Thursday, June 15, 2017

Ninth Circuit Rejects Latest Version of Trump’s Muslim Ban on Statutory Grounds, Stating: “Immigration, Even for the President, is Not a One-Person Show”

On Monday, the U.S. Court of Appeals for the Ninth Circuit upheld the Hawaii district court’s nationwide preliminary injunction against President Trump’s revised “travel ban.” This travel ban was Trump’s second attempt at delivering on his bigoted and callous campaign promise to prevent Muslims from entering the United States: it sought to deny entry to all nationals of six majority-Muslim countries and to impose draconian restrictions on refugees, including temporarily banning the entry of all refugees and reducing the cap on refugees for fiscal year 2017 by more than fifty percent.

The revised travel ban largely followed the original Muslim ban’s template, except that it does not include Iraq in its list of majority-Muslim countries, it does not apply to current visa-holders, it does not contain explicit preferences for non-Muslim refugees, and it provides for case-by-case waivers at the discretion of consular or border control officers. Nonetheless, the intent of the revised travel ban is clear, as Trump has repeatedly referred to it as a continuation of his efforts to deny entry to Muslims.
Notably, the Ninth Circuit rejected the travel ban because it overstepped the President’s authority as delegated by Congress under the Immigration and Nationality Act (“INA”), which includes a prohibition on national origin discrimination. This approach stands in contrast to the Ninth Circuit’s prior ruling on the original Muslim ban and the Fourth Circuit’s ruling on the revised ban, which both affirmed lower-court injunctions on constitutional grounds. By avoiding the constitutional questions and deciding the case on statutory grounds, the Ninth Circuit highlighted an alternate legal theory to defeat the travel ban, based on canons of statutory interpretation rather than the more overtly political process of constitutional analysis. No doubt the unanimous three-judge panel of the Ninth Circuit had the conservative-majority Supreme Court in mind when it took this more unassuming approach.

In addition to constitutional claims based on the Establishment Clause of the First Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment, Plaintiffs the State of Hawaii and Dr. Ismail Elshikh also alleged that the revised travel ban ran afoul of the INA by: (1) discriminating on the basis of nationality; (2) ignoring and modifying the statutory criteria for denying entry based on terrorism-related concerns; and (3) exceeding the scope of statutory authority delegated to the President by Congress. 

Article I, section 8 of the Constitution grants Congress the power to “establish a uniform rule of naturalization,” but Congress has delegated some of that authority to the President under the INA. That delegation, however, requires that the President make a finding that the entry of a “class of aliens . . . would be detrimental to the interests of the United States” before denying entry to that group. The Court correctly observed that the Trump Administration had made no such finding that the 180 million nationals of the six countries were inherently dangerous based on their nationality alone. It cited to one of Trump’s tweets to support the position that Trump intended to target countries, not individuals from those countries who had, for example, engaged in terrorist activities or other dangerous behavior. It also cited to leaked Homeland Security reports which had concluded that excluding individuals based on nationality would be ineffective in preventing terrorist attacks. As to the refugee ban, the Court noted that refugees already undergo the most lengthy and involved vetting process of anyone seeking admission to the United States, and determined that the Trump Administration had provided no justification for how suspending or dramatically reducing the number of refugees admitted would promote public safety. By failing to make any such a finding of detriment – beyond xenophobic conjecture – Trump exceeded the authority Congress granted to him under the INA.

Similarly, the revised travel ban was found to violate the INA’s prohibition on national-origin discrimination, enacted in 1965 to eliminate the prior immigration system based on racial quotas – i.e., favoring immigrants from northern Europe and heavily restricting immigration from Asia and Africa. As discussed above, the ban’s emphasis on nationality as the sole criterion for exclusion, as opposed to culpable conduct, could not satisfy the INA’s nondiscrimination mandate, “because it would enable the President to restore discrimination on the basis of nationality that Congress sought to eliminate.” The Ninth Circuit also addressed the fact that the INA contains detailed provisions governing terrorism-related admissibility, which require reasonable grounds to believe that an individual alien is likely to engage in terrorist activity, which would be rendered superfluous by the revised travel ban.

Finally, the Court took a broad view and addressed the scope of the President’s authority under the tripartite framework established by Justice Jackson’s concurrence in the Steel Seizure Case. The Ninth Circuit concluded that “the President took measures that were incompatible with the expressed will of Congress, placing his power ‘at its lowest ebb.’”

In short, once more, Trump and his inexperienced team of white nationalists and corporate cronies have failed to achieve one of their goals because they could not be bothered to do their homework. And the Ninth Circuit – like the Fourth Circuit and various district courts – once again affirmed the role of the judicial branch to ensure that we remain a nation of laws which do not wither in the face of an impulsive, unprincipled, and uninformed Executive.

Given the nationwide injunction and the importance of these issues, the Supreme Court is likely to confront the revised travel ban – possibly in the next three weeks before the end of the current term. When it does, the High Court may find that the Ninth Circuit’s example of constitutional avoidance and rigorous interpretation of the INA is the most prudent way to dispose of the Muslim Ban once and for all.

Thursday, June 8, 2017

Trump Administration Withdraws Guidance to Protect Workers

Trump won the White House by invading the traditional Democratic base – working Americans – promising them greater wages and job security. Renegotiated treaties, clamping down on job exporters, investing in infrastructure-related job creation – these were just a few of his signature promises that attracted the working class Wisconsin, Pennsylvania, and Michigan voters who made President Trump.

Now that Trump is in office, he is singing a different tune – the same old, Republican tune that is only music to the ears of the richest Americans (like Trump and his family). This week, the Trump administration announced that his Department of Labor (DOL) has withdrawn Obama-era administrative guidance which made it more difficult for employers to avoid their responsibilities to workers.

The 2015 guidance adopted an expansive definition of employment under the Fair Labor Standards Act (FLSA) so that most workers would be covered employees, not misclassified as independent contractors. It specifically abandoned the “common law control” test, which focuses on the employer’s control over the employee, in favor of the broader “economic realities” test, which focuses on an employee’s economic dependence on the employer. As a result, most workers were covered under the FLSA and had access to important protections including minimum wages, overtime pay, worker’s compensation, and unemployment insurance.

The Obama administration issued additional guidance in 2016 for joint employers. It broadly defined the scope of joint employment, making it harder for corporations to play a shell game with workers who are just trying to get their hard-earned pay. It specifically required joint employers to aggregate the total hours employees worked for joint employers. Joint employers could no longer claim that an employee worked for Company A for 30 hours per week and Company B for 25 hours per, just to avoid paying her overtime each pay period. Instead, the employee was entitled to receive 15 hours overtime as she actually worked 55 hours per week for the joint employer.

Misclassification affects 10-20 percent of employees and costs them – and states –  hundreds of millions of dollars in unpaid wages and taxes. It affects workers in every industry, from domestic workers to truck drivers. Recent court cases highlight the pervasiveness of misclassification. FedEx settled for $228 million dollars after the Ninth Circuit found that 2,300 delivery drivers had been misclassified as independent contractors. Lyft is paying up $27 million to settle misclassification claims. The Obama administration’s guidance was an essential step to combat this massive problem and protect all workers.  

Withdrawing the guidance will affect middle-class people nationwide. The DOL has now signaled that employee misclassification will no longer be a priority. Employers will again more easily be able to misclassify employees as independent contractors, to avoid paying workers properly and protecting their safety and health. It will also be more difficult to establish a joint employer relationship, and therefore to hold all the involved parties responsible, where workers’ rights are violated. Big corporations love the Trump administration’s withdrawal of the Obama-era guidance – it puts more money in the executives’ pockets, at the expense of their workers.

Moving forward, workers and employment attorneys should pay attention to whether and how DOL enforces misclassification cases and who Trump appoints to the two open spots on the National Labor Relations Board (NLRB). In a 3-2 decision, the Obama-era NLRB adopted the broad interpretation of joint employer. If the DOL does not aggressively enforce misclassification cases, and the NLRB returns to a narrow interpretation of which companies are responsible to workers, everyone will begin to feel the effects of Trump’s abandonment of American workers.  

Monday, June 5, 2017

Seventh Circuit Holds that Discrimination against Transgender Student is Cognizable Sex Discrimination under Title IX and the 14th Amendment

The U.S. Court of Appeals for the Seventh Circuit has affirmed a preliminary injunction requiring a Wisconsin high school to permit a transgendered male student to use the boys’ bathrooms. (Link to the landmark opinion in Whitaker v. Kenosha Unified School District here.) In affirming the preliminary injunction, the Court ruled that the student – Ash Whitaker – could state a claim for sex discrimination based on his transgender status under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment. The decision has wide-ranging implications outside the context of education, particularly for employment law, as the Court described the close relationship between Title IX and Title VII (of the Civil Rights Act of 1964, prohibiting employment discrimination), and largely relied on case law developed under Title VII to reach its conclusion. The ruling is also significant because it comes on the heels of the Trump Administration’s cruel decision in February 2017 to rescind President Obama’s administrative guidance stating that schools should permit students to use bathrooms consistent with their gender identity.

Ash, a high school senior who has just graduated, first came out as a transgender male to his family in eighth grade and began to publicly transition shortly thereafter, a process that included hormone replacement therapy and a legal name change. Ash and his mother repeatedly requested permission for him to use the boys’ bathroom while at school. The school repeatedly denied the requests, telling Ash he could only use the girls’ bathrooms or a staff-only gender-neutral bathroom located far from his classes. Ash did not want to undermine his transition by using the girls’ bathroom, and did not want to draw further attention to himself as the only student with access to the staff-only bathroom (not to mention the fact that using the staff-only bathroom made it impossible to get to class on time).

Ash alternated between restricting his water intake, resulting in adverse health effects, and sneaking into the boys’ bathroom. Ash and his mother continued to ask the school for relief, without results. The school demanded medical documentation, which Ash provided, but, ultimately, the school stated that it could not honor the request unless Ash completed a surgical transition, notwithstanding that the procedure is prohibited for minors. At one point, the school instructed its security guards to monitor Ash’s bathroom use, and he was removed from class for failing to comply with the school’s unwritten and inconsistent policies. Throughout this course of events, Ash’s symptoms of depression worsened, leading to suicidal ideation.

Ash filed suit the summer before his senior year, and obtained a preliminary injunction from the district court which required the school to allow Ash to use the boys’ bathroom and prevented the school from further monitoring his bathroom use. The school then appealed the preliminary injunction to the Seventh Circuit.

The Court (in a unanimous decision authored by Judge Anne Claire Williams) first determined that Ash had made a showing of irreparable harm and that no adequate remedy at law existed, casting aside the school’s argument that monetary relief could make him whole, stating: “We cannot say that this potential harm – his suicide – can be compensated by monetary damages.” The Court then addressed the likelihood of success on the merits in the underlying lawsuit and the balance of harms.

As to Ash’s Title IX claim, the Court looked to the development of sex-discrimination based on sex-stereotyping under Title VII, starting with the Supreme Court’s 1989 Price Waterhouse v. Hopkins decision, in which an employer was found to have discriminated against a female employee because she was perceived as too masculine. The Seventh Circuit also looked to its own en banc decision earlier this year, which established that Title VII also prohibits sexual orientation discrimination based on a sex-stereotyping theory. The argument is straight forward: if discrimination based on an individual’s lack of conformity to established gender norms is sex discrimination, then it follows that discrimination based on lack of conformity to one’s gender assigned at birth also qualifies. The Court noted that both the 11th and 6th Circuits had previously applied Price Waterhouse to determine that transgender discrimination qualifies as sex discrimination.

With respect to the Equal Protection Clause, the Court explained that, because transgender discrimination is sex discrimination, heightened scrutiny rather than rational basis review applies. Sex-based stereotypes are an insufficient basis to meet this heightened scrutiny, and thus the Court found a likelihood of success as to the 14th Amendment claim as well. The Court did not decide whether discrimination based upon transgender status is per se entitled to heightened scrutiny across the board.

Finally, in considering the balance of harms, the Court eviscerated the school district’s privacy arguments as entirely speculative. The Court also pointed to the fact that Ash had used the boys’ restroom for a six-month period without any student complaints (it was a teacher who eventually reported Ash) as evidence that the privacy argument was based on conjecture alone. The argument that transgender individuals’ presence in public bathrooms not matching their birth gender poses a heightened risk to the safety and privacy of other bathroom users has been advanced by opponents of transgender rights as an unsubstantiated scare tactic. As stated by the Court: “Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect privacy and those who have true privacy concerns are able to use a stall.”

Although not the first appellate-court decision to recognize this theory of transgender discrimination as sex discrimination, Whitaker is a significant step in the fight to expand school, workplace, and other civil rights protections for transgender individuals and the LGBTQ community generally. School administrators and employers must not stigmatize transgender individuals based on speculation about the harms to other students and employees. The fact that the decision followed the Trump Administration’s rescinding of the Obama Administration’s bathroom guidance – and declined to consider or mention it – shows that despite the current Administration’s bigoted attempts to roll back the clock on LGBTQ rights, the critical statutory and constitutional framework for protecting those rights already exists. Protections will continue to become more robust through subsequent judicial decisions like this one.

Supreme Court review of transgender bathroom access appears inevitable, whether through this case, Gavin Grimm’s case in the Fourth Circuit, or another. Once again, all eyes will turn to Anthony Kennedy, who will have another opportunity to cement his unique legacy with respect to LGBTQ rights.

Friday, May 12, 2017

California's Public Civil Rights Agency Reaches Agreement with Airbnb to Combat Discrimination

California's Department of Fair Employment and Housing (DFEH) has reached an agreement with Airbnb, the online "sharing economy" platform that allows individuals to rent their homes to guests, that will support ongoing efforts to reduce bias and combat discrimination on Airbnb's platform.

Criticism of Airbnb began with a 2015 Harvard School of Business study that found guests with African-American sounding names had a tougher time renting rooms on Airbnb's platform than guests with white sounding names. In early 2016, DFEH began investigating taking action against Airbnb after reports of discrimination on Airbnb's platform became widespread on social media. 

At the time, Bryan Schwartz Law Associate Logan Talbot was working at the DFEH as a Civil Rights Fellow. Talbot was asked by the agency to research the issue and explore the agency's options for action. Talbot drafted a memorandum for DFEH Director Kevin Kish that recommended pursuing a Director's Complaint against Airbnb, alleging that Airbnb may have engaged in acts of discrimination and failed to prevent discrimination in violation of California's Fair Employment and Housing Act and Unruh Civil Rights Act.

DFEH thereafter filed the Director's Complaint. On April 27, 2017, the DFEH issued a press release stating that the agency had reached a voluntary agreement with Airbnb to combat housing discrimination on Airbnb's platform. Under the Agreement, Airbnb will advise all renters in California who complain of discrimination of their right to file a complaint with DFEH. Additionally, Airbnb will regularly provide reports to DFEH on complaints of discrimination by Airbnb users in California and guest acceptance rates by race and national origin in California. The Agreement also provides that Airbnb employees who review Airbnb Host and Guest complaints will receive training on how to recognize complaints of discrimination and the proper methods for referring discrimination complaints to Airbnb's anti-discrimination team. As part of the agreement with DFEH, Airbnb will also post on its website and email to all California Hosts a notice of the opportunity to obtain free online unconscious bias training. 

The agreement also allows for DFEH to conduct fair housing testing on California hosts who have been the subject or one or more discrimination complaints and have three or more listings on Airbnb's platform. Airbnb has agreed to not interfere with DFEH's fair housing testing and will allow them to create accounts and profiles for such testing.

“We will continue to work collaboratively with Airbnb to prevent racial discrimination by its hosts,” said DFEH Director Kevin Kish. “California is committed to removing all discriminatory barriers in housing, including in new platforms and marketplaces. Fair housing testing is an important and powerful tool in enforcing fair housing laws.” 

Saturday, April 29, 2017

A Single Racial Slur Can Support a Hostile Work Environment Claim

For a harassment claim to be actionable under Title VII of the Civil Rights Act, the workplace conduct “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Employers frequently seek to escape liability for harassment by arguing that the discriminatory conduct alleged by the employee was too minor to create liability.

Now the Second Circuit Court of Appeal, in New York, has ruled that the single use of a racial slur can form the basis for a hostile work environment claim under Title VII, when viewed together with other seemingly “neutral,” i.e. non-racial, harassing behavior. Daniel v. T&M Protection Resources LLC, __ Fed.Appx. ___, 2017 WL 1476598 (2d Cir. Apr. 25, 2017).

In Daniel, an unrepresented employee, Otis Daniel, appealed a district court order dismissing his hostile work environment case against his former employer on summary judgment. Mr. Daniel had alleged numerous incidents of harassment during his 15-month period of employment. The vast majority of incidents alleged were not specifically racist, on their face. But, he also alleged that his supervisor once addressed him as “you fucking nigger.”

The Court held that the district court erred when it determined, as a matter of law, that Mr. Daniel failed to alleged facts sufficient to support a hostile work environment claim based on race. The Court explained, that “[b]ecause ‘some evidentiary basis’ existed for inferring that [a] ‘neutral’ incident was animated by hostility because of Daniel’s race, [the district court should have considered that evidence] as part of Daniel’s racial harassment claim.” Slip Op. at *2. That is, where a supervisor makes a racially-charged statement to his or her subordinate employee, on summary judgment a court should consider that fact together with other incidents the employee alleges were harassing, but not overtly racial in nature.

The Court did not need to rule on the question of whether the “one-time use of the slur ‘nigger’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” Daniel, Slip Op. at *1 (emphasis added). However, the Court of Appeals did conclude that the lower court “improperly relied on our precedents when it rejected this possibility as a matter of law.” Id. at *1. The appellate court explained that Second Circuit case law does “not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Id. at *1. The Court highlighted  dicta in Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) that “‘perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as nigger by a supervisor in the presence of his subordinates.’” Slip Op. at *1 (emph. added by Daniel court).

If you have been the victim of a racial slur, that illuminates the true motivation behind other unfair treatment by an employer, and you want to discuss this with an attorney, contact Bryan Schwartz Law today.

Friday, April 28, 2017

Defeating Chindarah v. Pick Up Stix Releases

California employers sometimes seek to nip wage and hour class actions in the bud by buying off individual class members for nominal payments. At least one poorly-reasoned California appellate decision, Chindarah v. Pick Up Stix, 171 Cal. App. 4th 796 (2009), seems to permit it. In a recent independent contractor misclassification class action brought by Bryan Schwartz Law, Marino v. CAcafe, the primary defendant tried just such a tactic, mere weeks after the case was filed late last year. The corporate manager asked each employee-former employee to sign a release based upon a supposed “restructuring” but failed to disclose the existence of the workers’ just-filed lawsuit. The U.S. District Court for the Northern District of California issued a strongly-worded opinion, invalidating all releases improperly obtained from putative class members by the defendants, despite Chindarah, and ordering related relief because the employer’s “communications with the putative class members concealed material information and were misleading.” Marino v. CAcafe, Inc. et al., Case No. 4:16-cv-06291-YGR, slip op. at 3 (filed Apr. 28, 2017) (full opinion available here).

The court explained that “[w]hile the evidence does not indicate the high degree of coercion present in other cases, the fact remains that [the defendants] communicated with putative class members after the lawsuit was filed, but before they had received any formal notice and before plaintiff’s counsel had been given an opportunity to communicate with them.” Id. at 3. Importantly, the defendants’ “communications did not inform putative class members that there was a lawsuit pending that concerned their legal rights, the nature of the claims, plaintiff’s counsel’s contact information, the status of the case, or any other information that might have permitted them to allow them to make an informed decision about the waiver of their rights.” Id. at 4. This conduct “undermine[d] the purposes of Rule 23 and require[d] curative action by the court.” Id. at 3. To correct the harmful effects of defendants’ improper communications, the court:
·     invalidated all releases obtained from putative class members,
·     prohibited the defendants from requesting any reimbursement of payments made,
·    ordered curative notice be issued to all putative class members regarding their rights and the court’s intervention on their behalf (paid for by the defendants),
·    enjoined the defendants responsible for making the communications from engaging in any further ex parte communications with putative class members regarding the litigation or any release of claims until the court has the opportunity to rule on the issue of conditional certification of the FLSA collective action, and
·   ruled that class members who signed releases in exchange for payments could keep those payments, regardless of the outcome of the case.
Id. at 5.

Workers’ advocates should not hesitate to bring motions for corrective action when defendants attempt to subvert the rights of workers and Federal Rule of Civil Procedure 23 (governing class actions) by embarking on a Chindarah campaign. A court need not find a high degree of coercive conduct on the part of an employer to warrant invalidation of releases obtained from putative class members. If the employer uses misleading tactics to obtain releases from putative class action members – like omitting the fact that a class action has been filed against the defendant for wage violations, and failing to disclose contact information of the plaintiffs’ lawyers – then you may have strong grounds to remedy the defendant’s misconduct. See generally Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981); Retiree Support Grp. of Contra Costa Cty. v. Contra Costa Cty., 2016 WL 4080294, at *6 (N.D. Cal. July 29, 2016) (collecting 8 cases).

Contact Bryan Schwartz Law with any questions about questionable releases of wage and hour claims.

Wednesday, April 12, 2017

Vital Signs of the Rule of Law in California's Workplaces

Republished from California Labor & Employment Law Review, Vol. 32, No. 2, March 2017, Message from the Chair, Bryan Schwartz

Home late again from an out-of-town deposition, I lie very silently next to my three year-old son and smile to hear him breathing. Cracking open the door of my daughter's bedroom, I feel relieved to see her shift slightly while sleeping. I head to bed and listen for my loving partner's heartbeat.
These are the vital signs - the breathing, the gentle movement, the heartbeat. The deposition also - and the many hours it took to prepare for it, the documents my opposing counsel gathered beforehand, the hours we pored over them to learn the facts of the case, and the briefing and hearing that will come soon when we argue our respective points -these constitute the behind-the-scenes lifeblood of the rule of law; and they are also born from love.
This love binds my opposing counsel and me. I sue companies and agencies and people for alleged mistreatment of workers. They defend them. Yet, we are all married to the same system where our respective client's positions are entitled to impartial consideration through a many-layered process, where each of us can be heard and our clients' rights considered against the same body of law. 
We know that sometimes this process is tedious, that it sometimes keeps us away from our loved ones, and that it leaves us sleep-deprived. But, this process keeps America and California alive. By serving this process, we express our patriotism and our love. We know that it takes more than just blood on the battlefield to protect our nation. It takes the law. In our daily practice are the vital signs of democracy.
Even someone as different from me as Dan Burton can agree. He is a Tea Party Republican from Indiana who served for 30 years in the House of Representatives. In 1998, he was seeking appointment of an independent counsel to investigate the Clinton administration and invoked "the need to inform the American people of the threats to our judicial system by an administration which thinks that it is above the law." He said, "No one in this country should be above the law. The law...should be administered equally, whether it is the lowest person in the United States or the person occupying the highest office, the President of the United States."1 Whether or not I agree with his politics, Rep. Burton and I agree about the law's superiority over any individual.
We are in good company. More than two centuries earlier, in The Federalist No. 78, Alexander Hamilton wrote that "the Constitution ought to be preferred to the statute, the intention of the people to the intention I of their agents," thereby fighting for a Constitution that would imbue the judiciary in our nascent republic with the power to interpret the law and the original will of the people. This will exceeds the will of any elected official, or any number of them. We shepherd the judiciary, and the juries of our clients' peers, in this sacred work of nurturing a healthy Constitution. The Bar's Labor and Employment Law Section educates us to better perform this duty-in the most well-informed, ethical, and collegial manner. 
 We know all this, of course, but right now we must remember it every day as labor and employment lawyers in California, listening for democracy's vital signs at all hours. None of us want California workplaces where women are unsafe from harassment and assault, where people with disabilities do not have fair opportunities to contribute, where people of some races and national origins are treated worse than others, where hardworking men and women cannot earn enough to feed their families. None of us want those who violate the law to gain unfair business advantages over those who play by the rules-the rules that are in our charge. Because of us, California employers know how to hire workers fairly, how to pay them lawfully, and how to hold them accountable when they fall short. Sometimes our clients let us down, sometimes we have second thoughts about advice we give, or about a legal strategy we pursue. Our basic commitment to the rule of law, though, persists.
No matter what happens, for the nearly 20 million Californians in the labor force, and many millions more depending on them, nothing could be more important than what we do keeping the organs of our democracy healthy and continuing to shape and enforce a rule of law for the state's workplaces. Though hearing a ping on my phone when an ECF notification comes across is surely not as sweet a sound as my little boy's night time breathing, it is also vital.

1. 144 Cong. Rec. 20416 (Sept. 15, 1998).

Wednesday, April 5, 2017

Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.

Thursday, March 16, 2017

A Muslim Ban by any other name is still a Muslim Ban

           Trump’s sleight-of-hand attempt to disguise his pandering to bigotry, by banning visitors from nations that are 90-99% Muslim, has failed…again. Another Steph Curry-like three-pointer for the Founding Fathers, creating an independent judiciary, a nation grounded in the Rule of Law. As Thomas Jefferson said in the Statute of Virginia for Religious Freedom (which led to the Bill of Rights),"our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry...." Executive Order No. 13,780 (aka the Muslim Ban): Temporarily Restrained.

            Judge Derrick K. Watson: yesterday you occupied just one of 678 district court judgeships authorized by Article III of the Constitution, sitting in one of our most geographically isolated and one of our smallest states, in the District of Hawaii. Today you are a hero, the giant to protect that Constitution against a would-be tyrant, striking down the repackaged Muslim Ban in a strongly-written opinion (read it: here).

             “The Government’s premise is not true,” Judge Watson wrote. How often will we hear these words during the Trump presidency, as he tries to sell us the moon, saying it is really the sun? The Constitution and Bill of Rights that protect, among other things, religious freedom, and prevent establishment of a state-favored religion in the United States (The Establishment Clause), are not a game, Mr. Trump. This is not like real estate – where to bolster your ego you can apparently pretend a 58-story building has 68 stories, as Trump has for decades.   

            "The illogic of the Government's contentions is palpable," Judge Watson said, as Trump’s minions dissembled. The Ban’s apologists tried to say that terrorism would increase by continuing to allow in people from six Muslim countries, based upon two examples: an Iraqi, and a Somalian native who came as a child and later became a citizen. The repackaged ban omits Iraq, and allows an exception for such children. So, your Ban would do nothing worth doing, but would only fan the flames of nationalism at home, and throw gasoline on the fires of anti-American animus abroad.

            Brave Imam, Ismail Elshikh, Ph.D., who stood up for his family, and all Muslims, and for democracy in America, explaining how these shenanigans would keep his mother-in-law, a Syrian national, from visiting, how saddened he and his family have been by the message of the Trump administration, that “the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who hold the same religious beliefs.” Dr. Elshikh’s children “do not fully understand why this is happening, but they feel hurt, confused, and sad.”

            Perhaps the best part of the Court’s decision was that it held Trump accountable for all his bigoted campaign statements, when he telegraphed exactly what he intended with this Muslim Ban. Trump had the temerity to argue, “Courts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Well, that’s just not true, either: “courts may not ‘turn a blind eye to the context in which [a] policy arose.’” When we prove discrimination, we use inferences and circumstantial evidence – very few modern bigots are foolish enough to speak openly of their animosity.

Fortunately, though, Trump is such a fool -  or as the Court put it, more elegantly: “The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Trump said he thinks “Islam hates us,” and that it’s “very hard to separate” the religion from anti-American hatred, and articulated his future policy: “[W]e can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.” He later revealed that he was “morphing” the Muslim Ban into a ban on particular (almost-all-Muslim) territories, calling it “extreme vetting.”

            The Court beautifully summarized regarding the Administration’s disingenuous arguments:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at
Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.
These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

            Thank you, Judge Watson. Today I am proud to be a civil rights lawyer in what is still the United States of America, one nation, indivisible, with liberty and justice for all.

Wednesday, March 15, 2017

California Companies Must Pay Salespeople for Rest Breaks Separately from Commissions

A. B. C. ... Always Be Closing.”

        - Alec Baldwin portraying Blake, Glengarry Glen Ross (1992).

Salespeople paid on commission are ingrained with an urgency to sell every waking minute, as exemplified by Alec Baldwin’s notorious “Always Be Closing” speech in Glengarry Glen Ross. But here in California, that motto needs some refining because two weeks ago a California Court of Appeal held that California-based inside salespeople paid only on commission must also be paid separate and additional compensation for ten-minute rest breaks.[1]

In holding that an employer is required “to separately compensate its sales associates for ... rest periods,” the Court of Appeal relied principally on the plain text of Wage Order No. 7 and a line of cases starting with Armenta v. Osmose, Inc., which “held that employers cannot comply with minimum wage obligations by averaging wages across multiple pay periods; instead, [t]he minimum wage standard applies to each hour worked by [employees] for which they were not paid.”[2]

The Vaquero court traced the holding in Armenta forward to its logical extension in Bluford v. Safeway Stores, Inc., where that court held that Safeway failed to meet its obligations to pay its truck drivers for all hours worked because it only paid its drivers based on “number of miles driven, the time when the trips were made, and the locations where the trips began and ended,” instead of also separately compensating its drivers for each ten-minute rest break they were entitled to take.[3] While the employer argued that its compensation system already incorporated payment for rest periods, the court was not persuaded because “[e]ven if that is so, it is akin to averaging pay to comply with the minimum wage law instead of separately compensating employees for their rest periods at the minimum or contractual hourly rate ... [which] is not allowed under California labor law.”[4]

Applying Armenta and Bluford to inside salespeople, the Vaquero court found that the employer’s compensation system for its salespeople failed to separately compensate for paid rest breaks (i.e., for non-productive time), and thus violated the California Labor Code requiring employers to pay for employees’ ten-minute rest breaks.[5] In particular, the Vaquero court reasoned that the draw system maintained by the employer – permitting the employer to claw back advances on future compensation if its salespeople did not exceed the minimum weekly pay – acted, “[a]t best ... [as] interest-free loans.”[6] As the Court explained, “when [the employer] paid an employee only a commission, that commission did not account for rest periods. When [the defendant] compensated an employee on an hourly basis (including for rest periods), the company took back that compensation in later pay periods. In neither situation was the employee separately compensated for rest periods.”[7] Accordingly the Vaquero court concluded that such a commission system “effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”[8]

The Vaquero court noted that its decision would not stand as an obstacle to an employer using a lawful commission-based compensation system to incentivize its salespeople, nor would it “lead to hoards of lazy sales associates” because, like the company in Vaquero, employers can always require employees to “meet minimum sales expectations” and subject ineffective salespeople to “disciplinary measures up to and including termination.”[9] In other words, California salespeople can continue to always be closing, so long as their employers pay them separately for their ten-minute rest breaks.[10]
Bryan Schwartz Law previously blogged about a related case last year, which held that the same employer could not escape classwide liability for maintaining a compensation policy that failed to provide for minimum and overtime wages and related compensation when employees performed non-exempt work such as cleaning up the employer's stores or moving the employer's furniture products.

Bryan Schwartz Law also previously blogged about an important California Supreme Court decision issued last December, Augustus v. ABM Security Services, Inc., which clarified that an employer cannot require an employee to be on call during his or her ten-minute rest break without receiving an additional premium payment in the event that the employer interrupts the employee's ten-minute rest break (as explained by the California Supreme Court: "A rest period, in short, must be a period of rest.").
If you are an inside salesperson in California who is paid solely on commission without separate compensation for your ten-minute rest break, please contact Bryan Schwartz Law.

[1] Vaquero v. Stoneledge Furniture LLC, No. B269657, 2017 WL 770635, at *5 (Cal. Ct. App. Feb. 28, 2017) (“The parties disagree, however, whether California law, including Wage Order No. 7, required Stoneledge to separately compensate its sales associates for such rest periods. We conclude it does.”) (“Vaquero”).
[2] Id. citing (Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 324 (2005)).
[3] Bluford v. Safeway Stores, Inc., 216 Cal. App. 4th 864, 872 (2013).
[4] Id.
[5] Labor Code § 226.7(b); Cal. Code Regs. tit. 8, § 11070(12)(A) (“Industrial Wage Commission Order No. 7”) (“Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”)
[6] Vaquero at *9.
[7] Id. at *10.
[8] Id. at *9.
[9] Id. at *11.
[10] Id.