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Employment law and HR issues
Labor Court in Berlin finds SONY Germany Guilty of Sex Discrimination PDF Print E-mail
On Tuesday, a labor court in Berlin found Sony Music Entertainment Germany guilty of sexual discrimination for promoting a man over a woman who was expecting a child.

The women worked in the area of international marketing for Sony Music Entertainment, a joint venture at the time between Germany's Bertelsmann and the Japanese Sony label. She and two male colleagues were in the running for the job as a manager. After one of her male colleagues got the promotion, she sued against Sony in 2005. When she asked for the reason of the decision, the Sony management told her it was related to her family situation and that she should be pleased she was getting a baby.

The court in Berlin twice denied her claims because a sexual discrimination could not be proven. Finally, the court granted the woman's appeal and decided Sony had failed to prove that there had been no sexual discrimination by denying her the promotion. The court has allowed an appeal of its decision to the Federal Labor Court in Erfurt.

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Arguments between National Football League and Players Association still Not Settled PDF Print E-mail
On February 14, 2011 the National Football League (NFL) filed an unfair labor practice claim with the National Labor Relations Board (NLRB) against the National Football League Players Association (NFLPA). The NFL is accusing the NFLPA of failing to bargain in good faith and threatening the NFL to decertify the NFLPA.

When talks did not reach a solution, the NFLPA dissolved itself. As a result, players are no longer protected under labor law but instead are now allowed to take their chances in federal court under antitrust law. Ten players filed a class-action lawsuit and asked for a preliminary injunction to block a lockout. The lockout, nevertheless, went into effect on March 11.

The NFL owners had the right to impose the lockout under federal labor law since the collective bargaining agreement with the NFLPA expired. A „lockout“ means there can be no on-field football action or communication between the teams and current NFL players. Team doctors will be allowed to monitor the progress of injured players, but not at the team’s facility. No offseason workouts or minicamps will be held during a lockout. No players can be signed and players will not have medical coverage provided by the teams.

On April 25, U.S. District Judge Susan Richard Nelson granted the injunction to end the league’s six-week-long lockout. She hereby argued that an appeal by the NFL owners could take many months to be resolved. It would cause irreparable harm to players while they remain locked out of training facilities and free agents are unable to sign contracts. Moreover, the public interest, the fans, did not favor a lockout. Nelson, however, did not tackle the issue of the antitrust lawsuit.

The NFL responded by filing a notice of appeal questioning whether Nelson exceeded her jurisdiction since „federal law bars injunctions in labor disputes.“ It also asked for an expedited stay, meaning it wanted Nelson to freeze her ruling to let the appeals process play out.

The hearing on the NFL’s appeal of the injunction is set for June 3. The stay and appeal are being decided by the same three judges who voted (2 to 1) on April 29 to give the NFL a temporary stay that reinstated the lockout.

The stay is a critical decision for both sides and for the course of the off-season. If the NFL is being granted the stay, the league would remain closed for business at least until the appeal is decided, and that could put increasing financial pressure on players. If the NFL is not being granted the stay, it would be forced to open for business, including starting a free agency, under rules that are likely going to be similar to those used in 2010. It is also being argued that stopping the lockout would open all 32 teams up to additional antitrust claims. Antitrust claims carry triple damages for any harm proven, meaning hundreds of millions of dollars are at stake.

But, there is hope the issue will be solved before June 3. The case will be heard before the NLRB on May 16 by U.S. District Court Judge David Doty, the man in charge of NFL labor matters since 1993.
 
“Zombie Pay Claims” and What Your HR Department Should Know About the Lilly Ledbetter Fair Pay Act PDF Print E-mail
Is it ever too late for an employee to sue their company for acts of payment discrimination?

The rule of “you snooze, you lose” is largely true. One of the most important deadlines in a lawyer’s mind is the Statute of Limitations, otherwise known as the last possible day one can file their lawsuit before it is time-barred and the claims effectively die. When one of my clients is threatened with a lawsuit, one of the first questions I ask is “When did this event happen to the plaintiff?” because there is often a good chance that the plaintiff has waited too long to bring a lawsuit, their claim is already “dead-in-the-water,” and the client doesn’t have to incur unnecessary legal fees to defend or negotiate this claim.

When will the time run out for an Equal Pay claim? According to the Civil Rights Act of 1964, an employee must bring their equal-pay claim regarding payment discrimination (employee receives unequal pay for equal work, because of their gender or race) within 180 days of the discriminatory event/act. Statutes of limitation are important because they bring a sense of finality and permanent closure to a matter. A person’s right to sue doesn’t live on forever, and if they failed to bring their equal-pay claim within 180 days of the discriminatory event, then the claim passed away.

President Obama changed this concept with the first bill he signed into law on January 29, 2009. From an employer’s perspective, the Lilly Ledbetter Fair Pay Act created a “zombie” claim for employees that can repeatedly rise from the grave and continually haunt the company for years.

Why is it considered a “Zombie” Claim? Because the Lilly Ledbetter Fair Pay Act allows a current employee’s Equal Pay claim to be repeatedly resurrected from the dead -- no matter how long ago the discrimination actually took place -- every time they receive a paycheck.

For example: Eleanor Employee has worked at ACME Inc. for several years as a plant manager. On March 1, 2000, Eleanor learns that the ACME executives granted only the male managers a pay raise, but did not grant any raises for the female managers. Eleanor continued to work for ACME, but over the years she became increasingly frustrated by the fact her male peers have been earning so much more than her (for doing the same job) and she decided to file an Equal-Pay claim against ACME on December 1, 2005 alleging pay discrimination.

Before Lilly Ledbetter: Eleanor can NOT bring her claim against ACME; she waited more than 180 days from the date of the discriminatory event, and her claim against ACME had been dead for more than 5 years.

After Lilly Ledbetter: Eleanor can bring her claim against ACME, because she brought her claim within 180 days from the date of her last paycheck.

What this means: Every time the current employee receives a paycheck, the clock “resets” and the 180-day timeline to bring an Equal-Pay claim begins anew – regardless of when the employer’s discriminatory act took place!

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Bias Against the Unemployed? PDF Print E-mail
The Equal Employment Opportunity Commission has begun a probe of whether employers and recruitment firms are unlawfully barring the unemployed from applying for certain jobs, the agency's chairman said.

EEOC Chairman Jacqueline Berrien said at a hearing on February 16, 2011 that the agency began hearing anecdotal reports of the practice last summer, including from news reports and from worker-advocacy groups gathering examples of help-wanted advertisements that said only individuals who currently had jobs should apply.

"We'll take a close look at what we heard and consider if there's anything we might need to do to clarify standards," she said.

It isn't clear what the EEOC will do to address the issue, or to what extent it is authorized to act. EEOC and Labor Department officials said they don't have much data on whether the practice of excluding unemployed people from applicant pools is widespread. Lawyers representing employers say it isn't, and even when it is done it can be justified based on employers' need to find workers whose skills are up to date.

Lawyers say no law explicitly bans a company from excluding applications from the unemployed. But civil-rights law does prohibit actions that put a group of applicants at a disadvantage based on their race, gender or age, unless an employer can show a business's necessity for their decision.

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Florida: Health Care PDF Print E-mail
A federal judge in Florida ruled on January 31, 2011 that the Obama administration's health care overhaul is unconstitutional, siding with 26 states that sued to block it.

U.S. District Judge Roger Vinson accepted without trial the states' argument that the new law violates people's rights by forcing them to buy health insurance by 2014 or face penalties.

We will update in the future the development and the implications for our clients.
 

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