A business development and communications manager of an international law firm is suing her former employer over claims that she was laid off because of her pregnancy, age, and gender. Plaintiff Cortney Nathanson worked at Jones Day, an international law firm that was founded in 1893. It is the largest law firm in the United States and one of the ten largest law firms in the world.
What is the Lawsuit About?
Nathanson was 44 years old when she left Jones Day last year after having her baby. She went on maternity leave in October 2014 and was supposed to go back to work in January 2015. Nathanson extended her maternity leave for two months in early 2015 following her postpartum depression. Her complaint alleges that her work was unnecessarily scrutinized upon her return and that her supervising partner misrepresented the urgency of various projects in order to dupe Nathanson to misdirect her focus.
Nathanson worked at the firm for 13 years. Her duties included handling client proposals, events, client research, lawyer coaching, among other duties. She worked at Jones Day’s New York office. Nathanson made $280,000 a year.
Nathanson’s complaint alleges she was one of five women who were over 40 years old when they were fired as part of a firm-wide restructuring. She was allegedly given a release from Jones Day offering her almost $50,000 in exchange for a release of all claims against the firm, which she refused to sign.
Nathanson’s pregnancy, age, and gender allegations are all based on claims of discrimination.
When a woman has a baby, she’s permitted to leave work for a specific amount of time. This leave of absence is known as maternity leave. While New York State does not have a maternity leave law, many employees, both men and women, are entitled to request up to 12 weeks of unpaid leave per year to care for their newborn child.
A woman is also entitled to take an additional time off for disability if she is actually unable to work due to pregnancy or childbirth. The maximum period of disability under the law is 25 weeks, but it requires the woman submit medical documentation to support her claim.
In general, pregnancy discrimination occurs when an applicant or existing employee is treated unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Similarly, age discrimination occurs when an applicant or employee is treated less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are 40 years or older. Gender discrimination involves treating an applicant or employee less favorably because of his or her gender.
What are the Chances Nathanson Will Prevail?
Based on the facts of this case and the legal manpower of defendant Jones Day, they will probably file a motion for summary judgment. A motion for summary judgment is a request for the court to rule that the other party has no case. It is a complicated legal motion filed by the defendant. If granted, it means the case will be thrown out altogether.
Jones Day will argue that they had non-discriminatory reasons for letting Nathanson’s go – namely, her work had become inadequate, perhaps her attitude affected her work product, among other non-discriminatory reasons.
To defeat a summary judgment motion, all a plaintiff needs to do is demonstrate that there is a “dispute as to a material fact in the case.” In other words, there must be disagreement about a fact regarding the case; legally, it’s a very low threshold. Here, Nathanson would argue that the non-discriminatory reasons are a mere pretext for the real reason for her firing, whether her pregnancy, age, gender, or combination of all three. What is important to note that the law doesn’t require Nathanson to prove that discrimination was the purpose for her firing at the summary judgment stage. Instead, she just needs to show that there’s a dispute as to the discrimination issue, and the case will go forward.
Nathanson can likely defeat a summary judgment motion, but further assessment of the facts of her case would be required to determine whether her claims will prevail at trial. Most cases settle before trial for undisclosed amounts.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
Would you accept a job if you weren’t certain what your hours would be? What if you needed to be paid, but were told not to come to work? Forever 21 is being sued for scheduling their minimum wage retail employees for on-call shifts.
However, Forever 21 is not alone. Gap, Old Navy, Victoria’s Secret, Banana Republic, Pac Sun, and Tilly’s have all been sued for the same thing. What’s more, the law firm which brought several of these lawsuits has stated that there are several more to come.
What Is an On-Call Shift?
The concept of being on-call is one that many people are already familiar with—although usually in the context of a doctor or surgeon who can be called to see a patient at any time.
On-call shifts for retail employees are similar in practice, if not necessity. Essentially, a retail employee assigned to an on-call shift must call their employer an hour or so before their on-call shift begins and their employer tells them whether or not they need to come in and work.
These sort of shifts cause serious issues for employees as they require them to block out sections of their day that they may or may not get paid for. Beyond the obvious inconvenience, these on-call shifts require unneeded or last minute child care, make it impossible for a student employee to schedule classes, and prevent employees from accepting work at a second job as they can never know whether they’ll be required to work an on-call shift.
There is federal law requiring standby pay where an employee is required to remain on or near an employer’s premises and cannot use that time standing by for their own purposes. For instance, a firefighter playing checkers at the firehouse while waiting for an alarm would receive standby pay. Typically, a case involving standby pay would require a showing of, among other things, how close the employer required the employee to stay to their place of work. On-call shifts generally have no geographic requirements whatsoever, so standby time laws don’t apply to them.
New York has laws requiring that any employee scheduled to report for work on a day must be allowed to work a minimum of four hours or the number of hours in a regularly scheduled shift—whichever is less. California has law requiring “reporting time pay” which requires any employee given an on-call shift that they don’t work to be paid half of a normal day’s wages—but not more than four hours or less than two.
Other states with laws dealing with on-call shifts include: Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington, DC. Often, case law has held that a requirement to report requires a requirement to physically show up at work. However, California has recently sent a lawsuit on that very issue up to the 9th Circuit Court, which will likely make a ruling on the issue very soon.
As it stands, the only place with a law outright banning the practice of “just-in-time” on-call scheduling is San Francisco—requiring employers to give employees schedules with two weeks’ notice. However, California, New York, Connecticut, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minnesota, Oregon, and D.C. all have pending legislation on the issue—albeit with each state having different standards and approaches.
Even if these pass—and the D.C. legislation seems on the cusp—many states will still have no law whatsoever to stop companies from requiring their employees to stress over whether they’ll actually be working on any given day they’re scheduled. However, there are many who are working to end the practice.
States Taking Action
In 2015, New York Attorney General Eric Schneiderman sent out a series of letters requesting information about on-call shifts from businesses including Abercrombie & Fitch, J. Crew, Gap, Urban Outfitters, Pier 1 Imports, and Bath & Body Works. All the businesses who were sent a letter either agreed to stop using the on-call shifts or denied ever using them in the first place
Just a few months ago, Mr. Schneiderman sent another set of letters, this time to Aeropostale, American Eagle Outfitters, Coach, David’s Tea, Forever 21, PacSun, and Vans. What’s more, the New York Attorney General’s letters where accompanied by letters from the attorney generals of eight other states and Washington D.C—all seeking an end to on-call shift scheduling. These other attorney generals have sent letters to businesses such as Payless and Walt Disney Co.
Business Taking Notice
This concerted effort by the attorney generals of so many states has sent a message to businesses. There are people interested in prosecuting unfair scheduling and people who will make legislation stopping on-call shifts a priority. Legislation explicitly protecting against such scheduling is close to becoming a reality in several states. In response to the letters and added pressure, many companies such as Urban Outfitters and Victoria’s Secret have agreed to stop using on-call shifts nationwide. This agreement also extends to all of these companies’ subsidiaries.
Many critics of the rules have pointed to the two weeks scheduling notice requirement in San Francisco’s laws as overly onerous. However, these critics speak of the law as if it had no leeway whatsoever. The law only applies to retail chains with at least 40 stores worldwide and 20 or more employees—it doesn’t target small restaurants with a few employees that may need more wiggle room in their scheduling. It requires one week notice for any changes to schedule, but has a slew of exceptions including unexpected issues, shift trading, or employees calling in sick and needing to be replaced.
On-call shift scheduling is not a necessary business practice. There are numerous global retail chains that get by just fine without it. The legislation restricting the practice is not overly onerous regulation, coming down hard on business. It is protection allowing employees to live their lives without the stress of being unable to plan their lives.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
Over the last decade there has been a nationwide trend of changing the rules when it comes to workers’ compensation. There has also been a trend of these changes not being in the best interests of the employees workers’ compensation seeks to protect. If you were told that Florida has substantially limited the amount an employee’s attorney can receive in fees in a workers’ compensation case, you’d probably think that Florida was bucking this unfortunate trend. What if I told you that this was actually a serious blow against employees in workers’ compensation cases…and the Florida Supreme Court agrees?
Attorney Fees in Workers’ Compensation Cases
So I’m obviously crazy, or at a minimum, a lawyer trying to pull the wool over your eyes. How could lowering attorney’s fees be a bad thing? The answer lies in the nature of fee agreements in worker’s compensation cases and how attorney fees work when an employee wins a workers’ compensation case.
In most states, the law limits a lawyer’s fee to a percentage of the amount their client, the employee suing, receives in workers’ compensation benefits. This way, hiring an attorney can’t cost more than the employee receives out of their services. However, despite this, attorneys will still track of their hours and tell clients their hourly rate.
Many states allow for situations where the employer or the employer’s insurer essentially pays the employee’s attorney fees. This usually occurs where the employee wins the case after the employer substantially slowed down the legal process—often by attempting to litigate the employee into the ground. In most states, the fees the employer has to pay aren’t subject to the limitations that would apply if the employee was paying. This means that, when an employer is particularly aggressive in a case, they run the risk of getting stuck with the full bill based on the hours they made the attorney work.
Florida Fees: A Trip Down Legislation Lane
Rules requiring employers to pay their employees attorney fees in certain situations have been a part of Florida law since 1941. Statutory limitations on attorney fees have cropped up in Florida law for nearly as long. Percentage based caps on attorney fees have been repeatedly introduced in statutes passed by Florida legislators, only to be subsequently rejected by the Florida courts.
Each time a court has questioned a statute requiring percentage caps, the Florida legislators have tightened their grip and made a stricter version of the law. In 2009, Florida legislators introduced the current, and strictest, version of the law. The 2009 version removed any mention of a requirement of “reasonableness” in fees, instead requiring all fees to follow a percentage formula in the statute. The statute left no way to dispute the statutory scheme for attorney’s fees. The only awards that could be accepted by an attorney, or even awarded by the court, were fees capped at a percentage based on the amount and duration of the award for benefits. Florida law actually made it a crime for a lawyer to accept any other type of fees, whether their client agreed to them or not. Most importantly, the new statute applied these caps in almost every situation where an employer would have to pay an award of attorney fees to their employee.
The Case of Castellanos
This new version of the law was the point of contention in the recent Florida Supreme Court case Castellanos v. Next Door Company. The case started as a fairly straightforward workers’ compensation case. Marvin Castellano was injured on the job, and Next Door authorized him to seek medical treatment. The doctor Castellano’s employer sent him to said he had injuries to his head, neck and right shoulder. The doctor recommended a course of treatment. However, Next Door and their insurer Amerisure refused to authorize the recommendations of their own doctors. Castellano sought benefits in court.
This is where things got nasty for Mr. Castellano. Next Door and Amerisure raised, according to the Florida Supreme Court, between 13 and 16 defenses refuting Mr. Castellano’s claims. His attorney worked around 107 hours refuting these defenses while Next Doors attorneys worked 113 hours.
When the dust settled, Mr. Castellano was victorious. He received his benefits of $822.70. Even better, he was awarded attorney fees due to Next Door’s vigorous refutation of his claims. Castellano’s attorney asked for the value of his hours worked—$36, 817.50. However, with his recovery capped to a percentage of benefits by statute, the attorney fees paid by Next Door were slightly less than this—$165.54. This is an equivalent to $1.53/hour. To put that in context, the average attorney fee is $200-$400/hour.
However, while many experts testified to the “manifest unfairness” of this award, the Florida Supreme Court didn’t make its ruling based on “unfairness.” A lawyer is free to simply not represent a client with a case that won’t make money. Instead, the court found the statute unconstitutional for violating due process.
Due Process in Paying What’s Due
Due process is a Constitutional right, protection against being deprived of life, liberty, or property without due process of law. The Florida statute regarding attorney fees workers’ compensation cases required attorney fees to always match the amount provided by the formula in the statute. There was no way a court or party could present evidence to change this amount. The Florida Supreme Court took issue with this, stating that this made the statute violate constitutional due process as an irrebuttable presumption.
An irrebuttable presumption is where a law says that something will always be the case, regardless of any evidence to the contrary. They are generally considered constitutional no-nos. The Florida Supreme Court said the statute stated that its formula would always produce a reasonable fee.
However, if the goal of the statute was to standardize and prevent excessive fees, it failed. The statute also had the possibility to issue unreasonably high fees where a lawyer received huge benefits on a simple case.
As the statute didn’t actually achieve its goal, there wasn’t a reasonable basis for such an unyielding rule. In fact, the court argued the scheme created more difficulties than it solved. When an employer or insurer can be certain that they will never be held responsible for greater attorney’s fees than the statutory amount, there is no disincentive against attempting to bury a plaintiff under numerous defenses and filings.
With the Florida Supreme Court ruling the statute unconstitutional as it was, the current statute couldn’t continue as law.
So What's Next?
Castellanos wasn’t the only case with this issue. The Florida Supreme Court noted that they had 18 other cases dealing with very similar fact patterns. Without the potential of a reasonable attorney fees award, there was nothing to stop employers from denying workers’ compensation, then drowning that employee in defenses they couldn’t hope to overcome without legal assistance.
The Florida Supreme Court’s change won’t let lawyers steal benefits out from under the nose of unsuspecting clients. Instead, it will protect those clients against employers looking to abuse the complexity of workers’ compensation claims.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
Ever heard of the Civil Rights Act? Of course you have; it’s one of the most important pieces of legislation in our history. It prohibits discrimination based upon race, color, religion, sex, or national origin. However, it doesn’t specifically protect from discrimination based upon sexual orientation (or transgender for that matter).
The Equal Opportunity Commission (EEOC) is the governmental entity responsible for enforcing compliance with the Civil Rights Act. Although it has not been specifically enumerated within the Act, the EEOC considers sexual orientation as a protected class and they’re taking steps forward to ensure companies can’t ignore their decision.
Lawsuits from Baltimore and Pittsburg Companies
Yolanda Boone, a former employee of Pallet Companies, alleges she was terminated after complaining of being harassed because of her sexual orientation. Boone was known to her coworkers as a lesbian and, as a result, was continually harassed by her shift supervisor Charles Lowery. According to Boone, Lowery would say things such as, “I want to turn you back into a woman, “ “Are you a girl or a man?” and often quoted biblical quotes that referenced only a man and woman should be together—not a woman and a woman. Boone says once she complained, she was asked to resign and when she refused, she was fired.
The 2nd suit involves a former telemarketer, Dale Baxley, for Scott Medical Health Center. Baxley’s suit alleges his manager, Robert McClendon, used antigay slurs when referring to Baxley and that McClendon, “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’” These are just a few of the slurs Baxley claimed McClendon used before he resigned after the company’s president refused to do anything to stop the harassment.
Each complainant seeks punitive and compensatory damages against the companies, as well as orders from the court requiring the companies to end discrimination and take steps to prevent any future harassment.
EEOC Says Sexual Orientation is Protected under Sex Discrimination and Federal Courts Will Likely Give Significant Deference to the Commission’s Ruling
In a complaint brought by an air traffic control specialist against Transportation Secretary Anthony Foxx in Florida last year, the EEOC officially ruled, “Allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”
Not only does the Commission believe sexual orientation is protected, but in the 2012 case brought by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC declared transgender workers are protected under sex discrimination.
While it’s ultimately up to the Supreme Court to issue any definitive decision on the issue, the EEOC believes, “The courts have gone where the principles of Title VII have directed.” Further, in the past, federal courts have typically given significant deference to the EEOC’s decisions.
It’s Only a Matter of Time
It’s been slow, but there’s been a progressive movement towards equality for the LGBT community and there’s no doubt the courts will find their way towards a decision in line with the EEOC. In 1965, the Supreme Court found, in Griswold v. Connecticut, that fundamental rights found within the 14th Amendment’s Due Process Clause
“extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs…”
In 2003, the Supreme Court struck down a Texas law, Lawrence v. Texas, which prohibited certain forms of intimate sexual contact between members of the same sex. Justice Kennedy, in a landmark majority opinion, stated that the law attempted to:
“…control a personal relationship that…is within the liberty of persons to choose without being punished.”
Finally, in 2015, the Supreme Court ruled in favor of gay marriages, Obergefell v. Hodges, stating,
“the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Although Obergefell dealt with marriage, their decision goes to the very core principles of individual autonomy and shouldn’t apply any different in workplace discrimination. With the historic trend of the Supreme Court rulings, it’s only a matter of time before sexual orientation and transgenders becomes legitimized as protected classes against sex-based discrimination.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
The Oklahoma courts have been methodically dismantling parts of a sweeping overhaul to workers’ compensation made in 2013. Just a few weeks back, the Oklahoma Workers’ Compensation Commission ruled that a provision of the overhaul which allowed employers to write their own workers’ compensation plan violated Oklahoma’s State Constitution. Now, in the case of Maxwell v. Sprint PCS, the Oklahoma Supreme Court has ruled that another provision of the 2013 workers’ compensation changes tramples the Due Process Clause of both the Oklahoma State Constitution and the Constitution of the United States of America.
Permanent Partial Disability in Oklahoma: Damned if You Do; Damned if You Don’t
The section of law that the Oklahoma Supreme Court found to have so grievously violated the constitutional rights of employees was a provision allowing employers to defer payment of workers’ compensation in cases of permanent partial disability (PPD) where an employee returns to their pre-injury job. A PPD is where an employee permanently loses some, but not all, function in a body part due to a workplace injury.
Under the Oklahoma deferral rule, when an injured employee—having healed their injury as much as possible—returns to the position they held before their injury, or an equivalent job, their workers’ compensation payments were put on hold. While they worked at their old job, the amount owed to them for workers’ compensation decreased by 70% of their average weekly wage every week. Under Oklahoma’s 2013 workers’ compensation scheme, an injured worker receives 70% of their average weekly wage (with some limitations) over a statutorily determined number of weeks based on where they were injured. This means that every week an employee worked at their old job they essentially lost one week of workers’ compensation.
If the injured employee refused to return to work, their workers’ compensation was deferred in the same manner. So no matter what an employee did, once their employer offers them their job back, they stopped receiving workers’ compensation.
On its face, the rule already seems wrong. An employer could hire back a seriously injured employee, just to arbitrarily fire them once their workers’ compensation runs out. In fact, this is exactly what happened to one of the employees in the case that led the Oklahoma Supreme Court to rule the deferral scheme unconstitutional. If the employee doesn’t want to go back, they still don’t get their workers’ compensation. However, it wasn’t what the rule did that ultimately led the Oklahoma Supreme Court to rule it unconstitutional - it was how they did it.
Why is it Unconstitutional?
The Due Process Clause prevents the government from depriving a person of life, liberty, or property without due process of law. There are two types of due process, substantive and procedural. Substantive due process deals with the government regulation taking away a fundamental right. Procedural due process deals with the right to have the opportunity to make your case for yourself before the government takes away your life, liberty or property.
The Oklahoma Supreme Court ruled that the deferral provisions violated workers’ right to procedural due process. Workers have a property interest in an award of workers’ compensation. This means they receive due process protections before those workers’ compensation benefits can be taken away from them. As part of the protections of due process, Oklahoma due process requires that “all parties must be apprised of the charges so they may test, explain or rebut it. They must be given an opportunity to cross-examine witnesses and to present evidence."
This was an opportunity not given to workers seeking a hearing on their deferral. When a worker asked for a hearing upon returning to work, their employer was allowed to show any evidence they wanted at that hearing while the worker was only allowed to show medical evidence. The only evidence considered at these hearings was whether the worker had in fact returned to work.
The Court ruled that this meant that the hearings presumed that an injured worker has no loss of wage earning capacity because they have returned to work earning the wages they made before their injury. However, this presumption doesn’t take into account the loss of work life or future job opportunities from the injury. Thus, the hearings denied injured workers the chance to present “evidence of loss of wage-earning capacity [which] could include the injured employee's age, education, work history, vocational training, transferable skills, job opportunities, fitness to perform certain jobs, wage levels, or other information relating to his or her employment situation.” By not allowing employees to present all their evidence at these hearings, the procedures of the deferral provisions denied those employees due process.
The Future of Oklahoma Workers’ Compensation
The decision in Maxwell v. Sprint was a 7-2 decision on the part of the Oklahoma Supreme Court. Two separate judges included concurring opinions arguing that the opinion of the rest of the judges didn’t go far enough in just saying that the deferral provision “trampled” constitutional rights.
The 2013 changes to Oklahoma’s workers’ compensation system were employer-friendly to say the least—reducing potential awards for employees nearly across the board. Being employer-friendly is not by itself a bad thing, but with two separate provisions of the changes already found unconstitutional, it calls into question the changes as a whole. Time will tell whether Oklahoma will need to make further changes to its workers’ compensation law in order to protect workers in the state.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law