Customer Service Reps Get Narrow Collective Cert. In OT Suit

By Abby Wargo/Law360

A Texas federal judge agreed Tuesday to certify a collective of customer service representatives alleging that a medical technologies corporation failed to pay them for off-the-clock work, finding they were all subject to the same policies while declining to toll the statute of limitations and extend the class period.

In an opinion and order, U.S. District Judge Jane J. Boyle granted Angelita Floyd’s motion to certify a Fair Labor Standards Act collective of customer service representatives at Stryker Corp.’s Flower Mound, Texas, facility who did not receive time-and-a-half overtime premiums for hours worked over 40.

However, Judge Boyle would not toll the statute of limitations from Nov. 1, 2022, through April 3, 2023, ruling that there were no outstanding circumstances warranting equitable tolling and limiting the class period to Jan. 2, 2021, to the present. She ordered a 60-day notice period for Floyd to communicate with potential collective members.

Floyd showed that the customer service representatives were all subjected to the same productivity requirements, under the same supervisory umbrella and paid the same $20 hourly rate, regardless of whether they held a senior role or not, the judge found.

Stryker had argued that senior representatives and nonsenior representatives had different job duties and that more senior workers had additional responsibilities, but the judge said the workers do not have to prove they are identically situated and only need to show that they had some commonalities.

Floyd sued in May 2022, alleging that she and other customer service representatives worked off-the-clock without pay for Stryker. Since then, 10 opt-in plaintiffs have joined the lawsuit, records show.

Customer service representatives were all hourly paid and scheduled to work 40 hours a week, Monday through Friday, but Floyd said they often had to work after-hours to keep up with the volume of customer orders, as they were required to process after-hours orders before 10 a.m. the next day. If they failed to do so on time, Stryker would reprimand them and threaten to place them on a performance improvement plan, thus pressuring them into performing unpaid work, Floyd alleged.

A medical technologies corporation based in Kalamazoo, Michigan, Stryker opened its customer service department in Flower Mound in 2020, records show.

Robert J. Valli Jr. of Valli Kane & Vagnini LLP, who is representing the workers, told Law360 the judge’s decision was well-reasoned and thorough. 

“We agree with the court’s decision to credit plaintiffs’ argument that the type of work performed is a more appropriate factor than an employee’s title, when deciding a FLSA motion for certification,” Valli said. 

Counsel for Stryker did not immediately respond to a request for comment Tuesday.

The workers are represented by Alexander M. White and Robert J. Valli Jr. of Valli Kane & Vagnini LLP.

Stryker is represented by Amanda E. Brown, Joseph J. Mammone Jr. and Paulo B. McKeeby of Reed Smith LLP.

The case is Floyd v. Stryker Corp., case number 3:22-cv-01131, in the U.S. District Court for the Northern District of Texas.

–Editing by Abbie Sarfo.

Read the article from Law360 here.

5 Notable Workplace Bias Verdicts From 2023

By Anne Cullen/Law 360

Law360 (December 15, 2023, 6:32 PM EST) — A $36 million jury verdict that the U.S. Equal Employment Opportunity Commission secured in September on behalf of a deaf truck driver marked one of many eight-digit damages awards that workers won in discrimination battles this past year.

Trials held all over the country yielded eye-popping wins for workers. Jurors in Nebraska handed down the EEOC’s trial victory in the trucking case, while a jury in Texas slapped Omni Hotels & Resorts with a $25 million damages bill in an equal pay suit in March.

Later that month, a Massachusetts jury awarded a Thermo Fisher Scientific subsidiary executive a $24 million win in her case alleging she was ousted because she suffered from anxiety.

Sarah N. Turner, a partner at Gordon Rees Scully Mansukhani LLP who advises employers, said the big jury awards are increasingly originating beyond states where they are typically expected.

“The large jury verdicts are no longer isolated to large politically liberal-leaning cities, i.e. New York, Los Angeles,” Turner said. “Large jury verdicts in excess of a million dollars are becoming more common in smaller cities, i.e. Portland, Oregon, and more conservative jurisdictions, i.e. Houston.”

While some of these awards will be cut down — due to statutory caps or employer appeals — McDermott Will & Emery LLP employment partner Jeremy White said these results emphasize the legwork that businesses facing a workplace bias claim must do before jurors are impaneled.

“These jury verdicts exemplify the uncertainty of going to trial,” said White, who is a management-side attorney. “They also show that employers need to win these cases in the trenches, during depositions, which will require additional investment at the discovery phase of litigation.”

Here’s a look at five major trial victories for workers in the past 12 months.

Jury Slaps Luxury Hotel Chain With $25.1M Damages

In March, after three days of trial, a Texas jury found that Dallas-based luxury hotel company Omni Hotels & Resorts violated both Title VII of the Civil Rights Act and the Equal Pay Act when it underpaid a food and beverage director because she’s a woman.

Sarah Lindsley, who worked for Omni for about 16 years, had risen from a part-time server to food and beverage director at the chain’s Corpus Christi location, according to case filings. However, she said that despite her hard work, she was consistently paid less than her male peers.

Lindsley also alleged the company ignored the multiple complaints she said she made about the inequity. A jury found Omni had violated federal laws by undercutting Lindsley’s pay, and awarded her $100,000 in emotional damages and $25 million in punitive damages.

A federal judge later knocked the total award down to $300,000 because of statutory damages caps, but experts said the reward is still notable because of how high the punitive damages were compared to the rest of the award.

Deborah S. Brenneman, a management-side employment partner at Thompson Hine LLP, said this demonstrates that the jury was angry at the company. And she said this could have originated from Lindsley’s allegation that Omni didn’t take any corrective action after she complained.

“The plaintiff was able to, at least from what we’ve been able to see, paint a picture that the employer didn’t take their concerns seriously, and juries punish the companies for that,” Brenneman said.

Speaking broadly about this and other verdicts from this year, she said a key takeaway is that management has to take action when it hears concerns, and make a record of the steps that followed.

“The plaintiffs were able to tell stories that the companies just weren’t listening, and it’s a big warning to employers,” Brenneman said. “It’s a big reminder that when somebody complains about an issue, companies need to show they’re taking the concerns seriously, and document why they did or did not make any change.”

The case is Lindsley v. TRT Holdings Inc. et al, case number 3:17-cv-02942, in the U.S. District Court for the Northern District of Texas.

Explore the remaining four noteworthy employment law verdicts of 2023 as covered by Law360 here.

Marilyn Manson’s Former Assistant Wins Appeal to Revive a Previously Dismissed Sexual Assault Lawsuit

Ashley Walters claims Manson sexually assaulted her, whipped her and threw her against a wall when she was his assistant in 2011.

By Daniela Avila/ PEOPLE

Marilyn Manson’s former assistant has won a critical appeal that will revive her previously dismissed lawsuit against the rocker.

On Wednesday, a tribunal with California’s Second Appellate District sided with Ashley Walters and reversed a lower court ruling — sending the case back to a judge for trial, according to documents obtained by PEOPLE.

In the court filings, Walters claims that Manson (whose real name is Brian Warner) forced her hand into his underwear, whipped her, pushed her into a wall, forced her to stay awake for 48 hours straight, offered her up sexually to friends and associates, once required her to stand on a chair for 12 hours and fed her cocaine to keep her awake among other accusations. She also claims he used threatening behavior, like blackmail, to ensure her silence.

“We believe this ruling makes clear that courts must factor in trauma induced repression into the legal reasoning why survivors often come forward years after their trauma to raise claims,” Walters’ lawyer, James Vagnini, says in a statement to PEOPLE. “This clears a path, much like many of the newly passed laws sweeping the country, allowing victims of sexual assault and harassment to raise their claims against their abusers when they are able to, not by a deadline set by statute.”

In 2021, Walters sued Manson, 54, with claims of sexual assault, sexual harassment and sex discrimination. At the time, she argued that though the alleged abuse took place during her year of employment in 2011, the two-year statute of limitations didn’t apply because she had suppressed her memories until 2020.

Read the full article from PEOPLE here.

Worker Settles Overtime Suit Against Home Remodeler

By Caleb Drickey/Law360 · 2023-10-16 19:49:04 -0400 ·  Listen to article

A worker who accused a home remodeling firm of misclassifying him as an overtime-exempt, salaried employee asked a New York federal court Monday to sign off on an individual settlement to his wage action.

In a letter to U.S. District Judge Diane Gujarati, ex-PHRG Management LLC remodeling consultant Sean Wachter said that a proposed $11,500 settlement to individual age claims would make him whole for withheld back wages and was a fair resolution to disputed claims.

The total settlement equates to more than 100% of what the plaintiff could have recovered under the Fair Labor Standards Act and New York Labor Law, Wachter said, adding: “The proposed settlement agreement is both fair and reasonable.”

Under the terms of the deal, Wachter would receive approximately $6,500 after the payment of attorney fees and expenses. That sum, the worker said, outpaced the roughly $2,400 unpaid overtime wage bill he racked up during his tenure at the company and amounted to roughly 55% of his total potential damages figure.

That return was fair, Wachter said, in light of the risks of further litigation. The worker noted that his former employer maintained its belief that he had been properly classified as an overtime-exempt outside sales worker and contested the number of overtime hours he worked.

“The settlement alleviates plaintiff’s risk of a lower recovery or no recovery at all,” the worker said.

Wachter’s attorneys, meanwhile, would receive an above-benchmark 40% cut of the total settlement fund, plus roughly $230 in expenses, for a total of approximately $4,700. Although Wachter noted that the Eastern District of New York generally limits attorney awards to 33% of a worker’s return, he said that the Second Circuit dissuaded district courts from placing ceilings on fee awards in 2020’s Fisher v. SD Protection Inc. 

He also argued that the proposed fee sat below a nearly $9,500 lodestar figure and was thus reasonable on its face.

Wachter accused the company of violating the FLSA and NYLL in a proposed class and collective action filed in November 2022. In his complaint, he alleged that he should have received time-and-a-half overtime wages instead of a flat, $1,000-per-week salary to compensate him for his up-to-60-hour workweeks.

Representatives of the parties did not immediately respond to requests for comment Monday.

Wachter is represented by Alexander White of Valli Kane & Vagnini LLP.

PHRG is represented by Anthony Mingione of Blank Rome LLP.

The case is Wachter v. PHRG Management LLC, case number 2:22-cv-07155, in the U.S. District Court for the Eastern District of New York.

–Additional reporting by Isaac Monterose. Editing by Nick Petruncio.

See the article from Law360 here.

How to Prepare a Strong Discrimination Claim Against Your Employer

By Kellie Hand

When faced with discrimination in the workplace, it is important to take action as soon as possible, as there are time limits for filing discrimination claims. The best way to protect yourself from discrimination, harassment, and retaliation is to (1) know your legal rights, (2) document everything allowed within state law and company policy (3) consult a legal professional, and (4) remember to take care of your mental and physical health. 

Know Your Rights

In the U.S., employees and job applicants are protected from discrimination in various aspects of employment under federal and state laws. These protections are based on specific “protected classes” such as Race, Color, National Origin, Religion, Sex (including sexual orientation and gender identity), Pregnancy (including childbirth or related medical conditions), Age, Disability, and Genetic Information. 

Note: The Age Discrimination in Employment Act (ADEA) protects individuals who are 40+ years old from age discrimination. However, state laws may have a lower age threshold. For example, New York State’s age discrimination law protects individuals 18+ years old.

Employment aspects protected from discrimination include (but are not limited to):

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave;
  • Other terms and conditions of employment.

Employees are also protected from retaliation if they engage in a legally protected activity, such as reporting discrimination or participating in a discrimination proceeding or investigation. 

Document Everything 

Start by keeping a record of each incident you believe is discriminatory. This can include emails, memos, text messages, or any other form of communication. Also, make a note of any verbal conversations. Be as detailed as possible – write down dates, times, locations, people involved, what was said, and any witnesses. However, please be aware that what you can record and document will vary depending on state laws and company policies. 

Report the discrimination to your supervisor, Human Resources department, or any other relevant authority in your organization. Be sure to follow the company’s procedures for reporting, and do this in writing so you have a record of your report. Additionally, keep copies of your job evaluations and any letters or memos that show you perform your job well. This can be crucial if your employer tries to defend their actions by criticizing your job performance.

Get Legal Advice

If you feel you may be experiencing discrimination, consult with an employment law attorney right away to ensure that you are taking the best possible steps from the start. An employment lawyer can provide advice tailored to your specific situation, guide you through the process, and help protect your rights. 

Take Care of Yourself 

Experiencing discrimination in the workplace can be emotionally draining. Therefore, it is important to seek support from friends, family, or a mental health professional. Taking care of your physical health is also vital during stressful times.

US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

New York City Bans Appearance-Based Discrimination

Updated May 30, 2023

New York City Mayor Eric Adams enacted an anti-discrimination law on May 26 banning discrimination based on an individual’s height or weight when it comes to employment, housing or access to public accommodations.  With the new legislation, residents of New York City will be able to bring claims of discrimination related to their physical appearance before the New York City Commission on Human Rights, a local agency responsible for examining cases of discrimination and harassment.

The bill, sponsored by Manhattan Democratic Councilman Shaun Abreu, will be effective on Nov. 22, 2023. Prior to that date, employers must review their official policies to ensure that they do not include discriminatory practices against height and weight The law includes an exemption for positions where a certain height and weight are required to complete the functions of the job, as stated in federal, state or local law, or if permitted by the NYC Commission on Human Rights.

New York State legislators are aiming to pass a similar bill on the state level, which would prohibit weight and height discrimination across the state. Other states, including Massachusetts, Vermont, and New Jersey, are considering similar legislation in their respective states.

Michigan is currently the only state that bans height and weight discrimination, and only three US cities already have an ordinance in place to ban appearance-based discrimination – San Francisco, California; Madison, Wisconsin; and Urbana, Illinois.

Mayor Eric Adams said the passage of this bill is a significant step towards eliminating appearance-based discrimination in New York City.

“It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment,” he said. “This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”

Fire Department Discrimination Against African American Non-Firefighter Employees

Fire Department Discrimination Against African American Non-Firefighter Employees by James Vagnini{Read in 2:30 minutes} The New York City Fire Department is filled with extremely brave men and women, some out in the field and many behind the scenes. While there is certainly a long and illustrious history of dedication and incredible courage, unfortunately over the years there have also been repeated allegations of racial discrimination. As recently as 2014, the city agreed to pay $98 million to settle what is known as the “Vulcan” case to address allegations of racial bias against New York City Firefighters.  Now, in a federal lawsuit, our firm, Valli Kane & Vagnini LLP and Washington D.C. based Mehri & Skalet filed on behalf of civilian workers of the FDNY and a federal judge ruled that the case can move forward.Continue reading

New York State’s Sweeping Anti-Sexual Harassment Legislation

New York State’s Sweeping Anti-Sexual Harassment Legislation by Sara Wyn Kane {Read in 4 minutes} In response to the #MeToo Movement, New York State and New York City overhauled their sexual harassment policies to give women additional protection in the workplace.

  • It is important that women know they now have additional rights that they did not have before.
  • It is also important that employers know they now have additional responsibilities that they did not have before.

In April 2018, Governor Cuomo signed sweeping anti-sexual harassment legislation into law, which goes into effect October 9th and applies to all employers. The new law requires employers to adopt a prevention plan that not only prohibits sexual harassment but provides examples of unacceptable conduct. The policy has to include information about the federal and state laws, and a standard complaint form. Continue reading

Workplace Discrimination? Get that Complaint Filed!

Employees in this country have protections against workplace discrimination and harassment. These include protection from sexual or racial harassment, national origin, religion, age, disability, and gender (including sexual orientation) discrimination. These forms of harassment and discrimination are spelled out under Title VII, and its amendments, which is the statute enacted as a result of the Civil Rights Act of 1964.
Workplace Discrimination? Get that Complaint Filed!
Prior to that time, there had been other federal statutes such as §1981 and §1983 which address primarily race and national origin discrimination as well as retaliation. These sections, however, did not include gender, religion, disability, or age discrimination. As a result of the civil rights movement, the Civil Rights Act was passed, which was designed to specifically address workplace discrimination and expanded protections for employees subjected to these additional types of discrimination.
The Title VII statute empowered what is known as the Equal Employment Opportunity Commission (EEOC) and created that faction of the government whose job it is to survey and take complaints of workplace discrimination. Anyone wanting to bring a complaint and go into Federal court under those claims has to first go through the EEOC administrative process. As a federal statute, it is the same in every state and any employer who has 15 employees or more is subject to the statute.
The EEOC Filing Deadline
Title VII sets a complaint filing deadline of 180 calendar days. However, it also provides that in any state where there is a similar employment discrimination statute, such as New York, the deadline may be expanded to 300 days. With the exception of a few states like New Mexico and Georgia, every state in this country has a state-level statute against workplace discrimination. In those states that do not, the filing period is limited to the 180 days.
A complaint must be initiated when the harm takes place. You can’t have something happen two years earlier and then wait, worrying whether you are going to lose your job. That is certainly a legitimate worry, but if you choose to wait and try to raise that complaint after the 180-300 days have passed, it will be considered untimely because the statute requires you to make that complaint within 180-300 days of the occurrence of discrimination.
However, certain claims trigger the 180-300 day filing requirement after the last occurrence of discrimination where the discrimination takes place over a period of time. This type of discrimination is known as a “continuous violation.” For example, if you are a victim of sexual harassment and you were subjected to repeated, unwanted sexual advances or comments over a period of months, the clock starts running from the last act of harassment, not the first. Most employees do not know this.
If you believe you have a legitimate complaint, it is extremely important that you make use of resources like the EEOC’s website, or contact a lawyer like us to ask for information about what to do, even if you choose not to act on it at that time. Failing to act in many states leaves you high and dry, without any other protection, because either there is no state statute, or in more conservative jurisdictions like Texas, for example, the states only adopt the same 180-day rule as Title VII.
Paying attention to the EEOC deadlines is an important issue because an employee may have a very strong legal claim but if they do not act within a certain period of time, or get the information to act within a certain period of time, their claim may be completely barred leaving you with no avenue for justice.

James A. Vagnini
Partner
email: [email protected]