The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Icognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. Read More
Erin M. Connell
Erin Connell, a senior associate in the San Francisco office, is a member of the Employment Law Group. Ms. Connell has represented and counseled clients on a variety of employment-related matters, including discrimination, harassment and retaliation claims, wrongful termination claims, reductions in force, wage-and-hour issues, class actions and §17200 unfair competition claims. In particular, Ms. Connell has significant experience handling claims of systemic discrimination by private plaintiffs and the EEOC, and advising clients on EEO matters generally.
Ms. Connell also has significant litigation experience. She has served as second chair on several jury trials and FINRA arbitrations in California, and has successfully obtained several defense summary judgment rulings and other favorable resolutions in both state and federal court, as well as in arbitration.
In 2012, Ms. Connell spent three months on a secondment working in-house in a client’s employment law department. Ms. Connell gained extensive counseling experience by providing advice to management, human resources and other in-house attorneys on employment law matters. She also reviewed and revised policies, training materials and contracts; interacted with outside counsel on active litigation; and investigated and responded to demand letters and administrative complaints.
Prior to her legal career, Ms. Connell wrote extensively on public policy issues. Her opinion editorials were published in magazines and newspapers across the country, including The Los Angeles Times, The San Francisco Chronicle, The San Jose Mercury News, The Washington Times and The City Journal.
Ms. Connell was a summer associate in the firm’s San Francisco office in 2001.
Despite increasing rejection of the NLRB’s controversial D.R. Horton decision by almost all federal courts which have considered it, an NLRB administrative law judge recently felt there was no choice but to follow Board precedent and so applied and affirmed its holding. These cases illustrate the growing divide between the NLRB and courts over the D.R. Horton decision and the growing trend of federal courts refusing to uphold its enforcement. Read More
Given the difficulty of finding a job in today’s economy, unpaid internships are becoming increasingly popular, particularly for students looking to gain resume-boosting experience. Yet just because someone is willing to work for free and will derive some benefit from an unpaid internship, it does not make it legal under state and federal law. Class litigation regarding unpaid interns is on the rise, and likely will increase even more given the recent ruling in Glatt v. Fox Searchlight Pictures. Read More
On June 11, 2013, the Equal Employment Opportunity Commission (“EEOC”) filed two separate lawsuits against Dollar General and BMW Manufacturing Co. LLC, accusing each company of discriminating against Black job applicants through the improper use of criminal background screens. The aggressive positions taken by the EEOC in these cases demonstrate the agency means business with respect to cracking down on criminal background check policies that it feels are not consistent with its April 25, 2012 enforcement guidance on the use of criminal conviction and arrest records in employment decisions. The lawsuits also underscore the importance of reviewing existing policies in light of the EEOC’s emphasis on this issue.
For decades, the EEOC has taken the position that criminal background check policies pose a particular threat of adverse impact discrimination against Black and Hispanic job applicants in light of statistics showing that they are convicted at a rate disproportionally greater than their representation in the population. The agency’s first written policy guidance on the use of criminal background screens, published in 1987, explains that “the Commission has held and continues to hold that [criminal background check policies are] unlawful under Title VII in the absence of a justifying business necessity.” In April 2012, the EEOC issued new guidance on the topic (click here to read our April 30, 2012 blog entry on the EEOC’s guidance). Technically, the new guidance did not establish new rules. It undoubtedly illustrates, however, the increased scrutiny under which EEOC is reviewing criminal background check policies such as those at issue in the Dollar General and BMW lawsuits. Read More
On October 10, 2012, the Eighth Circuit in Abshire v. Redland Energy Services, LLC (Case No. 11-3380) confirmed that under the FLSA, employers are allowed to alter the days contained in employees’ workweek to minimize overtime pay as long as the change is intended to be permanent. While this decision is certainly a victory for employers, employers (particularly in California) should nevertheless ensure compliance with state law before making any changes.
Abshire involved claims against employer Redland Energy Services, LLC, a company that drills and services natural gas wells in Arkansas. Most of Redland’s workers worked a regular Monday-to-Friday schedule, and any weekly overtime was calculated on a regular Sunday-to-Saturday week. Redland’s drill operators, however, worked 12-hour shifts on seven consecutive days, from Tuesdays through Mondays, and then received seven days off. Originally, Redland calculated weekly overtime for its drill operators on a Tuesday-to-Monday week. In May 2009, however, Redlands switched to a Sunday-to-Saturday week, thereby making the workweek consistent for all employees. Redland claimed that this switch was made not only to decrease payroll expense by reducing the number of hours that drill operators must be paid at the FLSA-mandated overtime rate, but also to reduce administrative costs because the change would allow the company to calculate the overtime for all of its employees on the same weekly basis. The drill operators alleged that the supposed reduction of administrative costs was merely a pretext, and the effort to reduce the amount of overtime paid was impermissible under the FLSA. Read More
The New York State Legislature recently passed a bill amending New York Labor Law Section 193 and establishing new categories of permissible wage deductions that employers may take with the consent of employees. In addition to allowing employers (with employee consent) to recoup advances on wages or accidental overpayments, the new amendments also permit employee-approved deductions for things such as discounted mass transit tickets; gym membership dues; cafeteria or pharmacy purchases made at the employer’s place of business; and education and child care expenses. Both employers and employees are expected to benefit from the flexibility permitted by the bill, although implementing regulations from the New York Department of Labor have yet to be enacted.
With respect to deductions related to recovering accidental overpayments of wages or wage advancements, the bill instructs the New York Department of Labor to issue regulations governing the periodic amount of recovery or repayment; the timing, frequency, duration and method of recovery or repayment; a requirement that notice to be provided to employees before commencing the recovery or repayment; and a requirement that employers implement procedures for disputing the amount of overpayment or repayment or seeking to delay commencement of repayment or recovery. Employers are advised to wait until these regulations are enacted before acting on the bill, and should also take care to ensure compliance with the bill’s new record keeping requirements.
The amendment is expected to be signed into law by Governor Andrew Cuomo and will become effective 60 days after enactment. The bill contains a sunset provision, which provides that the law shall expire and be deemed repealed three years after the effective date. The text of the bill is available here.
On Wednesday, April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of criminal conviction and arrest records in employment decisions. The EEOC has had a long-standing policy that, unless job-related and justified by business necessity, a policy or practice of denying employment because an applicant has a criminal record violates Title VII. The new enforcement guidance, however, emphasizes EEOC’s presumption that consideration of a criminal history is unlawful, and undoubtedly illustrates the increased scrutiny under which EEOC will review criminal background check policies. Click here to view the new guidance on the EEOC’s website. Read More