Class Action Settlement – Short, et al. v. Churchill Benefit Corporation/Yurcor

Daniel Short, et al. v. Churchill Benefit Corporation dba Yurcor; Framestore, Inc.; Richard McCann; and Mark Ticar

Case No. 1:14-cv-04561

United States District Court for the Eastern District of New York

Bill Payne and Pamina Ewing are pleased to announce that the court has approved the class action settlement in Short, et al. v. Churchill Benefit Corporation, et al.   Following a May 23, 2017 hearing, the court found the settlement to be fair, reasonable and adequate; certified the class for settlement purposes; and that the attorneys’ fees are reasonable.

FDPK and its co-counsel, The Brualdi Law Firm, P.C., Grebow & Rubin, LLP, and Schwartz, Steinsapir, Dohrmann & Sommers, LLP, represent Mr. Short and employees of Churchill Benefit Corporation dba Yurcor and Framestore, Inc.  The class action alleged that the employers did not properly communicate the pay rate for Yurcor employees and as a result they were not paid their full pay rate and were improperly misclassified as independent contractors.

The Settlement Class is defined as follows:

The Settlement Class shall include all individuals who worked as an Artist for or through Yurcor at Framestore in the State of New York during the time periods specified below and who were paid for services rendered to Framestore by Yurcor and who had what has been termed “Administrative Overhead” costs deducted from their pay. The Settlement Class Period shall commence six (6) years prior to July 30, 2014 and continue through the date the Court grants preliminary approval of the Settlement (February 10, 2017).

Click here to review the Memorandum & Order of Preliminary Settlement Approval.

Office of Federal Contract Compliance Programs Publishes New Sex Discrimination Rule.

On June 15, 2016, the US Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published its final new sex discrimination rule.  The new rule outlines obligations certain federal contractors and subcontractors must meet under Executive Order 11246 and its amendments. The rule will go into effect on August 15, 2016.

Prior to the publication of this new rule, the OFCCP Sex Discrimination Guidelines had not been significantly updated since 1970.  Federal anti-discrimination law, by contrast, has changed dramatically in the intervening decades.  The June 15, 2016 OFCCP Rule brings the rules for federal contractors and subcontractors in line with current law.

The new sex discrimination rule highlights several important points.  The OFCCP estimates that more than 30 million women are employed by federal contractors or subcontractors. To put this in context, in 2010 the Department of Labor estimated that only 66 million women were employed in the U.S.

Federal contractors have certain obligations that go beyond what the law requires of private companies.  For example, one Executive Order signed by President Obama in 2014 prohibits federal contractors from retaliating against employees who discuss their salaries; another prohibits federal contractors from discriminating against their employees based on sexual orientation. Employees of federal contractors who believe that their employer is violating its obligations under Executive Order 11246 may file a complaint with the OFCCP.

The new sex discrimination rule also highlights several key areas where gender discrimination in the workplace persists, including sex segregation within particular occupations (notably the construction trades), wage disparities (worse for women of color and women with disabilities), pregnancy and caregiver discrimination (worst among low income employees), sexual harassment (particularly in fields where women are under-represented, from construction to the tech industry, and sex-stereotyping.

If you are concerned that have been discriminated against because of your gender, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation.

Posted by Deborah K. Marcuse.

New Overtime Rule Expected to Benefit Millions of Employees

On May 23, 2016, the United States Department of Labor (DOL) issued a new overtime rule under the Fair Labor Standards Act (FLSA).

The new overtime rule is expected to automatically extend overtime pay eligibility to 4.2 million salaried workers. It will entitle most salaried white collar workers earning less than $913 a week ($47,475 a year) (“salary threshold”) to overtime pay if they work more than 40 hours in a week.  The increase will go into effect December 31, 2016.

The new rule also requires that the salary threshold be automatically updated on January 1, 2020 in order to ensure that the benefits of the new rule are not lost by time and inflation.

Under the new rule, an employer may use bonuses and incentive payments to satisfy part of the standard salary threshold if:

• the bonuses and incentives total no more than 10% of the employee’s regular compensation;
• the bonuses are non-discretionary (which means they are promised and must be paid at a fixed rate); and
• the payments must generally be made on a quarterly basis.

The DOL published questions and answers about its new final overtime rule at:  https://www.dol.gov/whd/overtime/final2016/faq.htm

The new rule does not change the “duties” test used by employers to determine whether white collar salaried workers that earn more than the salary threshold are eligible for overtime pay. That exemption is available when a salaried employee holds a bona fide executive, administrative, professional, computer, or outside sales position.  These exemptions are sometimes referred to as “white collar” exemptions.

Information about white collar exemptions may be found in DOL Wage and Hour Division (WHD) Fact Sheets (published in 2009):

Executive Exemption:  https://www.dol.gov/whd/overtime/fs17b_executive.pdf

Administrative Exemption:  https://www.dol.gov/whd/overtime/fs17c_administrative.pdf

Professional Exemption:  https://www.dol.gov/whd/overtime/fs17d_professional.htm

Computer-related Occupations Exemption:  https://www.dol.gov/whd/overtime/fs17e_computer.pdf

Outside Sales Exemption:  https://www.dol.gov/whd/overtime/fs17f_outsidesales.pdf

The information provided here is a brief summary of hundreds of pages of regulatory guidance. It is not intended to provide legal advice to a specific individual with an individual problem.

If you have questions about whether you are entitled to overtime now or beginning January 1, 2017, please contact Ed Feinstein or Deborah Marcuse.

FDPK’s Deborah Marcuse wins Class Certification in $250 Million Sex Discrimination Case

U.S. District Court Certifies Female Sales Representative’s Nationwide Equal Pay Act Sex Discrimination Case Against Pharma Behemoth Merck & Co., Inc.

Deborah Marcuse, co-lead counsel in $250 million sex discrimination lawsuit

The women in Smith, et al. v. Merck & Co., Inc., 3:13-cv-02970 (D.N.J.), a $250 million gender bias class action, scored a victory on April 27, 2016.  Judge Michael A. Shipp of the U.S. District Court in New Jersey conditionally certified a class of current and former female sales representatives challenging sex discrimination.  This important ruling paves the way for thousands of women throughout the country to join the lawsuit.

Click here to review the Smith v. Merck Memorandum Opinion.

Judge Shipp’s ruling concluded that “[t]he information submitted by Plaintiffs shows that the sales representatives had similar responsibilities; that named plaintiffs were paid less than some allegedly similarly situated males; and that compensation decisions, although based in part on input from some direct managers, were finalized by a central, common office.”  The Court also cited statistical evidence the Plaintiffs had submitted that demonstrated that female sales reps earned on the average 1.4% less per year than males in the same roles.  Based on this evidence, the Court concluded that the lawsuit should go forward as a collective action.

Deborah K. Marcuse of Feinstein Doyle Payne & Kravec, LLC is co-lead counsel for Plaintiffs and the class in Smith v. Merck, as well as another nationwide gender class action filed on behalf of female sales representatives at Forest Pharmaceuticals.  That case, Barrett et al. v. Forest Laboratories, et al. (SDNY), was conditionally certified in 2015.

If you are concerned that your employer is not paying you the same as your male counterparts for performing the same duties, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation.

Posted by Deborah K. Marcuse.

Recover Unpaid Wages – Workers Owed Wages

This summer the federal government launched an online tool called Workers Owed Wages (“WOW”) to help thousands of workers to recover unpaid wages.

The United States Department of Labor’s Wage and Hour Division (“WHD”) investigates violations of minimum wage and overtime laws by employers. When the WHD finds violations – such as an employer paying its workers less than $7.25 per hour or not paying time-and-a-half for working more than 40 hours in one week – the government often may recover unpaid wages on behalf of these employees. In 2014, the WHD recovered over $240 million owed to more than 270,000 workers nationwide.

In many circumstances, it is easy for the WHD to distribute the recovered wages to the rightful employees.  But employees in certain sectors of the economy (like agriculture and fast food) are often more difficult to track down because their employment is temporary, seasonal, or short-lived, which is why the WHD developed WOW.  A worker who believes that he or she is owed back wages collected by the WHD may search the database to recover unpaid wages by answering a series of simple questions in English or Spanish to find out if the government is holding unpaid wages collected on the worker’s behalf.

The WHD reports that “[I]n California alone, there are approximately $14 million dollars waiting to be collected by some 21,000 workers.  And there are many millions of dollars in back wages still waiting to be collected by workers nationwide.”

Since its launch earlier this year, WOW helped workers to recover unpaid wages totaling more than $800,000.

Workers should check the WOW database sooner rather than later because, after three years, the law requires WHD to send the uncollected money to the U.S. Treasury, where it can be spent by the government.

If your employer has failed to pay you for all of the hours you worked, please contact the employment lawyers at Feinstein Doyle Payne & Kravec, LLC.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

EEOC Holds that Sexual Orientation Discrimination is Illegal Under Title VII

On July 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued an historic administrative decision stating that sexual orientation discrimination by an employer is illegal under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Click here to review the decision:  EEOC Sexual Orientation Discrimination Decision

The EEOC’s decision states that if an employer makes an adverse employment decision on the basis of an employee’s sexual orientation, the employer is violating the Civil Rights Act.  Sexual orientation discrimination is a type of sex discrimination, and is explicitly prohibited under Title VII. “[S]exual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The EEOC provided a simple hypothetical situation to explain its position:  A lesbian female employee and a straight male employee both display pictures of their wives on their desks.  If the employees’ boss suspends the woman because she had the photo on her desk, but does not do the same to her male co-worker, she may allege a charge of discrimination by claiming that her boss wouldn’t have suspended her if she were a man with a wife.

While the administrative decision provides clear insight into the EEOC’s interpretation of Title VII, at this time the decision is not binding on any claim made by non-federal employees.  Nonetheless, courts may likely be persuaded by the EEOC’s decision when considering the discrimination claims of private sector employees.

If courts do adopt the EEOC’s interpretation of sexual orientation discrimination, this decision should come as a relief to LGBTQ residents of Western Pennsylvania.  Until this decision, no federal or state law made it illegal for employers to fire, harass, or refuse to hire LGBTQ workers on the basis of their sexual orientation.

The City of Pittsburgh and Allegheny County, along with several other Eastern Pennsylvania municipalities, have had local Human Relations Acts in place for several years that prohibit this type of discrimination against workers. Now, through the EEOC, LGBTQ residents of Westmoreland, Fayette, and Beaver Counties (to name just a few) have a way to fight workplace sexual orientation discrimination.

If you are employed in Western Pennsylvania and believe you are being discriminated against by your employer because of your sexual orientation, please contact FDPK’s employment lawyers.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin, July 27, 2015.

Independent Contractors:  California Labor Ruling that Uber Driver is an Employee

June 19, 2015. The California Labor Commissioner issued a decision earlier this month stating that an Uber Driver is not an independent contractor.  The decision awarded reimbursement of business expenses to an Uber Technology driver.  Click here to review the Labor Commissioner’s Decision.

California law requires employers to reimburse employees for business expenses incurred while working.  Independent contractors are not reimbursed for business expenses.

Uber is an American transportation company that connects customers who need rides with a fleet of drivers through a mobile app.  The Uber mobile app allows consumers to submit a trip request which is then routed to drivers.  Uber claims to be less expensive and more efficient than a traditional taxi or car service. Services are paid via credit card when customers register for an account.

Uber classifies its drivers as independent contractors.  However, according to the recent decision by the California Labor Commissioner, Uber would not exist without its drivers.  In addition, because the company is “involved in every aspect of the operation,” the drivers meet the traditional legal standard of an employee and are not independent contractors.

On June 17, 2015, Uber appealed the California Labor Commissioner’s decision to the Superior Court of California. If the court affirms the Labor Commissioner’s decision, the door has been opened to Uber drivers to demand not only business expense reimbursement, but also payment of overtime and compensation for their work at the hourly minimum wage level.

If your employer has classified you as an independent contractor, but you feel that you do the work of an employee, please contact the employment lawyers at Feinstein Doyle Payne & Kravec, LLC.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin.

MISCLASSIFIED WORKERS ARE CHEATED OUT OF BENEFITS:  How Do You Know If You Are an Independent Contractor or an Employee?

Some companies try to reduce costs by classifying members of their workforce as “independent contractors,” rather than employees.  Why?  Employers do not have to pay independent contractors overtime, regardless of how many hours they work.  Independent contractors must withhold the correct amount of taxes from their own paychecks.  If an employer offers benefits to its employees, such as health insurance and retirement plans, it doesn’t have to offer those same benefits to independent contractors.  If an independent contractor has been terminated, they are not eligible for unemployment benefits.

How do you know if you should be classified as an independent contractor or an employee?  The key word is “independent.”  The determination of whether you should be classified as an independent contractor depends on how much control the company has over the worker.

Independent contractor status is proper in a situation where a firm brings in an IT technician to install a computer network during the next few months. Independent contractors are normally hired by companies for a set amount of time. They use their own tools and the employer has very limited supervision over them. The work they do is not vital to the employer’s business.  Independent contractors are in business for themselves, selling their services to multiple other businesses over time.

Employees are economically dependent upon their employer, who provides their tools and closely supervises their work.  The employer usually hires employees for an indefinite period of time (except in cases of seasonal work) and the work performed is essential to the employer’s business. If a delivery service requires its workers to buy, insure, and maintain trucks with the company’s logo and sets those drivers’ shifts and delivery routes, those workers are not independent contractors. See:  http://www.forbes.com/sites/robertwood/2014/08/27/fedex-misclassified-drivers-as-independent-contractors-rules-ninth-circuit/

Determining whether a worker is improperly classified as an independent contractor or an employee can be a complicated legal question.

If you have a signed contract stating you are an independent contractor but you feel more like an employee, call FDPK’s employment lawyers today.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin.  April 16, 2015.

Department of Justice States That Title VII Prohibits Gender Identity and Transgender Discrimination

Title VII News – Attorney General Eric Holder announced on December 15, 2014 that the Department of Justice takes the position that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on gender identity, including transgender status.

This reverses the Department of Justice’s 2006 position that Title VII’s prohibition of discrimination “because of . . . sex” did not cover discrimination because of gender identity or transgender status.

Attorney General Holder noted that courts have reached different conclusions about whether Title VII’s prohibition of discrimination “because of . . . sex” includes discrimination due to gender identity or transgender status. Some courts have allowed gender identity and transgender discrimination claims under a “sex stereotyping” theory, where an employee believes they were discriminated against due to his or her failure to live up to socially constructed expectations of how men and women should look and act. This is the first time the Department of Justice stated that Title VII’s prohibition of discrimination “because of . . . sex” also forbids discrimination because of gender identity or transgender status in and of itself, and not using a “sex stereotyping” theory.

Attorney General Holder concluded, “My hope . . . is that this clarification of the Department’s position will foster consistent treatment of claimants throughout the government, in furtherance of this Department’s commitment to fair and impartial justice for all Americans.”

Transgender individuals face employment discrimination and unemployment at higher rates and are more likely than others to live in poverty. FDPK lawyers are committed to ensuring that all employees can work free of discrimination.

Click here to view the Department of Justice’s announcement: Title VII Memo

If you have questions concerning employment discrimination contact Ed Feinstein or Sarah Martin.

Posted by Greg Murray.  December 19, 2014.

Victory in One Federal Appeals Court for Employees with Temporary Disability

 
A recent decision by the Fourth Circuit of Appeals  (Summers v. Altarum Institute, Corporation, No. 13-1645 (4th Cir. Jan. 23, 2014)) found that an employee’s temporary condition may be considered a disability.  
 
In October 2011, Carl Summers, a statistical analyst for Altarum (a government contractor), fell as he was getting off a train.  He broke bones and tore tendons in both legs and needed surgery.  His doctors told him he would not be able to put any weight on his legs for at least six weeks. Doctors also estimated that it would be seven months before Summers could walk normally again.
 
Summers called Altarum’s HR Department from his hospital bed to ask about temporary disability (short term disability) benefits.  He also asked about working from home. The HR employee suggested that Summers should focus on getting well and that he could discuss accommodations for his temporary disability at a later time. Summers also contacted his supervisors to discuss working from home.  No one at the company ever followed up on his requests and in November Altarum fired Summers.  His position was filled by another analyst.
 
Summers sued Altarum, claiming that he was discriminated against because of his temporary disability in violation of the Americans with Disabilities Act (“ADA“). Congress enacted the ADA in 1990 to prevent discrimination of people with physical and mental disabilities in employment and other areas of life (education, public transportation, etc.)
 
According to the ADA, if an employee or applicant is otherwise qualified to do a job, the employer is required to make reasonable accommodations for a physical or mental impairment which greatly limits a major life activity (for example, breathing, walking, hearing, etc.) unless the accommodation would cause an “undue hardship for the employer.”
 
In order for the ADA to apply, the employee must inform his employer of the temporary disability. The employer and employee must then have a conversation (called “the interactive process”) to determine what kind of reasonable accommodations would be helpful and are available. An employer cannot take action against the employee (such as terminating or demoting) just because of the temporary disability and the employer does not want to be inconvenienced by offering an accommodation.
 
After the Supreme Court held in 2002 that a temporary disability due to injury or illness could not be considered a disability under the ADA, Congress amended the ADA in 2008 to expand the definition of “disability.” The Equal Employment Opportunity Commission “EEOC” (the government agency responsible for enforcing federal anti-discrimination laws) issued regulations stating that, for purposes of proving disability under the ADA, “an impairment lasting or expected to last fewer than six months can be substantially limiting.”
 
In Summers’ case, the lower court judge ignored the change in the ADA and the EEOC regulations.  That court found that Summers was not disabled because his injuries were temporary and he was expected to heal within one year.  That court concluded that Altarum had not violated ADA when it fired Summers.
 
Summers appealed the decision to the Court of Appeals for the Fourth Circuit, which reversed the lower court’s ruling.  The Appeals Court found that, under the ADA amendments and the EEOC regulations, even if an impairment is short-term it may qualify as a disability if it is “sufficiently severe.”  The Appeals Court concluded that the extensive injuries Summers suffered to both his legs could be considered “sufficiently severe” to justify protection under the ADA as a temporary disability. The Appeals Court sent the case back to the trial court for further litigation pursuant to this finding.
 
If you have questions about a temporary disability or short term disability and accommodations by your employer, FDPK’s experienced attorneys would be happy to assist you.  Feel free to call (412-281-8400) or email ([email protected]).  All inquiries are confidential.