E-Blasts

Yesterday, April 9th, 2018, the Ninth Circuit ruled in the Rizo v. Yovino (“Rizo”) case that employers may not justify wage gaps between men and women by relying on the employee’s salary history alone under the federal Equal Pay Act (“EPA”). The EPA prohibits employees from being paid differently for similar work, except where the difference in pay is because of seniority, merit, the quantity or quality of the employee’s work, or “any other factor other than sex.”

In February, former talk show host Tavis Smiley (“Smiley”) filed a Complaint against PBS, asserting that sexual misconduct allegations against him were untrue and were used as an excuse to terminate his employment. On March 20, 2018, PBS responded by filing an Answer to Smiley’s suit. Answers are defendants’ responses to complaints containing defendants’ version of events and can, as in this case, contain defenses offered in response to the plaintiff’s claims as well as counterclaims suing the plaintiff. PBS’ counterclaims include details from the harassment investigation, and it’s also seeking $1.9 million in unused funds from producing his show.

According to PBS’ Answer to Smiley’s suit, after renewing the Tavis Smiley Show in November of 2017, PBS received a complaint from a former subordinate of Smiley asserting that Smiley had repeatedly engaged in sexual misconduct. Subsequently, PBS brought in an outside law firm to conduct an investigation into the complaint.

Through the course of the investigation, several others who had worked with Smiley made similar claims of inappropriate behavior and sexual misconduct; the Answer specifically refers to patterns of “having sexual encounters with subordinates,” “making unwanted sexual advances toward subordinates, including requests for specific sexual acts,” “making inappropriate sexual jokes or lewd comments, including about subordinates’ body parts,” and “creating a verbally abusive and threatening work environment, including that he aggressively cursed at and belittled subordinates.”

On March 6, 2018, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against ABM Aviation, Inc. (“ABM”) on behalf of a former employee alleging disability discrimination and failure to provide a reasonable accommodation.

According to the claim, ABM allegedly knew the employee had been diagnosed with leukemia when she was hired. Additionally, the EEOC claimed that, after undergoing emergency services, the employee was told she could only return to work if she had no medical restrictions and that her employment would be terminated if she was unable to work without restrictions. The EEOC also claimed that ABM’s decision to suspend the employee for absences that were allegedly due to her disabilities and then firing her for allegedly violating its attendance policy was unlawful discrimination.

This week, in Alvarado v. Dart Container Corporation of California (“Alvarado”), the California Supreme Court rejected decisions reached at both the trial and appellate level on how to properly calculate overtime owed on flat sum bonuses.  The Court’s decision will have a significant impact on many California employers.

In order to incentivize employees to work on the weekend, Dart’s employees were paid a $15 attendance bonus for working weekend shifts.  To calculate overtime owed on this non-discretionary flat sum bonus, Dart followed the federal method – codified in Fair Labor Standards Act regulations – to determine the employee’s regular rate of pay. Under the federal method, the flat sum bonus is added to other compensation and divided by the total number of hours worked during the workweek to determine regular rate of pay. 

On February 27, 2018, a U.S. District Court in Ohio granted a Motion for Summary Judgment in favor of defendant Repacorp, Inc. (“Repacorp”), dismissing the employee’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”), Sloan v. Repacorp, Inc., 3: 16-cv-00161 (S.D. Ohio Feb. 27, 2018).

Prior to being hired in 2007, Sloan was prescribed medication for back and neck pain, and, in 2013, he began taking morphine.  Sloan did not disclose his medication use to his employer.  In 2014, a coworker informed Sloan’s immediate supervisor that Sloan had solicited Vicodin from the coworker a few weeks prior. Sloan’s supervisor then informed Repacorp’s President Tony Heinl (“Heinl”), who immediately sent Sloan for a drug test. After testing positive for hydrocodone (the opiate found in Vicodin), Sloan was referred to Repacorp’s Employee Assistance Program (“EAP”). Sloan’s EAP coordinator requested Sloan provide information from his physician regarding his ability to work with his medical condition, whether there were any limitations to his ability to work after receiving treatment, his current medications, and whether his current medications impact his ability to concentrate on the job. Repacorp placed Sloan on paid leave “pending the receipt of information from his physician.”

Aaron Glaser, a male comic in New York who was banned from performing at the Upright Citizens Brigade (“UCB”) Theater in 2016 following complaints by multiple women of rape, is now suing UCB, contending that UCB’s actions were unlawful and constituted reverse gender discrimination. According to the complaint, on August 11, 2016, the comic was summoned to UCB’s main offices to discuss the complaints made against him.  The comic alleges that he was only told that “in the past people feel as though you raped them” and that the conduct had occurred in 2010 or before. 

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