Employment law and HR issues
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.
For more legal updates, please visit our blog.
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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.
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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!
Fore some practical concerns, please click below
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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.
If you need any consultation about your employment practice, please contact us. For more details read below.
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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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Did you know? You can receive our free monthly NewsLetter from Reinhard von Hennigs, written in German and English. Tons of useful information each month about German and American law.
