the refs about dirty play, and the refs failed to do anything about it despite a rule book which required otherwise. Their frustration evident, the QPQs never got into a good rhythm. And in light of last week’s news regarding the resignation of Ohio State University’s hockey coach following harassment allegations arising from sexual innuendos to team players, it should come as no surprise that Team HoWE will be advancing to the Sweet Sixteen (wait, Division I student-athletes are “employees” right? Or is that an issue for next year’s bracket?)
Discrimination Region: Pregnancy Accommodations (4) v. Bring Your Own Device Policies (12)
By Frank Hupfl
The Matchup
All eyes are on Team Bring Your Own Devices after their surprising upset over heavy favorite Joint Employers, which left analysts and commentators speechless—except our very own Jen Rubin and Gauri Punjabi, who covered the ins and outs of team BYOD in a recent seminar. Will Team BYOD repeat their stellar first round performance against number four seed team Pregnancy Accommodation? First, let’s look at team BYOD’s strengths: versatility, productivity and flexibility; these guys can get the job done at home or on the road. Now the weaknesses: a lack of awareness (we’re guessing that roughly 4 out of every 5 employees think a BYOD policy means Bring Your Own Drink to an office happy hour) and a lack of oversight (personal device use can compromise security and result in higher labor costs). Without leadership and effective monitoring to keep this team in check, a few bad apples could end up costing this program its season.
To say team Pregnancy Accommodation has had a big year is an understatement. Who can forget the extensive coverage we saw after the EEOC issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues in July 2014? And while we still await the Supreme Court’s decision in Young v. United Parcel Service, Pregnancy Accommodation looks to make that decision irrelevant as it stormed the county this year racking up road significant road wins with the passage of accommodation laws in Philly, Providence, Illinois, Delaware, Minnesota, West Virginia and most recently in D.C. After steamrolling past team Contractually Shortened Statute of Limitations in the first round, the message is clear: pay attention America, Pregnancy Accommodation demands your attention.
The Result:
No contest here: Pregnancy Accommodation continues its juggernaut run. BYODs did their best, but the PA’s wiped their devices clean without any notice from the opening quarter. When your program has been recognized on both a national and local scale; when they’re literally rewriting the book because of you, you know you’re a contender. We’d suggest that Overtime Pay put in the extra hours when practicing for its Sweet Sixteen matchup with the PAs next week.
Wage and Hour Region: IC Misclassification (1) v. Non-Solicitation Covenants (8)
By Brent Douglas
The Matchup
It usually takes 30 years for a college program to become elite. When I say “elite” you think Wage & Hour Class Actions and Sexual Harassment, right? However, in less than 10 years, the No. 1 seed Independent Contractor Misclassification has burst on the scene to drive employers and opponents crazy – sort of like Nolan Richardson’s famed 40-minutes of hell defense. Departments of Labor everywhere are creating task forces to stamp out misclassification and are recovering millions; workers are challenging these classifications in court every day. Even without establishing that the misclassification was willful, plaintiffs routinely recoup liquidated damages and attorney’s fees. Similarly situated employees are recruited into class actions, and business that one day were humming along nicely with hundreds – even thousands – of independent contractors in the field, the next day find themselves paying out million dollar settlements. And this is all happening in part because of a lack of clear, or possibly outdated, rules on what types of relationships can be treated as independent in this new economy. Most recently, the Northern District of California highlighted this issue in the Lyft driver misclassification case: “California law defines whether workers are employees or independent contractors, and there’s a test, but the test and classification system are woefully outdated . . . . It seems to me, as a matter of common sense, that Lyft drivers don’t fall into the traditional understanding of [the two classifications.] They seem to fall into a third category.” That court ultimately decided to let a jury decide.
No. 8 Non-Solicitation Covenants is no slouch either. They replaced their coach last year because he still used a rolodex in favor of a coach who could better spot offensive sets designed to solicit customers over social media. Indeed, many employers are now starting to address the intersection between social media and non-solicitation agreements more seriously. As longtime bookie and two-time office pool winner Jen Rubin told readers last year, employees are starting to face lawsuits for communicating with former customers over their social media accounts. In addition to a new coach, this team also started recruiting players all over the country – once relegated to the boring doldrums of executive and salesperson agreements, Non-Solicitation Covenants have now snuck into employment agreements across the corporate ladder, and in some cases, all the way down to the average Joes. The question remains however, will the Non-Solicitations be enforceable on game day? Let’s see whether that was the case against the IC Misclassifications.
The Result
The Independent Contractor Misclassifications continue to roll. The Non-Solicitation Covenants played their provisions out, but when it came down to it, they were plagued by foul trouble – time and time again they were called for overreaching, and the fact that they were playing in a California venue gave them virtually no chance of success. The ICs exercised direction and control over the Non-Solicitations nearly all game and ran away with the victory. There seems to be no slowing down of the IC Misclassification issue and now they head to Sweet Sixteen where they will face the tournament’s Cinderella story thus far, the Accrued But Unused PTOs.
Leave Management Region: Collective/Class Action Waivers (3) v. Ban The Box (11)
By George Patterson
The Matchup
Team Collective/Class Action Waivers (The Famed – C-CAWs!) is back with a vengeance this season after nimbly defeating its most serious challenger when the Supreme Court, in June 2014, declined to review the Eleventh Circuit’s decision holding that the FLSA does not bar arbitration agreements containing class action waivers. However, in July 2014, C-CAW suffered a stunning defeat in the Sixth Circuit when that court held that employees were permitted to join an FLSA collective action despite having signed separation agreements containing a waiver. It remains to be seen whether C-CAW can balance its strengths and weaknesses in this round — class action waivers are potentially valid when included in arbitration agreements, but potentially invalid when included in separation agreements. Which team will show up is anybody’s guess.
Meanwhile, Team “Ban the Box” appears to be on the rise lately, with Washington, D.C. recently joining the 13 states (and numerous cities and counties) with laws restricting an employer’s ability to inquire about a job candidate’s criminal history. Before conquering Washington, Ban the Box handily defeated New Jersey and appears poised to continue its winning streak, requiring employers to step up their games and revise their application forms and procedures where necessary. Known for its ridiculous rebounding skills and famed Box-and-1 defense, they are looking to upset the C-CAW’s and advance to their first Sweet Sixteen.
The Result
The No. 3 Collective/Class Action Waivers narrowly defeats No. 11 Ban the Box. In the post-game wrap up, most commentators agreed that Ban the Box’s decisive advantage as an issue of concern among small employers was simply insufficient to surmount the threat C-CAWs pose to larger companies. Although Ban the Box generally imposes fines for non-compliance and requires employers in covered regions to retrain hiring managers and update their job applications, the continued use of C-CAWs to prevent large numbers of employees from joining FLSA collective and state class actions coupled with lingering uncertainty about their enforcement in certain contexts ultimately won the day. The aggressive challenge from Ban the Box did not leave C-CAW completely unscathed, however, as the victor limps into the next round still dominant but appearing ever more vulnerable. They’ll need to be at their most enforceable if they are going to stand a chance against the No. 2 seeded Wage & Hour Class Actions. This game has Duke-Kentucky 1992 The Shot Game written all over it.
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Check back next week as we cover the Sweet Sixteen. In the meantime, enjoy the real games!