All the Money in the World: Mark Wahlberg, Michelle Williams, and wage disparity issues

January 22, 2018 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

In the wake of the Harvey Weinstein scandal and the ongoing Hollywood reckoning, Kevin Spacey’s downfall was swift following accusations from Anthony Rapp that Spacey sexually assaulted him at the age of 14.  Since Rapp came forward, several others have joined him in accusing Spacey of sexual misconduct and predatory behavior.  Netflix suspended production of House of Cards, and director Ridley Scott began pursuing rapid reshoots to recast Spacey’s role in the true crime thriller All the Money in the World.  Ironically, efforts to eradicate Spacey’s shadow of sexual harassment allegations inadvertently led to a highly publicized discussion about sex-based pay disparities.

Regarding the reshoots necessary to replace Spacey with Christopher Plummer, Scott stated in interviews that all cast members (with the exception of Plummer) completed the reshoots free of charge.    Michelle Williams, one of the film’s stars, confirmed that she agreed to do the reshoots for free and that “it is our little act of trying to right a wrong.  And it sends a message to predators–you can’t get away with this anymore.  Something will be done.”

However, earlier this month, USA Today reported that another one of the film’s stars, Mark Wahlberg was paid $1.5 million for the reshoots while Williams received an $80 per diem totaling less than $1,000.  The fact both actors were represented by the William Morris Endeavor Agency (WME) added even greater fuel to the ensuing fire.  A social media storm erupted with many condemning the pay disparity between Williams and Wahlberg as yet another example of gender inequality in the workplace.  Just two days earlier, male and female stars (including Williams) had worn black to the Golden Globes as a showing of support for Time’s Up, an anti-harassment and gender equality initiative launched by Hollywood power players like Reece Witherspoon, Eva Longoria, Shonda Rhimes, Ashley Judd, Natalie Portman, and many more.

Mark Wahlberg responded to the film controversy by promising to donate $1.5 million in Williams’ honor to the Time’s Up initiative.  WME promised to donate an additional $500,000 to Time’s Up.  Williams released a statement saying, “If we truly envision an equal world, it takes equal effort and sacrifice.  Today is one of the most indelible days of my life because of Mark Wahlberg, WME, and a community of men and women who share in this accomplishment.  Anthony Rapp, for all the shoulders you stood on, now we stand on yours.”

However, the controversy has not ended there.  The Hollywood Reporter released a story that Williams reportedly was paid $625,000 for her work on All the Money in the World while Wahlberg took home $500 million, despite the fact they had nearly equal screen time in the film.  Renewed public outcry has called for transparency in pay discussions and equality in the workplace.  News outlets and social media are likely to bring us similarly high-profile stories raising pay disparity issues, and it seems that a growing number of actors have been emboldened to discuss pay and alleged inequalities.  Indeed, the National Labor Relations Board has repeatedly reiterated employees’ right to discuss pay, and an executive order issued by then-president Barack Obama extends a similar standard to federal contractors who are not covered by the NLRA.

While so many of these headlines involve Hollywood stars, employers in all industries should take note and embrace the opportunity to evaluate and continue to re-evaluate their own practices to ensure legal compliance and a healthy work environment for employees.  My colleague, Rachel E. Kelly wrote a great piece last week offering employer tips on the importance of transparency and establishing an appropriate workplace culture where qualified diverse candidates can thrive.  As Rhimes stated about the Time’s Up initiative, “It’s very hard for us to speak righteously about the rest of anything if we haven’t cleaned our own house.”  It seems that time is indeed up for those who put off necessary house cleaning.

 

‘Royal’ additions: handling HR issues that arise due to marriage and childbirth

December 18, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

I admit that, like many Americans, I am fascinated with the lives of the British royal family. That is especially true with respect to Charles and Di’s two young princes. I enjoy hearing news about Prince Williams’ adorable family, and I was excited to hear about Prince Harry and Meghan Markle’s recent engagement. In fact, this coming spring will mark two momentouPregnant businesswoman working on a laptops occasions for the royal family, as William and Catherine are expecting a baby in April, followed by the wedding of Harry and Meghan in May. I cannot wait to tune in!

Although royalty (and even famous actresses like Markle) do not need to worry much about how marriage and childbirth will affect their jobs, regular Joes certainly do. Accordingly, HR must be ready to assist employees when they undergo these major life changes.

Marriage

When an employee gets married, he or she may undergo a legal name change. From an administrative standpoint, the employee should provide updated personnel documents:

  • First, an employee should provide the employer with a copy of his new, updated Social Security card with the new full name. This is important because the IRS mandates that the card information match the company’s payroll information.
  • The same is true for employee tax documents on file with the employer. The employee will need to update the W-4, so that the legal name is reflected on the corresponding W-2 correctly.
  • Note that an employer is not automatically required to update the employee’s I-9 after a legal name change, but the United States Citizenship and Immigration Services (USCIS) recommends doing so in order to have employment records be uniform for the employee.
  • HR will also want to ensure that the employee’s benefits paperwork is updated (including any beneficiary forms).
  • The company may want to require that the employee provide an updated version of his driver’s license, especially if the employee drives a vehicle as part of his job.
  • Some couples set up a joint bank account after marrying. For such employees, HR will want to be sure (for payroll purposes) that any direct deposit information is correct and is adjusted if there is a new account.
  • Finally, the employer should ensure that documents such as “who to contact in an emergency”, business cards, email accounts, desk or wall name plaques, and company phone lists are all updated with the new name.

In addition, HR may want to check in with the employee about any extended time off needed for the wedding and/or honeymoon. If the employee has PTO or vacation time available, it is advisable to determine how the time off will be allocated in advance. Also, having HR work with the employee and his manager on plans for an extended time away may help decrease the disruption on the business.

Childbirth

When an employee has a new child, through birth or adoption, there are a plethora of considerations affecting the employment of the new parent.

  • As with marriage, benefit plans are a consideration. Adding the new child to the employee’s health plan, life insurance, flexible spending accounts, etc. as soon as possible is very important. The employee may also want to update beneficiary designations for life and other types of insurance to include the new child.
  • HR should ensure that the employee understands all of her rights under federal, state, and local law with respect to leave time following the birth or adoption, as well as the employer’s policies and benefits regarding leave. The Family and Medical Leave Act (FMLA) often comes into play, as do maternity/paternity leave policies.
  • Companies need to be sure that their nursing mother policies are up to date and that those policies are aligned with the law.
  • Childcare is another consideration for the employee who is a new parent. Some employers have direct childcare benefits and offer onsite daycare, while other employers have arrangements with nearby daycare centers that offer affordable and quality childcare for the employee. HR should ensure that the employee who welcomes a new child has all the necessary information about any childcare benefits available from the company.

In sum, it is exciting when royals—and even commoners!—get married and have children. For commoners who work, HR can be a great asset and partner in the employment-related aspects that accompany these important life changes.

Coaching reVOL-UTion: Schiano, Currie, and what school’s lawyers are analyzing right now

December 05, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

The Tennessee coaching search has produced high drama over the past two weeks. For Vol fans like myself, it has felt at times like absolute torture and at other times like just a little bit of torture. “Vol-nation” was in better spirits after the hiring of Phillip Fulmer as Athletic Director was announced, and many are pleased with the selection of master-recruiter and talented Alabama Defensive Coordinator Jeremy Pruitt as the next head coach of the Vols. Details surfaced early Thursday that Pruitt’s new contract is for 6-years at roughly $4 million per year.

Despite this stability, however, the University of Tennessee is far from out of the woods. That is because the administration is staring down the barrel of two potentially costly legal battles over separate memorandums of understanding (MOUs) with would-have-been head coach Greg Schiano and outgoing Athletic Director John Currie. As a legal blogger and avid college football fan, I have never been more excited to bring you legal analysis.

Schiano’s MOU

As you might recall, the Schiano hire at Tennessee was torpedoed after fans and boosters responded in an overwhelmingly negative way via social media and some alleged behind-the-scenes protests. It was later reported that Schiano may seek compensation for Tennessee backing out of an MOU that was allegedly signed by then-athletic director Currie. For starters, the biggest problem in giving any decided legal opinion is that we don’t have a copy of the MOU. In the absence of the actual Schiano MOU, most have looked to the MOU for current UT head basketball coach Rick Barnes for guidance about what might be in Schiano’s agreement. The Barnes MOU contains basic contract language, i.e., offer, acceptance, description of duties, compensation, and termination provisions. It is essentially a legally binding agreement and not an agreement to agree, even though it does contemplate the parties would sign a more detailed agreement later. The MOU contains standard for-cause/no-cause termination provisions outlining the parties’ duties in the event of a separation. The Schiano MOU is likely structured similarly.

While initial reports stated that Currie signed the document, reports have since surfaced that UT Chancellor Beverly Davenport did not sign the MOU, leaving some question about its enforceability. The question remains whether Currie’s purported signature on the MOU makes the document legally binding when UT’s top brass didn’t sign the agreement. The Barnes MOU states it would constitute a legally binding agreement “when fully executed.” I added the emphasis to “fully” because of the report that Currie’s is the only Tennessee signature purportedly on the agreement. By contrast, the Barnes agreement required the signatures of the athletic director, the chancellor, and the treasurer and CFO. That is consistent with Article IV, Section 8, of the UT Bylaws, which provide in pertinent part “all contracts . . . and other instruments of legal obligation shall be executed by the President or another University Officer after any required legal and fiscal review.” The position of athletic director—which Currie held—isn’t identified as a “University Officer” capable of executing such agreements. Thus, blank signature blocks for the university officers on Schiano’s MOU would tend to support the argument that although “executed,” the agreement wasn’t “fully” executed and therefore isn’t enforceable.

Schiano, however, may argue Currie had sufficient or at least apparent authority to bind the university so that Schiano could legitimately rely on Currie’s signature alone in believing the deal was done. Additional evidence about the university’s previous practice in such circumstances, such as other documents similar to the Barnes MOU, would be necessary to give a more definitive take on Schiano’s chances of success. But you can bet he and his agent are likely to push the issue, given that big money is at stake. A “no cause” termination would bring the MOU’s buyout clause into play. The Barnes MOU provided for a buyout worth $1 million per contract year remaining in the event of a no-cause termination. That was seemingly based on Barnes’ $2.5 million annual salary. Schiano’s MOU was likely worth much more, which would most likely result in a similarly higher buyout. Given the circumstances under which the deal crumbled, it is difficult to see how UT could argue it had cause to terminate the agreement. All facts pertinent to cause, including Schiano’s coaching history and The Washington Post article linking him to the Jerry Sandusky case at Penn State, were all well-known before negotiations began.

If Schiano presses the issue, UT will have to weigh its options in deciding whether to fight or try to negotiate a mutual resolution. That, too, could prove costly. A recent example can be found just down the road in Gainesville, Florida, in the form of (UT’s SEC East rival) the University of Florida’s termination of former head coach Jim McElwain. That termination, which was “for cause,” has reportedly resulted in a settlement paying McElwain roughly $4 million of his $12.9 million buyout. Since Schiano and McElwain reportedly share the same agent, the success of settlement negotiations in other termination cases may embolden Schiano to at least kick the tires with UT to see what he can get. 

Currie’s employment status

The fallout from the Schiano debacle is far from over. Just this past Friday, Currie was “suspended with pay” by Chancellor Davenport. Despite “suspending” and not “terminating” Currie, Davenport hired former UT head coach and Hall-of-Famer Phillip Fulmer to assume the AD duties full-time, effective immediately. The hiring of Currie’s replacement while he is still on staff likely means UT administrators and counsel are conducting an internal investigation to determine whether they can fire him for causea decision that may alleviate the burden of having to pay Currie’s own buyout, which reportedly stands at $5.5 million. Whether the university can establish he acted outside of his authority with regard to the botched hiring of Schiano and his MOU or whether Currie’s desperate “Hail Mary” attempts to hire Mike “the Pirate” Leach to succeed Butch Jones was the final nail in his coffin remains to be seen.

Remember, while all of this potential cash exchange plays out on your Twitter feed, Tennessee has essentially agreed to honor former coach Butch Jones’ $8.25 million buyout. Oh, to have been a football coach where “success” is measured by a committee and under-performance guarantees you money! Whatever, man, just Swing Your Sword.

When the floodgates open, expect water at your doorstep

November 13, 2017 - by: David Kim 0 COMMENTS
David Kim

About a month ago, my colleague Kristin Gray wrote about the breaking Harvey Weinstein scandal and best practices for employers to prevent harassment and discrimination from invading the workplace. And while I have no intention of reiterating any of the excellent points Kristin covered in her piece, it would be ignoring the obvious not to say that a lot has transpired since that breaking news story.

Virtually every day since then, additional allegations of sexual harassment and misconduct have been made against prominent public figures. Not just individuals in Hollywood (which include everyone from executives, producers, writers and actors), but also against politicians, publishers, and editors from various media organizations, news contributors, restaurateurs, and a slew of others. On top of these serious allegations, numerous individuals (both public figures and “regular” individuals like you and me) have used social media to share their own stories or harassment, not only sexually based but also other forms of harassment and bullying within the workplace.

Trending hashtag Metoo on concrete wallIt is not an exaggeration to say that this topic has quite literally been part of our daily news cycle for the past month. And it isn’t hyperbolic to state that employers need to be aware that, as a result, this topic is something they need to be able to address and address properly as harassment claims are likely to increase. There’s a reason why statistics demonstrate that Fair Labor Standards Act litigation increases after changes to wage and hour regulations are debated in the public realm, whether they are implemented or not. Sure, noncompliance is certainly a factor, but so is awareness, which results in empowerment, which results in action.

Now I am not comparing the clearly invidious acts of sexual harassment and other forms of harassment, which should be taken seriously at all times, with general wage and hour law. The reality, however, is that public awareness of these types of harassment allegations has undoubtedly increased the conversation regarding misconduct in the workplace. When celebrities talk about struggling with drug addiction, recovering from a severe medical prognosis, or dealing with another tragedy in their lives, they often want to share their story to motivate or inspire those with a similar struggle. While many hear these stories and are moved by the message, they might not be technically inspired to act since they didn’t experience what the person sharing their message did. But even if it’s not you, there is someone out there who has been motivated by that story in one way or another, whether it’s to kick their habit, resolve to overcome the disease they’ve been diagnosed with, or to simply fight harder despite the tragedy in their lives.

The same goes harassment allegations. It is no coincidence that the floodgates have opened since the Weinstein allegations came to light. People who have experienced similar forms of mistreatment have felt empowered to come forward with their own stories and the sheer number of allegations that have been levied make clear what we already know, that sexually based and other forms of harassment continue to exist in all forms of the workplace.

In March of this year, Senator Al Franken of Minnesota introduced a bill known as the Arbitration Fairness Act of 2017, which seeks to prohibit predispute arbitration agreements of employment, consumer, antitrust or civil rights disputes. Due to the recent spate of allegations regarding sexual harassment, those in favor of the bill have now specifically highlighted how victims of harassment in the workplace would benefit if they were not forced to go to arbitration, but rather could have the benefit of a trial by jury. While there are certainly contrasting arguments regarding the benefits to both parties in arbitrating claims, recent events of the last month demonstrate how social consciousness can affect the discussion of lawmaking.

But social consciousness also affects our everyday lives and workplaces. There can be no doubt that the social discussion surrounding sexual harassment will inspire and empower those in the workplace to also come forward with their stories, as it should. Employers, for their part, must be aware that they must be fully prepared to address any such allegations. Large companies throughout the country have instituted or fast-tracked mandatory harassment training in a direct response to the high-profile allegations in the news. All employers should consider these steps as well. As stated, the floodgates are open and employers must ensure that they timely treat these allegations completely and appropriately, or else risk drowning.

Halloween at work: Don’t get BOOed by your employees!

October 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Halloween can be such a fun holiday for kids of all ages. When October 31st falls on a weekday, as it does this year, ghoulish fun will certainly creep its way into the workplace. How can you, as a human resources professional, ensure that the day is more fun than it is scary? Simple. Just follow a few rules.Halloween theme 3

1: Make any Halloween office festivities totally voluntary

As you know, Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination in the workplace. Even though most people would consider Halloween in 2017 to be largely a secular holiday, it does have religious roots. Be considerate of employees who do not wish to participate in dressing up in costumes or attending Halloween-themed workplace parties. The employee may have a religious reason for not wanting to observe Halloween, and the employee has no obligation to notify the company of his or her rationale for not wanting to participate. Keeping the festivities 100% optional will help prevent any such issues. (As an aside, keep in mind that one or more of your employees may request, as a religious accommodation, to miss work that day, as it is a recognized Wiccan holiday.)

2: Ensure that any Halloween costumes are appropriate for the workplace

As Lili Reinhart recently found out, not all Halloween costumes are created equally. The actress, who stars on the “Riverdale” series (on the CW), tweeted a picture of her planned Halloween costume, which was an all-black demon. The backlash on social media was swift and unequivocal, as the costume appeared to include blackface. Reinhart apologized immediately, stating that she could “see how it was interpreted as being insensitive, completely.”

Other celebrities have also caused debate in recent years, including singer Chris Brown who dressed up as a Taliban member, and Prince Harry, who dressed up as a member of the Nazi party. Such costumes, of course, in the workplace could lead to claims for unlawful harassment. Simply put, be sure that employees understand that all costumes must be workplace appropriate and that the costumes do not stereotype any religion, national origin, gender or race in a negative light.

In addition, employees should be reminded that any costumes should not be too revealing or provocative, and should not contain any type of weapon as an accessory. Finally, costumes should be safe: if the employee works in a job around heavy machinery or where chemicals from a costume could become flammable, then the safety risks outweigh the benefit of fun, and the employer should not allow the costume. When in doubt, ask the employee to go home and change.

3: Be mindful of the professional setting if you plan to allow children to visit the workplace on Halloween

Many employers allow the children of employees, and sometimes even children of customers and suppliers, to visit the workplace after school hours on Halloween and trick-or-treat down the hallways. Although such events can be morale-building and lead to employee bonding, they can also present unintended problems. As a practical matter, be sure that you have communicated this event to all employees and remind them several times prior to the day, so that large or important meetings are scheduled at other times. As cute as the kids in costume are, you do not want to frustrate an important customer or client who needs to be in your offices that afternoon for an important meeting.

Further, if a nonexempt employee needs to leave work to pick up his or her children to attend the event, be sure that you have communicated to the employee whether he or she must use PTO time for this voluntary activity, whether it will be allowed while on-the-clock, etc. Communication prior to the event is important.

With the above in mind, you can ensure that any Halloween-related festivities at your workplace are safe and fun (and uneventful from a human resources perspective!).

Methinks thou doth protest too much! FYI, only ‘reasonable’ opposition is protected

October 24, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

It seems that every day the news is full of stories about employees (whether they are NFL players or Hollywood starlets) protesting unfair treatment. Usually, when an employee complains about discrimination, harassment, equal pay, or other work-related topics, he or she is protected from discipline or termination because the conduct is considered “protected activity” under Title VII of the Civil Rights Act of 1964 and a myriad of other federal and state employment laws.  Hand holding protest sign

Under limited circumstances, however, an employee’s protests may cross the line from protected opposition to unprotected disruption. Specifically, an employee who engages in loud, unreasonable, and disruptive protests at work, even though the action is borne out of an attempt to protest alleged unfair treatment or discrimination, isn’t protected by Title VII. Rather, only reasonable opposition and reasonable protests are considered protected activity. read more…

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

In honor of Labor Day, some time sheet tips to beat FLSA off-the-clock claims

September 05, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Ah, Labor Day. Family barbecues, a trip to the beach, your last chance to wear white, time spent napping and binging on Netflix, or just a simple day of relaxation. However you spent the long weekend, I hope you enjoyed some rest from your labors. As an employment lawyer and a mother, the word “labor” has two rather negative connotations for meas in “labor pains” and, even worse, the “Fair Labor Standards Act.” I will spare you the details of the former and focus instead on the latter in today’s post.  Overtime (2) read more…

HR issues that arise when natural disasters hit

August 29, 2017 - by: Robin Kallor 2 COMMENTS
Robin Kallor

Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events. Some of the more commonly asked questions are addressed below. Notepad with disaster plan on a wooden table.

1. If there is a forced closure of the workplace, must an employer pay its employees their wages during this shutdown period?

Under the Fair Labor Standards Act and applicable state laws, non-exempt employees must be paid for all hours worked. In the event non-exempt employees are not working during this shutdown period, they are not entitled to be paid wages for this period when they perform no work.  There are exceptions to this–for example, if the employer compensates employees under the fluctuating workweek model or if union contracts provide otherwise in unionized workforces. Additionally, some states have “reporting pay” minimums in the event the shutdown occurs after the employees report to work.

On the other hand, exempt employees must be paid their weekly salary for any week in which they perform some work for the employer. Therefore, for shutdown periods spanning less than one week, they must be paid their regular weekly salary for this week even though they were not working during a partial week in which the employer was shut down.

2. May an employer permit employees to work remotely?

Employees may be permitted to work from a remote location; however, employees must ensure that non-exempt employees are paid for all hours worked. Therefore, non-exempt employees must still clock in or provide some form of accounting of the hours that they worked, and the employer’s ability to monitor these work hours is limited.

As to exempt employees, if the shutdown period is a full week, exempt employees would not be entitled to their weekly salary for that full week. If the exempt employee works remotely, that remote work will constitute work performed in that week, thereby entitling the exempt employee for their full weekly salary for that period of time.

3. What happens if the employer’s business is open, but the employees are not able to travel?

Again, under the FLSA, non-exempt employees are entitled to be paid for only the time that they work, regardless of whether the employee do not work because the employer shuts down or the employee cannot travel to work.

Exempt employees are not entitled to be paid for full days in which they perform no work under these circumstances. Therefore, if they come to work late, they cannot be deducted a partial day’s absence; however, if they are absent for a full day, this time constitutes personal time and they are not entitled to their salary for these full days.

4. Can an employer permit an employee to use accrued but unused vacation for this period of shut down if they would not otherwise be entitled to their wages?

Yes. An employer may permit an employee to use their accrued but unused vacation time if they are not able to travel to a workplace which is open or unable to work due to a shutdown.

5. If an employer does pay an employee for the shutdown period, is that time counted toward the 40 hours for overtime purposes?

No. If an employer chooses to pay non-exempt employees for time that they do not work due to a shutdown, that time does not constitute “working time” and thus isn’t counted toward the 40 hours for overtime purposes.

6. What are the protections for employees who need to take time off during this time?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. For example, if an employee is suffering from anxiety due to the hurricane that is corroborated by a medical certification and the employee is eligible for FMLA leave, then the employee is entitled to up to 12 weeks of leave under the FMLA leave.

Additionally, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to activate duty, in support of a contingency operation. Also, the FMLA allows eligible employees to take up to 26 weeks of job-protected leave in a 12-month period to care for a covered servicemember with a serious injury or illness.

In addition to the FMLA, the Americans With Disabilities Act (ADA) and applicable state law mandates that employers provide reasonable accommodation to otherwise qualified individuals with disabilities. An extended leave of absence can constitute a reasonable accommodation. In the event an employee is suffering from some form of disability due to the hurricane (e.g., depression, anxiety, or PTSD) and requests a leave of absence, that must be considered even if the employee is not eligible for FMLA leave or requests a leave beyond the 12-week FMLA leave entitlement.

Moreover, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are part of an emergency services organization (such as the National Guard or a Reserve unit). USERRA prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service.

Finally, when an illness or injury results from the hurricane, applicable state law may mandate paid sick leave.

7.  How can we show concern?

Employers should engage in regular communication with employees where possible so that they are aware of the employer’s expectations. Moreover, safety concerns are paramount to all others. Finally, employees having difficulties coping with the aftermath should be encouraged to use the employer’s Employee Assistance Program (if one is offered) or take advantage of similar alternative services that may be covered under the company’s medical plan.

New media rating seeks to bring common sense to gender stereotyping

July 10, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

When my son was five and constantly arguing and negotiating for extra dessert or whatever it was that he wanted at any given time, people would often say, “You should be a lawyer!” His response was always: “I don’t want to be a lawyer because that’s a girl’s job.” While slightly humorous because lawyers are not stereotypically female, I would always respond that there was no such thing as girls’ jobs or boys’ jobs. Because I was a lawyer, he saw the world through that prism. Despite what kids see in real life–that the world is filled with men and women who do not conform to stereotypes in their careers and in division of labor at home–according to studies by Common Sense Media, movies and television have not kept up with the times; and undoubtedly, media play a huge role in how we all view the world–not just how kids do.  Gender Equality

Common Sense Media is a nonprofit organization that runs a website providing parents and teachers with advice on media and technology for kids. It publishes independent ratings and reviews for nearly everything kids want to watch, read, play, and learn. Common Sense Media is based on the premise that images kids see early in life can have a significant long-term effect on their perception of the world. While much attention has historically been focused on the impact of violent movies, video games, and other media, one of the less discussed areas is on-screen depiction of gender.

In late June, Common Sense Media expanded its rating to include how well TV shows and movies combat traditional stereotypes. It developed the ratings based on research into gender portrayal in the media. The research found that media images have tended to suggest masculine traits are favored over female ones and that girls should focus on their looks. This, in turn, can lead to tolerance of sexual harassment and the reinforced beliefs about what men and women can do, and thus what careers they feel they should choose. A rating of “positive gender representations” will appear with a movie or TV show, which means that the reviewers judged it to prompt boys and girls to think beyond traditional gender roles.

A slew of online comments posted in response to a New York Times article about this new rating system suggest that this rating has been met with some controversy from those parents who have chosen traditional roles, anticipating that it might ultimately alienate parents as seeming judgmental.

Regardless of this controversy over whether movies that depict stereotypical roles or traits for men and women should be devalued by this new rating system, at work, basing employment decisions upon gender stereotypes is illegal. In 1989, the Supreme Court first ruled that gender-based stereotyping violates Title VII. In Price Waterhouse v. Hopkins, the plaintiff claimed that she was denied partnership at her accounting firm based on her lack of conformity to stereotypes about how women should act and what they should look like. Her male co-workers described her as aggressive, foul-mouthed, demanding, and impatient with other staff members. The Supreme Court recognized that making employment decisions based on gender stereotypes is a violation of Title VII of the Civil Rights Act of 1964.

Additionally, although sexual orientation or gender identity are not a listed as protected categories within Title VII’s list, recently, a growing number of federal circuit courts have expanded Title VII’s protections to include sexual orientation and gender identity as protected classes under this sexual stereotyping theory. Because of this, uniform policies have been under strict scrutiny to the extent employer standards reinforce stereotypical gender roles. Historically, under federal law, differing standards based on sex or gender were permitted so long as they did not impose an undue burden, but we are beginning to see a shift in what will be permissible under Title VII as this area of the law develops.

New York City Commission on Human Rights has recently weighed in and issued broad policy guidance on impermissible uniform or grooming standards. Some examples of prohibited rules are as follows: requiring different uniforms for men and women; requiring women to wear makeup; only permitting employees who identify as women to wear jewelry; only permitting employees who identify as male to have short hair or requiring employees to always have long hair pulled back unequally based upon gender.

It remains to be seen how much this new rating will affect sales, which may, in turn, affect future media writing. My personal view as a mother and as an employment lawyer–why not praise media that fight stereotyping and force us all to see the world through the legally required prism!  Isn’t this the first step toward inclusion?

 

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