Retail Labor and Employment Law

Retail Labor and Employment Law

News, Updates, and Insights for Retail Employers

Category Archives: Employment Litigation

Subscribe to Employment Litigation RSS Feed

Second Circuit Extends the Reach of the Cat’s Paw

In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision.  On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.

The plaintiff, an emergency … Continue Reading

EEOC Files First Sexual Orientation Discrimination Suits – Employment Law This Week

The top story on Employment Law This Week is the EEOC’s filing of its first sexual orientation bias suits.

Last year, the Equal Employment Opportunity Commission interpreted Title VII of the Civil Rights Act to prohibit discrimination against an individual for sexual orientation. The EEOC concluded that sexual orientation discrimination is a form of unlawful gender discrimination. This month, the agency filed two landmark federal lawsuits seeking to enforce its interpretation of the statute for the first time. The agency is suing on behalf of workers at a company in Baltimore and one in Pittsburgh for harassment based on sexual … Continue Reading

EEOC’s Recent Lawsuits Assert That Unlawful Sex Discrimination Under Title VII Includes Sexual Orientation Discrimination

Laura C. Monaco

Laura C. Monaco

This week, the EEOC filed its first two federal lawsuits that frame allegations of sexual orientation-based harassment and discrimination as claims of unlawful “sex discrimination” under Title VII of the Civil Rights Act of 1964.

In EEOC v. Pallet Companies the EEOC alleges that an employee’s night-shift manager harassed her because of her sexual orientation by making repeated offensive comments (sometimes accompanied by sexually suggestive gestures), such as “I want to turn you back into a woman” and “I want you to like men again.”  According to the Complaint, the employee was discharged after she complained about … Continue Reading

Retaliation, ADA Charges Rise – Frank C. Morris, Jr. Quoted in SHRM

Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith.  The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.

Following is an excerpt:

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the … Continue Reading

Arbitration Clauses in Employment Handbooks With Contract Disclaimer Are Unenforceable

In a decision that will affect New Jersey employers seeking to arbitrate employees’ claims, the Appellate Division, earlier this month, in Morgan v. Amy E. HatcherRamours Furniture Company, Inc., held that arbitration clauses contained in employee handbooks are unenforceable where the handbook also includes a disclaimer that it does not create a contract.[1]  Accordingly, New Jersey employers whose handbooks currently include arbitration clauses should consider carefully, replacing them with either arbitration clauses in an employment application, and/or with a stand-alone agreement.

Given the potential for additional disputes, however, part of that process should include determining whether and how to implement … Continue Reading

The NRF Urges D.C. to Toss Scheduling Law – Employment Law This Week

Employment Law This Week – Epstein Becker Green’s new video program – has a story about an effort to unite retailers against a restrictive scheduling law in Washington, D.C.

The National Retail Federation issued a letter urging the city council in D.C. to abandon new scheduling legislation for retailers and restaurants. The proposed law would require businesses to post schedules three weeks in advance, with heavy penalties if they make any changes to the posted schedule. The NRF argues that this legislation removes the benefit of flexibility for employees, and that it places businesses at a competitive disadvantage against similar … Continue Reading

On-Call Scheduling and Wage Theft – Employment Law This Week

Employment Law This Week – a new video program from Epstein Becker Green – has a story this week about on-call shifts and the challenges they’re facing in court.

Both BCBG and Forever 21 have been hit with class-action wage theft suits over on-call scheduling. Many retailers are ending this practice, including Urban Outfitters, which was cited for possible violations of New York’s requirement to pay hourly staff for at least four hours when they report for work.


Click above or watch on YouTube or Vimeo – or download: MP4 or WMV.

 … Continue Reading

Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time

Regarding the Supreme Court’s Integrity Staffing Solutions v. Busk opinion, issued today, our colleague Michael Kun at Epstein Becker Green has posted “Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time” on one of our sister blogs, Wage & Hour Defense.

Following is an excerpt:

In order to prevent employee theft, some employers require their employees to undergo security screenings before leaving the employers’ facilities. That is particularly so with employers involved in manufacturing and retail sales, who must be concerned with valuable merchandise being removed in bags, purses or jacket pockets.

Often in … Continue Reading

Retail Industry Labor and Employment Cases in the Supreme Court’s Current Term

While by most accounts the current term of the Supreme Court is generally uninteresting, lacking anything that the popular media deem to be a blockbuster (the media’s choice being same-sex marriage or Affordable Care Act cases), the docket is heavily weighted towards labor and employment cases and a few that potentially affect retail employers in particular. They are as follows.

The Court already has heard argument in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, which concerns whether the Portal-to-Portal Act, which amends the Fair Labor Standards Act, requires employers to pay warehouse employees for the time they spend, … Continue Reading

David W. Garland to Moderate General Session at NRF’s 2014 HR Executive Summit

David W. Garland, Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a member of the firm’s Board of Directors, will moderate “It’s In The Bag – Summary of Bag Check Litigation And Strategies For Minimizing Risk” at the National Retail Federation Human Resources Executive Summit at the Hard Rock Hotel in Chicago, Illinois on October 15, 2014.

During this general session, retailers who are grappling with employee bag check litigation discuss what the industry can expect in litigation over employee compensation for time spent in bag checks to deter shrinkage and how retailers can minimize risk … Continue Reading

EEOC’s 2013 Report Shows Record Breaking Damage Assessments Against Employers

By:  Jamie Friedman

This week, the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing federal employment anti-discrimination and retaliation laws, released its Fiscal Year 2013 Performance Accountability Report (the “Report”). According to the Report, in 2013, the EEOC secured a record-breaking $372 million dollars from private employers for workplace discrimination, despite receiving 6,000 fewer charges of discrimination during FY 2013 (with a total of 93,727 charges) as compared to the prior year, and despite resolving 14,000 fewer cases than in FY 2012.

The EEOC continues to focus on systemic enforcement programs, which allows it to do more with … Continue Reading

California’s Leave Laws May Create the Perfect Storm for Employers

In this month’s Take 5 newsletter, I discuss how California is unique for making numerous types of protected leaves of absence available to employees.  All of these options can add up to a lot of protected leave.

Following is from the introduction:

National employers often find it challenging to navigate the employment laws of the various states in which they do business. In most cases, the easiest solution may be to adopt national policies that follow federal law. This process will not work, however, for employers that do business in California, where state protections are often more expansive and … Continue Reading

California Legislature Brings Prevailing Party Attorneys’ Fees Provision for Wage Claims in Line with Rule in Discrimination Cases

By Jennifer Nutter

Until recently, California retail employers could leverage the threat that employees suing them for nonpayment of wages (including sales commissions), fringe benefits, or health and welfare or pension fund contributions would have to pay the employer’s attorneys’ fees in the event that the claim was unsuccessful.  Labor Code Section 218.5 provided that the court “shall” award the “prevailing party” its attorneys’ fees in such cases (assuming a request was made at the beginning of the suit).

It had long been argued by attorneys representing employees in these types of cases that Section 218.5 should be interpreted to … Continue Reading

More About T.G.I. Friday’s Family Leave Violations

Our blog contributor Anna A. Cohen, an Associate in the Labor and Employment practice at Epstein Becker Green, was quoted in an article titled “TGI Fridays Busted for Family Leave Violations.”

Following is an excerpt:

The leave policy of TGI Fridays violates the Family and Medical Leave Act, and the popular restaurant chain has agreed to change its company-wide policy and pay one employee back wages, according to the Department of Labor (DOL).

The DOL announced the company’s agreement on Aug. 7, following an investigation of a TGI Fridays restaurant in Shreveport, La. There, an employee took … Continue Reading

Domestic Violence Leave Law: New Jersey Enacts the SAFE Act

By Laura A. Stutz

Earlier we posted about the increase in domestic violence and the reauthorization of the Violence Against Women Act, which was extended in February 2013, and expanded to provide coverage to both male and female victims of various types of domestic violence.  (See With Domestic Violence Increasing, What Should Employers Do?”)  A growing number of states have followed the federal lead and undertaken steps to protect domestic violence victims.  On July 17, 2013, New Jersey joined those states and enacted the New Jersey Security and Financial Empowerment Act (S-2177) (“SAFE Act”) to protect victims … Continue Reading

Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII

By Julie Saker Schlegel

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII.  Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII. 

Under long-standing precedent (Faragher and Ellerth), whether an … Continue Reading

The Ninth Circuit’s Opportunity to Clarify California’s Suitable Seating Requirements

by Lisa M. Watanabe

In recent years, retailers, grocery stores and banks have been hit with a wave of lawsuits over California’s suitable seating requirements set forth in §14 of the Industrial Welfare Commission’s Wage Orders.  (See http://www.dir.ca.gov/iwc/wageorderindustries.htm for § 14 in 16 of the 17 industry-specific Wage Orders).  Despite the surge in lawsuits, there continues to be several unanswered questions regarding the interpretation of subsections (A) and (B) to §14 which state the following:

  1. All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
  2. When employees are not
Continue Reading

Court Finds Continuing Duty Exists to Engage in Interactive Process with Employees Who Exhaust Medical Leave

By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff … Continue Reading

Forever 21 May Pursue Employment Claim in Arbitration

By Amy Messigian

Last month, the California Court of Appeal ruled that a former employee of Forever 21 must try her claims against the retailer in arbitration, enforcing the company’s employment arbitration policy and reversing a lower court decision finding the agreement unconscionable under California law.  The plaintiff, Maribel Baltazar, alleged that she had been discriminated against by the retailer due to her race and sexually harassed by a supervisor and coworker.  She filed a complaint against Forever 21 and several of its employees in the Los Angeles Superior Court and the retailer moved to compel Baltazar to arbitration.

Reversing … Continue Reading

Watching Your Watchman: A Cautionary Tale

By William Stein

In rolling out arbitration policies, retail employers should heed the recent California Court of Appeal decision Gorlach v. The Sports Club Co. That case gives employers reason to be cautious when asking employees to sign agreements requiring them to arbitrate any disputes arising out of their employment.  In that case, the trial court found the former Director of Human Resources, who was responsible for obtaining employees’ signatures on a mutual agreement to arbitrate claims, intentionally misled the company into believing that had signed the agreement when she had not.  Nevertheless, it denied the company’s motion to … Continue Reading

Get the Door: It’s a Vicarious Liability Lawsuit

By Amy Messigian

On October 11, 2012, the California Supreme Court granted review of Patterson v. Domino’s Pizza to address the circumstances in which a defendant franchisor may be held vicariously liable for tortious conduct by a supervising employee of a franchisee.

Like many fast food chains, Domino’s Pizza (“Domino’s”) is a franchising operation in which individual franchisees operate storefronts under the Domino’s name.

In Patterson, the plaintiff, a sixteen-year-old employee of a Sui Juris, a Domino’s Pizza franchisee (“Sui Juris”), alleged that she was sexually harassed and assaulted at work by an assistant manager of the store.  She … Continue Reading

A Whole New World of Religious Discrimination

By Amy Messigian

On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law.  The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.

The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious dress practice or religious grooming practice.  Inasmuch, retail employers may not … Continue Reading

Clarification Of California’s Obscure “Suitable Seating” Requirement Should Be Forthcoming In Two Pending Cases

By: Michael S. Kun, as appeared on the Wage & Hour Defense blog

Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is currently before the Ninth … Continue Reading

Prepare Employees for Black Friday and Beyond

Black Friday.jpgBy Jennifer Barna

As shoppers and retailers get ready to celebrate “Black Friday” —  the kickoff to what we hope will  be a busy holiday shopping season —  it’s a good time for retail employers to review their policies on timekeeping and to ensure that non-exempt employees know how to record their working time.  Where is it not prohibited by state laws concerning meal and other breaks, employees may sometimes end up missing all or part of an unpaid meal break due to the demands of a busy sales floor. Employers need make sure employees are properly compensated for time … Continue Reading

.