Pirate Apprenticeships

by Jay Marshall Wolman

How quaint the ways of Paradox!
At common sense she gaily mocks!
Though counting in the usual way,
Years twenty-one I’ve been alive.
Yet, reckoning by my natal day,
Yet, reckoning by my natal day,
I am a little boy of five!

-The Pirates of Penzance, “When You had Left Our Pirate Fold”

In Gilbert & Sullivan’s The Pirates of Penzance, Frederic was apprenticed to a pirate (his nursemaid misheard “pilot”) until he reached twenty-one.  He was born, however, on February 29, leap day.  Thus, when he had lived twenty-one years, he had only celebrated five and a quarter birthdays, and a quandary ensued as to whether Frederic was liberated from his apprenticeship.

Last night, the U.S. Department of Labor posted the following during the Oscars:

On average, women working full time earn about 79% of what men earn. #Oscars #EqualPay pic.twitter.com/6NlLwLmnWh

— US Labor Department (@USDOL) February 29, 2016

The problem, however, is that statistics without context are meaningless.  Simply looking at the numbers doesn’t tell the whole story.  By the same token, I can truthfully write that, on average, women suffer 75% of the number of fatal workplace injuries men do.  That is, relative to hours worked, women accounted for 43% of workplace fatalities and men 57%.  (43/57 is approximately 75%)  But that’s even accounting for hours worked.  Otherwise, women died at work only 9% as much as men.  If you want workplace equality, I guess a few lucky ladies will have to step up and volunteer to suffer some more workplace fatalities.

Except, of course, this doesn’t tell the whole picture.  Take a look at the deadliest jobs.  Men tend to choose those jobs disproportionately, thereby putting themselves in risk of greater harm.  But looking at the raw numbers alone doesn’t paint a full picture–if women chose those professions at equal numbers, worked equal hours, and took equal risks, then we’d probably have fatality equality.

The same issues arise in looking at the wage gap.  A 2009 US DOL commissioned study reported no significant gender-based wage gap when you control for profession, work history, hours worked, etc., that is, the choices made by workers.  Other studies do find some residual, unexplained gender gap–but that is what our focus should be on–fighting specific instances of discrimination.  Otherwise, if the DOL were truly serious about fighting the 79% figure, they should be advocating against women as caregivers, against women choosing to study the humanities, and against women who won’t work weekends, and training women to be orthodontists and petroleum engineers.  But, piloting the false 79% narrative is statistical piracy.

 

 

That’s It! You’re Fired! And no, this isn’t retaliation. Is it?

by Jay Marshall Wolman

The law and business are never as neat and clean as you might hope.  One of the toughest problems is when two things are happening around the same time and they start to implicate each other.

In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation.  The Fifth Circuit wrote:  “courts must not allow evidence of temporal correlation to serve as a substitute for science-based causation evidence.”  Huss v. Gayden, 571 F.3d 442, 459 (5th Cir.  2009)(relating to a claim that a medication caused cardiomyopathy).

In law, we also have a thing called a “temporal nexus”.  In Star Trek: Generations, a plot device was the “Nexus”, a temporal anomaly that permitted Captains Kirk and Picard to meet.  It is used, for example, to prove unlawful retaliation after engaging in protected activity.  See, e.g., Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008).  A good summary of that case is here.    How can law have both?  Not easily.

Let’s say your employee, Pat, suffers an injury at work while trying to avoid a supervisor’s sexual advances and then files a workers’ compensation claim, files an OSHA complaint, files an EEOC complaint over the harassment, and seeks a reasonable accommodation.  And, let’s say Pat’s attorney also gets the idea Pat was misclassified, so FLSA claims are brought as well.  Disciplining, including firing, an employee for doing any of those things will typically constitute unlawful retaliation.  However, during the course of your investigation, you determine that Pat’s supervisor, Jan, admitted to the conduct, but that it was because Jan saw an opportunity to take advantage of Pat because Pat was going to be fired for poor performance/breaking rules/a real legitimate cause and hoped to trade sex for keeping the job.

Pat deserves to be fired.  [So does Jan.]  How do you fire Pat now without facing a host of additional charges?

Document. Document. Document.  And cross your fingers.

If Pat truly was to be fired, there should be records of whatever Pat did or didn’t do.  If there aren’t, get witness statements.  If you can’t get those, perhaps rethink firing Pat until you have new cause:  it might not be desirable to keep Pat, knowing what you know, but it may be worth the risk.  Pat also knows the jig is up, so perhaps it won’t happen again (on the flip side, Pat may feel overconfident, extra-protected in light of the retaliation claim prospects).

If you don’t have proof, change your procedures to ensure you can prove such a thing going forward.  However, you should ensure you are complying with state law privacy requirements.

If you do have proof, there are two options:  fire Pat now, and invite a temporal nexus retaliation claim, or wait to fire Pat and argue that your delay is not evidence that Pat’s misconduct wasn’t really worthy of termination (while you invoke the maxim “post hoc ergo propter hoc”).  And make sure the reason for termination is given and make it known you can prove it.

What if the misconduct happens after the employee engages in protected activity?  As Zeidler Tool demonstrates, the best thing is to hope that the misconduct isn’t immediately after the protected activity occurs.  The more time passes, the less that the temporal nexus alone will be sufficient proof of retaliation.

And, of course, review your employment policies, insurance policies, and severance agreements, as those will certainly come to bear.

 

Why Are You Giving Fired Employees 21 Days to Consider Severance?

by Jay Marshall Wolman

Plenty of employers let go of an employee and give them some prefabricated separation/severance agreement, hoping to pay the now disgruntled former employee to go gentle into that goodnight.  They go online and download a model or ask their payroll company or just use what they used last time, without considering what’s in it.

From time to time, it is good to review and understand what is in these agreements.  Are you protecting against unknown workplace injury claims?  Are you ensuring that your employee won’t try to use your trade secrets against you?  Have you thought about references and nondisparagement?  Does it contain any language the EEOC might find problematic?

Beyond these issues, however, is one that pops up regularly:  the 21/7 (or, worse, 45/7) provision.  These provisions permit the former employee 21 days to review a separation agreement and, then, up to seven days to revoke it, even after they signed it.

Why on Earth would you want to drag out the process or let the employee back out?

The reason provisions like this have crept into separation agreements is because of overbroad releases.  Lawyers for employers want to make sure their client are protected from every conceivable claim an employee might bring.  So, one of the claims released is potential claims under the Age Discrimination in Employment Act (ADEA).  This act prohibits discrimination on the basis of age.  Unlike any other release, another Federal law, the Older Workers Benefit Protection Act (OWBPA), requires that, for the waiver to be effective, it must give 21 days to consider (45 days if part of a reduction in force) and 7 days to revoke.  But, the ADEA only applies to workers 40 and over.

So, when you want to fire the 23 year old, 35 year old, etc., why do you care if they waive claims under the ADEA?  They aren’t eligible to bring them in the first place.  Even with older workers, you might want to weigh the risks of an age claim (even an unsuccessful one) against the benefit of a quick resolution of the case.  For example, if you really think that a sexual harassment claim might be coming, not age, a quicker settlement helps you close the books, rather than letting the employee get second thoughts once he/she has been a few weeks out of work.  And careless negotiation over material terms may even  restart the 21 day clock with each new offer.

Just because it looks like a standard separation agreement doesn’t mean you should use it.

 

 

 

Spics Not Welcome

by Jay Marshall Wolman

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”.  (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.)  In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis.  I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna.  In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech:  a restaurant named “SPICS NOT WELCOME”.  Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace.  He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”.  Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law.  Judge Reyna’s example sets it up nicely.  Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark.  Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence.  So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory.  Which one stands?  And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same.  Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use?  Does trademark law trump civil rights law or vice versa?  Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps.  I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”.  But what if The Slants needs a new drummer–can a non-asian apply?  Would they feel harassed or precluded by the name?  It’ll be interesting to see how the law develops.

 

 

 

The Expansion of Regarded-As Discrimination

by Jay Wolman

The Americans with Disabilities Act protects three categories of individuals:  those presently disabled, those previously disabled, and those perceived to be disabled.  The latter is deemed “regarded as”; it does not require the member of the protected class to actually have or have had a physical or mental impairment that substantially limits a major life activity.  This is the only statute explicitly providing for “regarded as” protection.  However, caselaw seems to be filling the gaps in other laws.

In Macy v Holder, the EEOC explicitly found that discrimination against transgendered individuals is unlawful under Title VII, discussing the difference between sex and gender.  It also reviewed cases finding that failure to conform to gender stereotype is actionable discrimination.  Of note, Title VII does not speak to gender.

Recently, in EEOC v Abercrombie & Fitch, the Supreme Court ruled that where an employer perceived that an employee might require a religious accommodation, even if that perception is wrong, and discriminates against the employee on the basis of that perception, such discrimination is unlawful under Title VII.  In that case, as you may recall, a Muslim job applicant was perceived to potentially need a modification of the dress policy, even though the employer disavowed actual knowledge of the need.  For all intents and purposes, it is now deemed unlawful to discriminate on the basis of being regarded as having a specific religious belief if the motive is then to deny a reasonable accommodation to that belief.

Taking it a further step is the case of Rachel Dolezal who regards herself as African American.  Let’s assume she is actually Caucasian.  If she applies for a job and is denied because she is perceived to be African American, does she have a claim?  She has not been discriminated against on the basis of her actual race.  However, she might have a claim based on color, as Title VII does cover both “race” and “color”.  But, she could lose if the employer replaces her with another bronzed or tanned Caucasian–“color” might not be sufficient.  Yet, expanding on Macy and cases cited therein, Ms. Dolezal may be viewed as not conforming to racial stereotype.  Thus, a white person, regarded as being black, might have an actionable claim.  And, if so, others may have actionable claims for not being white, black, asian, hispanic, or native american “enough“.

The Future of Restrictive Covenants in Settlements and Severance

by Jay Wolman

The law is ever changing and what is common may, at some point, become unlawful (or already is without folks realizing it).  Recent developments in statutory law and enforcement actions in existing law have really made me think about all of those clauses that commonly appear in agreements with former employees, whether as part of a severance agreement or as a settlement of claims.

For instance, many of these agreements include a confidentiality clause that prohibits the former or soon-to-be former employee from disclosing how much is being received in severance or settlement.  Many of these agreements contain new restrictions on the disclosure of trade secrets (or reaffirmations of prior such covenants), including personnel practices and wage scales.  Many of these agreements contain nondisparagement clauses prohibiting the employee from saying anything that might be deemed as negative against the employer.  Each of these may be or may soon be unlawful.

As noted by Connecticut attorney Dan Schwartz, the Connecticut legislature just passed a bill that prohibits employers from taking action that would bar an employee from disclosing his/her wages or that of another employee.  As noted therein, “wages” means “means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation”.  Certainly, to the extent severance or settlement represents such compensation, the law could be read to make settlement/severance payments that were confidential now free and open.  It also would render inapplicable any trade secret clause that prohibits disclosure of a wage scale or other compensation basis.  In fact, in the situation where there was a confidential settlement, where the claimant employee settled for, perhaps, too little, and thus wanted confidentiality, another employee with knowledge might now be free to publicize the settlement amount.

But wait, you might ask, the law says “employee”, not “former employee”, so isn’t that inapposite?  Not necessarily.  In Robinson v. Shell Oil, that noted liberal Justice Clarence Thomas, writing for the Court, held that “employee” for Title VII purposes, included “former employee” in order to effectuate anti-retaliation policy.  Connecticut courts may follow this rationale, and other states may adopt similar legislation.

That said, some of these provisions may already be unlawful nationwide.  Last year, the EEOC challenged CVS severance provisions that, among others, included nondisparagement clauses and prohibitions on disclosing personnel information. CVS won, but on a technicality, not substantively.  And the NLRB has found success in the 5th Circuit in the Flex Frac Logistics case, where a ban on discussing “personnel information and documents” interfered with employee section 7 rights to discuss wages with coworkers and non-employees.  As a hypothetical, imagine that the former employee wants to get hired as a union organizer to organize the workforce of the employer–the nondisparagement, nondisclosure, confidentiality clauses of a severance or settlement would likely interfere with the ability to organize and would probably not survive.

These clauses are very common, but likely are not long for this world.  In the interim, employer counsel may want to rethink the standard severability clause.  Although employers are certainly keen on obtaining as much a release as possible, it may be time to reconsider whether the agreement should survive if the former employee can simply ignore these clauses.  This also might not bode well for former employees, as employers are apt to pay less in severance/settlement if the amount will be subject to public scrutiny.

When Disabilities Compete

Gentlemen, start your engines.  The city of Indianapolis is facing a lawsuit arising from competing disability claims.  In one corner, a person using a service dog to help them with their disability (while the typical scenario is the seeing-eye dog, apparently this is a paprika-sniffing dog).  In the other, a person with a dog allergy. 

The Americans with Disabilities Act (along, likely, with the Indiana state law equivalent), in a nutshell, requires employers to not discriminate against employees in the terms and conditions of their employment on the basis of a disability, so long as the employee can perform the essention functions of their job with or without reasonable accommodation.  Here is where it gets sticky.  Let’s first assume both employees in question are disabled within the meaning of the statute, which they likely are as they suffer from physical impairments (exposure to specific allergens) that substantially limit a major life activity (e.g. anaphylaxis preventing breathing in severe reactions).  Using a service dog or preventing dogs in the workplace are both likely reasonable accommodations.  Problem is, these are mutually exclusive accommodations.

Of course, there is an escape clause:  employers are not required to make an accommodation, even if reasonable, if it otherwise would impose an undue hardship.  Here, if the dog-allergy employee (DAE) is valuable, the employer could state that it would be an undue hardship to permit dogs as it would cause the loss of services of the DAE.  It is an affirmative defense that the employer would have to prove, though it may be conflated with the reasonableness of the paprika-allergy employee’s (PAE’s) request.  Also, employers are not required to provide the most reasonable accommodations, or the best reasonable accommodations, but rather one of the list of possible reasonable accommodations.

In the choice between DAE and PAE, the employer is free to choose DAE.  However, the inquiry does not end there.  The city apparently offered her only her job w/o dog or unpaid leave, neither of which are reasonable.  What about a transfer of position or location that could accommodate both?  Cities are usually sufficiently spread out to permit such an accommodation, so long as there is no conflict with civil service laws or collective bargaining agreements.  So, PAE may yet have a case; in the meantime, she should be eligible for unemployment benefits.

Also, who knew?  Paprika is everywhere!

First Amendment trumps Equal Opportunity Employment

Today, the Supreme Court in Hosanna-Tabor Church v. EEOC  issued a unanimous ruling on the First Amendment.  While this blog regularly celebrates the Freedom of Speech clause, the decision focuses primarily on the Free Exercise Clause and, to a lesser extent, the Establishment Clause.

In a nutshell:

1. Church had 2 types of teacher–lay and ministerial.
2. Ministerial teacher develops disability and takes leave of absense; replaced by lay teacher.
3. Church rules normally prioritize ministerial teachers, but when this teacher tries to get her job back, she is denied.
4. She becomes insubordinate and complains of an ADA violation.
5. She is terminated.
6. Teacher sues the church for retaliation against her for making an ADA claim.
7. Supreme Court says church wins.

Assuming there was blatant retaliation, the church still wins.  Why?  Because if the government were to tell a church they couldn’t fire a particular minister, that would prevent a church from freely deciding who gets to spread the gospel and who doesn’t.  To its extreme, though excepted specifically in Title VII, if the government had the power to dictate who a church could fire, it could prevent the Pope from defrocking an American Bishop who pronounces the Shahada and converts to Islam.  Basically, the 1st Amendment lets a religion freely decide who gets to be a minister, even if the reasons for hiring or firing are otherwise abhorrent to society.  If you don’t like it, you are free to change religions.  Or declare the person who did the firing a heretic and stone them.  Either way.

The Mark of Cain

Looks like Herman Cain is having a three way and not in the awesome sense.  A third woman has reportedly come forward with an allegation that Mr. Cain acted inappropriately toward her.  While I’m sure someday Mark might take a pro-sexual harassment case to the Supreme Court, arguing for the 1st Amendment right to be saucy, for now it is considered unlawful.

A side note to political candidates:  if you have a skeleton or three in your closet, reveal it yourself.  It will come out and you want to control the message.

Sexual harassment is a fascinating area of the law.  Sometimes, and rarely, it is blatant quid pro quo, the old casting couch.  Most times, it is something said that offended the listener, with some sexual or gender based content, that is deemed to have gone too far.  It’s like pornography, Rule 34 aside, you generally know it when you see it.  The hard fought cases are the ones where it is less clear.  According to the article:

she said Cain told her that he had confided to colleagues how attractive she was and invited her to his corporate apartment outside work.

Maybe that implied he wanted to sleep with her.  Maybe he was paying her a compliment and the invitation was platonic or business related.  President Obama is an attractive man and I’d welcome him to dinner at my house.  It doesn’t mean I want to become the First Lady by proxy.  As to the complaint Mr. Cain “settled” or reached an “agreement” on (synonyms to me, different to him), he states that it was about a comparison he made of a female coworker to the height of his wife.  If that was a pickup line, it is the worst ever; what woman gets turned on by a man who compares her to his wife?  I’m pretty sure that violates Ashley Madison’s own standards.  But, she may have taken it as such, and maybe that is what he intended.  There may be more to it, but he isn’t talking and she is bound by a confidentiality agreement.  Given both of these, and whatever the third is, you can see why these cases take a lot of lawyering.

As to the two that settled, it sounds like a year’s severance was given for one, and the other got something confidential.  A year’s severance is a pretty nice package; it’s not nuisance.  Confidentiality, on the other hand, does not imply a large settlement; some companies demand it even for nuisance suits.  They don’t want to set any form of precedent.

Some commenters have suggested she breach the confidentiality clause.  That is a huge no-no.  She’d likely have to repay the money, and the statute of limitations has run on filing a claim.  Plus, she’d probably owe attorneys’ fees.  And we’ve all seen how much it sucks to be hit with attorneys’ fees.  Others have suggested Mr. Cain is violating a non-disparagement clause.  My guess is: no.  Like confidentiality clauses, these are typically one sided.  An employee might get a neutral reference clause, but it usually isn’t as broad as the non-disparagement clause given to the employer.

My advice to Mr. Cain:  don’t blame Gov. Perry or Romney.  Air your dirty laundry now.  And watch what you say in the future.  I don’t want to hear any claim that “is” is ambiguous.

 

Cum dilectione hominum et odio vitiorum

By Jay Wolman

As the newest Satyriconista, with a practice of civil litigation and employment law in Boston, I thought I’d begin my first post with something high-brow.  Everything sounds better in Latin.  This was St. Augustine’s way of saying “Hate the player, not the game”.  Fast forward 1500 years and the message remains relevant.

David Madden, the now former mayor of Weymouth, Massachusetts, a small town about a half hour south of Boston, is the player.  The public sector pension system is the game.  He is getting a lot of flack for manipulating the system to his benefit.  Unlike most private sector pensions (union pensions excluded), public sector pension benefits in many jurisdictions, including Massachusetts, are not determined solely by how much the worker contributes to the system (defined contribution), but rather include benefits based on status or job classification (defined benefit).  [Yes, pensions are far more complicated than that, but nuance does not matter for this discussion.]  It seems that Mayor Madden would make an extra $30k per year by retiring as Fire Chief rather than Mayor.  So, Mayor Madden did some nifty maneuvering with the help of his pals:  He takes leave from the position of Mayor at the end of his second term, appointing his buddy, the Town Solicitor (i.e. the top lawyer) as interim Mayor.  The incumbent Fire Chief takes a voluntary demotion and the Solicitor (now Mayor) appoints Mayor Madden as Fire Chief.  Two days later, without showing up to work, Fire Chief Madden retires and puts in for the higher pension.  And the Town approves it (the State is fighting it, but has lost in Court so far).

Now, not every Mayor can get away with this–Mr. Madden actually was the Fire Chief before becoming Mayor.  He technically took a leave of absence, meaning he had this in the works for eight years.  And his buddies go along with it.  Sure, it looks bad, but this is the system that was set up and no laws appear to have been broken.  I actually feel bad for Mayor Madden; he has to pay legal fees to defend what the law allowed him to do (although I am a lawyer, it is a personal pet peeve that “loser pays” is not the American Rule.)  If my fellow Massachusetts residents don’t like what he did, they shouldn’t take it out against Mayor Madden, they should change the rules.  Hard to do when the legislators also game the system, but not impossible.

Here’s a thought for my first post as a Satyriconista:  eliminate pensions.  I’m not saying we renege on current promises, but I’ve wondered why we even have this complicated mess. (I know, they are the result of WWII wage freezes.)  As we are no longer at war with the Axis powers, I don’t know anyone who really thinks “Hey, boss, I know I’m doing all this hard work for you now, but I don’t want you to pay me for all of it now.  I think it would be great if you held on to a portion so you could give it to me in thirty years.  I trust you to handle it more than I trust myself.  And I know you’ll pay every penny.”

 

Dominatrix Lawyer Spanks Former Boss

Former New York state prosecutor Alisha Smith, who helped secure a $5 billion settlement from Bank of America, was unceremoniously suspended from her job because she spent her spare time as a dominatrix.

She was suspended from her job because the New York Post questioned whether she was paid for her nocturnal activities. The prosecutor’s office has a policy that prohibits outside employment without prior approval if the prosecutor earns more than $1,000. (source)

The New York Post reports:

Famous in the S&M world for her skillful spandex-clad spankings, Smith, while not denying her freaky ways, says she did not make money trolling the dungeons while working for the state’s top law-enforcement official, a job she’s held since 2002. (source)

Nice of the New York Post to have a positive story about Ms. Smith, since its sloppy reporting on her private life is why she got suspended in the first place.

She appeared at a press conference with Gloria Allred by her side to quit her job. (source) Working for $78,000 a year at a job where your boss doesn’t give you a chance to explain when the New York Post, of all places, writes crap about you — yeah, that’s grounds to say “I don’t get paid enough for this shit.”

Lets keep score:

She kicks the shit out of Bank of America and brings $5 billion into the public coffers.

The New York Post writes a sloppy piece full of muck and innuendo about a her private life.

The prosecutor’s office lacks a spine and suspends her, without so much as giving her a chance to respond to the story.

And now all of us suffer, because a seemingly good prosecutor is now making the Gloria Allred circuit instead of kicking the crap out of criminals.

Stripper lacks class (status, that is)

She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me

An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.

Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.

It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)

Ms. Beachemin defined the purported class as follows:

[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).

Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.

Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.

Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)

I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).

Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.

Advice to Law Students looking for a job — don’t be a goddamned crybaby

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

Precisely.

Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.

Big pot joints big labor

By J. DeVoy

Despite the decline of organized labor in the United States with sagging manufacturing, construction and transportation sectors – areas long associated with unionized workforces – the Teamsters union has made inroads with medical marijuana growers. (source.)

The Teamsters added nearly 40 new members earlier this month by organizing the country’s first group of unionized marijuana growers. Such an arrangement is likely only possible in California, which has the loosest U.S. medical marijuana laws.

But it’s still unclear how the Teamsters will safeguard the rights of members who do work that’s considered a federal crime.

“I didn’t have this planned out when I became a Teamster 34 years ago, to organize marijuana workers,” said Lou Marchetti, who acted as a liaison between the growers and Oakland-based Teamsters Local 70. “This is a whole new ballgame.”

In the interest of fairness, the author bloodies the Teamsters’ collective nose a bit.  The union has a storied history, and its members are not strangers to sideways glances from Johnny Law.

Historically, the Teamsters are no strangers to entanglements with federal law enforcement, from the infiltration of the union by organized crime to the disappearance of union leader Jimmy Hoffa. If the federal government decided to crack down on [the indoor marijuana grower at issue], Marchetti said the union was still figuring out how it might intervene.

Still, there are unresolved issues as to the labor classification of these workers.  Depending on how the employees are classified by law, their employment may not be within the scope of the National Labor Relations Act and under the jurisdiction of the National Labor Relations Board, making their organization less effective.  Remedies within California – which is the most populous state in the country and arguably just as good as the Federal government in many respects – could still be available to the freshly unionized employees, though.

Michael Leong, assistant regional director for the Oakland office of the National Labor Relations Board, said he did not know of any case in which the federal government had been asked to mediate a dispute involving a business that was blatantly illegal under federal law.

He also said it wasn’t clear if the new Teamsters would count as farmworkers, which would put them outside the NLRB’s domain.

Michael Lee, general counsel for the California Agricultural Labor Relations Board, said the growers probably would qualify as agricultural workers. Any conflict between workers and the union would likely fall under his board’s jurisdiction, but contract disputes between workers and management would have to be decided in state court.

Broken Penises and the Law

Her reverse cowgirl is, apparently, both incredible and dangerous

By Marc J. Randazza

As office workers, few attorneys have the opportunity to contemplate what workplace injuries can mean to their clients. Honestly, what’s the worst injury you can get on the job in a law office? A paper cut? Your panties in a wad?

In the porn industry, like any other, workplace injuries are an issue. Normally, it is the female talent that winds up a little sore. I mean, those high platform heels will make a girl’s feet hurt like you wouldn’t believe. But, even for the men on a straight porn set, even one that involves no strap-ons, danger lurks… waiting to pounce upon an unsuspecting victim.

Prince Yahshua, CEO of Silverback Entertainment, recently met this unfortunate fate. (Source.) While working with Bethany Benz, a/k/a Caviar, a reality television star and porn novice, they were filming a scene where she was riding him “reverse cowgirl” For those of you who don’t know that position, she was on top of Prince, straddling him while facing toward the camera. The couple lost their natural rhythm and, on an upward thrust, Prince had an epic miss, followed by an audible “pop.” Prince’s penis began gushing blood, and he was rushed to a hospital. There, he underwent surgery for a torn urethra and ripped penile muscle wall, staying in the hospital for three days.

Luckily, Prince Yashua is doing well, and we wish him a continued speedy recovery.

Of course, this being a law blog – we need to look at the legal angle – even just in the hypothetical. Could the Prince get compensation for his broken scepter? If he is classified as an employee of the studio, the poor guy is left with nothing but a workers’ compensation claim. Meaning — he gets partial wage replacement and some medical bills paid. That would really make for a boring blog post though, wouldn’t it?

Sweet mother of god... NO!!!!!

On the other hand, if he is classified as an independent contractor, then one might think that this is a case that turns on whether Bethany was negligent or not in her reverse cowgirl ride. Did she have a duty of care, and if so, did she breach that duty, thus causing injuries to our unfortunate royalty? Is this a case of, “you break, you buy?”

Incredibly, this precise issue has been litigated before. See Doe v. Moe, 63 Mass. App. Ct. 516, 827 N.E.2d 240 (2005).

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant’s body was secured in this position by the interlocking of her legs and the plaintiff’s legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff’s abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as “light bondage” during their intimate relations, there was no evidence of “light bondage” on this occasion. The plaintiff’s injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively. (Op. at 518)

In that case, the plaintiff wanted the court to use simple negligence theory. Was there a duty? Was it breached? Was the breach the cause of the plaintiff’s damages? But, the Supreme Judicial Court Court of Appeals of my beloved Commonwealth of Massachusetts just couldn’t stomach the thought of negligent fucking cases spewing all over the courts. The court determined that… well, deciding what was “reasonable care” in bed is just not something they wanted any Massachusetts court to get into.

We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. Addressing a like issue in a different context, the Supreme Judicial Court recognized that “in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic” as prior precedent had suggested, it could no longer apply the statutory prohibition of G. L. c. 272, § 35, against “unnatural and lascivious” acts to private, consensual adult sexual conduct. Commonwealth v. Balthazar, 366 Mass. 298 , 302 (1974). [Note 4] There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. [Note 5] In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to resolve a claim that certain consensual sexual conduct is undertaken without reasonable care. (Op. at 520-521)

Accordingly, at least in the Commonwealth of Massachusetts, a broken dick case (or any other sex injury case) is going to turn on whether the defendant’s conduct was wanton or reckless, not just negligent.

In the case at hand, I think the injury happened in New York, so who knows what the law is there. I didn’t find any broken dick cases in New York case law. Since Massachusetts is way more fucking awesome than New York, they would probably just follow Mass law on this one.

With respect to Bethany Benz, hopefully this incident will not have an impact on her reverse cowgirl, which I have heard from several people is incredible.

Yahshua, on behalf of all men, everywhere, who have ever lived or who ever will live — get well soon.

We’re all pulling for you.