Christensen v. Harris County: Compelled Use of FLSA Compensatory Time

In Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court held that the Fair Labor Standards Act does not prohibit public employers from compelling employees to use compensatory time.

Background

The Fair Labor Standards Act allows public employers (including states and their political subdivisions) to compensate employees for overtime work by granting them compensatory time instead of paying them a cash overtime wage. 29 U.S.C. § 207(o). Compensatory time is paid time off. To comply with this part of the FLSA, the public employer must provide the compensatory time at a rate not less than one and one-half hours for each hour of overtime worked. Id. Compensatory time can accumulate, like vacation time. Importantly, if employees do not use their accumulated compensatory time, under certain circumstances the FLSA requires the public employer to pay the employees cash compensation. 29 U.S.C. §§ 207(o)(3)-(4).

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Meritor Savings Bank v. Vinson: Sexual Harassment is Unlawful Discrimination

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court recognized for the first time that sexual harassment is a violation of Title VII of the Civil Rights Act of 1964..

As discussed in an earlier post, Title VII protects employees from workplace discrimination “because of” sex. 42 U.S.C. § 2000e-2(a).

Meritor Savings Bank addressed the question of whether Title VII prohibits employers from creating a sexually “hostile environment” or only prohibited tangible economic discrimination, like terminations and demotions.

The Court held, inter alia, that “hostile environment” sexual harassment is a form of sex discrimination that is actionable under Title VII. Id. at 63-69. This is because the language of Title VII is not limited to “economic” or “tangible” discrimination, like a termination resulting in wage loss. Therefore, sexual harassment leading to purely non-economic injury (like emotional distress) can violate Title VII.

Facts
In 1974, Meritor Savings Bank hired Vinson as a teller. Her supervisor was a man named Sidney Taylor. Vinson testified that Taylor subsequently invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sex. At first, she refused, but out of what she described as fear of losing her job she eventually agreed. According to Vinson, Taylor thereafter repeatedly demanded sexual favors from her, usually at the branch, both during and after business hours. She estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, Vinson testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and forcibly raped her on several occasions. Taylor denied all this. The District Court found that any sexual relationship between Vinson and Taylor was a voluntary one.

In her suit against Taylor and the bank, Vinsom claimed that during her four years at the bank she had constantly been subjected to “sexual harassment” by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney’s fees.

The Court’s Decision
Meritor Savings Bank raised the question of whether Title VII’s prohibition on sex-based “discrimination” prohibits employers from creating a sexually “hostile environment” or was limited to a prohibition on tangible economic discrimination, like terminations and demotions.

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Successor Liability for Employment Claims

In employment law, successor liability addresses the situation where one company violates Title VII of the Civil Rights Act (or other federal employment laws) by subjecting an employee to harassment or discrimination, then that company is sold to a second company before

the harassment or discrimination can be remedied. Under some circumstances, that second company can be held liable for the first company’s violations of Title VII — even though the second company did not itself subject the employee to harassment or discrimination.

Courts have emphasized the importance of successor liability in fulfilling Title VII’s remedial purposes. Successor liability under Title VII is an “equitable doctrine … addressing a particular problem of employment discrimination: ‘Failure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy.’” EEOC v. Phase 2 Investments Inc., 310 F. Supp. 3d 550, 569 (D. Md. 2018) (quoting EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1091 (6th Cir. 1974)

Therefore, courts may impose liability on a successor company even though it had little relationship to the first company and purchased the first company’s assets without agreeing to take responsibility for the first company’s liabilities to its employees. “Successor liability is liberally imposed.” Fennell v. TLB Plastics Corp., No. 84 Civ. 8775, 1989 WL 88717, *2 (S.D.N.Y. July 28, 1989) (citing Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) (finding successor liability (in the labor law context) where the successor changed marketing and sales, did not assume liabilities or trade name, hired employees through newspaper ads rather than from predecessor’s employment records, and seven months had passed between predecessor’s demise and successor’s start up) (emphasis added).

In determining whether successor liability in the Title VII context is appropriate, courts often look to nine equitable factors set forth in the Sixth Circuit’s decision in MacMillan:

1) whether the successor company had notice of the charge, 2) the ability of the predecessor to provide relief, 3) whether there has been a substantial continuity of business operations, 4) whether the new employer uses the same plant, 5) whether he uses the same or substantially the same work force, 6) whether he uses the same or substantially the same supervisory personnel, 7) whether the same jobs exist under substantially the same working conditions, 8) whether he uses the same machinery, equipment and methods of production and 9) whether he produces the same product.

Phase 2, 310 F. Supp. 3d at 570 (quoting MacMillan, 503 F.2d at 1094).

Factors 4-9 are essentially subsets of the “continuity of business operations” factor. The equitable test, then, “really comes down to three major factors: whether a successor had notice, whether a predecessor had the ability to provide relief, and the continuity of the business[.]” …

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The National Labor Relations Act: Protections for Employee Concerted Activity

The National Labor Relations Act (NLRA) gives employees the right, among others, to unionize, to join together to advance their interests as employees, and to refrain from such activity. 29 U.S.C. § 151–169. The NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights under the law, including their right to engage in concerted activity to advance their interests as workers. For example, employers may not respond to a union organizing drive by threatening, interrogating, or spying on pro-union employees, or by promising employees benefits for not participating in the union. But even when no union is involved, employers may not punish employees for banding together and speaking up in an effort to improve their working conditions.

Background

Congress enacted the NLRA in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. Among other things, Congress expressed an intent for the NLRA to address the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate … form[].” Congress found that this inequality of bargaining power between employees and their employers “substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.” 29 U.S.C § 151. Congress further determined that enacting legal protections for employees to “organize and bargain collectively” would have the effects of “encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and…restoring equality of bargaining power between employers and employees.” Id.

Section 7: The Right to Self-Organize and Engage in Concerted Activity

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” 29 U.S.C. § 157.

In general, the NLRA, therefore, gives employees the right to engage in both union and certain non-union activities aimed at improving working conditions. With respect to employee union rights, these include the right to attempt to form a union where none currently exists, or to decertify a union that the employees no longer support. Examples of employee rights relating to unions include: being fairly represented by a union; forming, or attempting to form, a union in the workplace; joining a union, regardless of whether the union is recognized by the employer; assisting a union in organizing fellow employees; and refusing to do any of these things.

Regardless of whether a union is involved, employees still have rights to band together and speak up about their working conditions. Section 7 of the NLRA guarantees this right to “engage in other concerted activities for the … mutual aid or protection” of fellow workers. 29 U.S.C. § 157. This right does not require a union. The NLRA therefore protects the rights of employees to engage in “concerted activity,” and this happens when two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. It is also possible for a single employee to engage in protected “concerted activity” if she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Id. Examples of protected concerted activities include: two or more employees addressing their employer about improving their pay; two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other; or one employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions. Id.

For more information about non-union concerted activities, the National Labor Relations Board (NLRB) publishes a protected concerted activity page, which includes descriptions of real-life concerted activity cases.

Section 8: Protections Against Interference with Concerted Activity

Section 8(a)(1) of the NLRA, among other things, prohibits employers from interfering with employees’ rights to engage in concerted activity. In short, this section makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA, including the right of employees to engage in concerted activities for their mutual aid or protection. 29 U.S.C. § 158. An employer therefore cannot terminate an employee for engaging in concerted activity protected by Section 7.

Concerted Activity and Social Media

The range of activity that constitutes concerted activity protected from employer interference can include employee interactions on social media. For example, in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. N.L.R.B., 629 F. App’x 33 (2d Cir. 2015), an employee posted a Facebook status update protesting an employer’s purported failure to properly calculate tax withholding: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . WTF!!!!” Another employee commented: “I owe too. Such an asshole.” Another employee “liked” the post. Based on these comments, the employer, Triple Play, terminated two of the employees. Id. at 36-37.
The NLRB determined that the employees’ comments were protected concerted activity, and therefore the terminations violated the NLRA. The Court of Appeals for the Second Circuit affirmed. The appeals court agreed with the NLRB that the employees’ Facebook comments were “protected concerted activity” because: (1) the comments were “concerted activity” because they were exchanged among current Triple Play employees; and (2) the comments were “protected” because they “concerned workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and [and emloyee’s] assertion that she was owed back wages.” Id. at 36…

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Family and Medical Leave Act: Job-Protected Leave for Family and Medical Reasons

The Family and Medical Leave Act (FMLA) is a federal law that gives “eligible” employees of covered employers the right to take a limited amount of unpaid, job-protected leave for specified family and medical reasons. The FMLA entitles an employee on qualified leave to continued group health insurance coverage under the same terms and conditions as if she had not taken leave. Read the law at 29 U.S.C. § 2601, et seq.

Employee Eligibility Requirements

Subject to a pair of relatively uncommon exclusions, 29 U.S.C. § 2611(2)(B), and the employer coverage requirements, 29 U.S.C. § 2611(4), an employee is generally “eligible” for FMLA rights if the employee has (i) been employed by her employer for at least 12 months and (ii) worked at least 1,250 hours during the previous 12 months. 29 U.S.C. § 2611(2)(A). The employee also has to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. 29 U.S.C. § 2611(2)(B).

Covered Employer Requirements

The FMLA applies to covered “employers” — that is, the law only requires employers who meet certain specified criteria to comply with its job-protected leave provisions. Under the FMLA, a covered “employer” is generally any person or entity engaged in any activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(4)(A). This includes any “public agency”, as that term is defined in section 203(x) of the Fair Labor Standards Act, as well as the Government Accountability Office and the Library of Congress. 29 U.S.C. § 2611(4)(A)(iii), (iv). See also the covered employer regulations at 29 C.F.R. § 825.104.

FMLA Rights of Eligible Employees

The FMLA entitles eligible employees of covered employers to:

Twelve workweeks of leave in a 12-month period for any of the following, or any combination of the following:

A) the birth of a child and to care for the newborn child within one year of birth;

B) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; …

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Griggs v. Duke Power: Disparate Impact Without Discriminatory Intent

The Supreme Court’s decision in Griggs v. Duke Power Company, 401 U.S. 424 (1971), addressed the Title VII issues created by employer policies that are facially neutral, but which adversely impact employees on the basis of race, sex, or religion. In short, the Griggs Court decided that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the neutral rule or test violates Title VII unless the employer proves it is justified by “business necessity.”

Summary

Title VII of the Civil Rights Act of 1964 prohibits employers from treating employees differently because of their race, sex, or religion. This means, obviously, that an employer cannot refuse to hire an applicant because of the applicant’s race. But sometimes employers may implement policies, or require applicants to take tests, that work to disadvantaged members of one sex, race, or religion over others — even though the employer may not have intended the policy or test to have that effect. For example, in Griggs, Duke Power had a policy that required employees in all but its lowest-paying jobs to have a high school diploma or pass “intelligence” tests. There was no evidence Duke Power intended this policy to discriminate against minority workers. The employees in Griggs argued this policy violated Title VII because it disproportionately impacted black workers.
The Griggs Court reasoned that Congress designed Title VII to address the consequences of employment practices and not just the employer’s motivation. Therefore, a neutrally-worded employment policy or test that has the effect of disproportionately impacting employees of one sex, race, or religion, may be unlawful under Title VII even if the employer did not intend that policy or test to be discriminatory in that way. The Griggs decision made it possible for employees to challenge employment practices that disadvantage certain groups if the employer cannot show the policy is justified by business necessity and paved the way for the Civil Rights Act of 1991, which codified the “disparate impact” theory of discrimination endorsed by Griggs…

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Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Protections from Employment Discrimination Based on Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) protects employees and job applicants from employment discrimination based on genetic information. Title II of GINA prohibits employers (and various employer-like entities and programs) from using genetic information in making any employment decisions — such as firing, hiring, promotions, pay, and job assignments. This law also prohibits employers from requesting or requiring genetic information or genetic testing as a prerequisite for employment.

GINA went into effect on November 21, 2009. The Equal Employment Opportunity Commission (EEOC) enforces Title II of GINA, regarding protections from genetic discrimination in employment. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Genetic Information Defined

Under Title II of GINA, “genetic information” includes any information about an individual’s genetic tests and genetic testing of an individual’s family members. Critically, this definition encompasses an individual’s family medical history — i.e. information about diseases or disorders among members of the individual’s family. 42 U.S.C. §2000ff(4). EEOC regulations clarify that GINA’s use of the phrase “manifestation of a disease or disorder in family members” in its definition of “genetic information” refers to an employee’s “family medical history,” interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).

GINA’s definition of “genetic information” includes family medical history because this kind of information is often used to predict an individual’s risk of future diseases, disorders, or other medical conditions that might theoretically, in the future, impair her ability to work.

Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual. 42 U.S.C. §2000ff(4)(B). Genetic information under GINA also encompasses the genetic information of a fetus carried by an individual or a family member of the individual, and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. See 29 U.S.C. §1182(f).

Discrimination and Harassment on the Basis of Genetic Information
GINA’s basic intent is to prohibit employers from making a “predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.” H.R.Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. Congress therefore included family medical history in the definition of “genetic information” because it understood that employers could potentially use family medical history “as a surrogate for genetic traits.” H.R.Rep. No. 110–28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); see also the Final Rule implementing Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on November 9, 2010; and the Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on May 17, 2016…

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The Age Discrimination in Employment Act and the Older Workers Benefits Protection Act: Protections for Employees Over 40

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants age 40 and older from discrimination based on age in hiring, discharge, promotion, compensation, or other terms, conditions or privileges of employment. The Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, specifically prohibits employers from denying benefits to older employees, despite the increased costs of providing benefits to employees as they age.

Prohibitions on Age Discrimination

Enforced by the Equal Employment Opportunity Commission, the ADEA applies to private employers with 20 or more employees, employment agencies, labor organizations, and state, local and federal governments. The purpose of the ADEA and the OWBPA is to promote employment of older workers based on their ability and skill, while protecting them from any form of discrimination or denial of benefits based on their age. As Congress observed in Section 2 of the ADEA, older workers often find themselves disadvantaged in their efforts to retain employment or to regain employment after being displaced from their jobs. 29 U.S.C. § 621. The ADEA sought to level the playing field for olders workers.

Under the ADEA, it is therefore unlawful to discriminate against a person over 40 because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

Specifically, Section 4 of the ADEA makes it unlawful for an employer unlawful to:

Fail or refuse to hire or discharge any person or otherwise discriminate against any individual with respect to terms, conditions, compensation, or privileges of employment due to the individual’s age;
Reduce the wage rate of any employee based on age; or
Limit or classify employees in a way that would deprive or potentially deprive them of employment opportunities.

See 29 U.S.C. § 623. The ADEA also applies to employment agencies, making it unlawful for them to:

Fail or refuse to refer for employment, or otherwise discriminate against any individual based on age, or classify or refer any individual for employment based on the individual’s age.

See 29 U.S.C. § 623(b). The ADEA also applies to labor organizations, making it unlawful for them to:

Exclude or expel from membership, or otherwise discriminated against due to an individual’s age; or
Limit, segregate, or classify its membership, or fail or refuse to refer employment in a way that would deprive or tend to deprive any individual of employment opportunities, because of the individual’s age.

See42 U.S.C. § 623(c). It’s worth noting that the ADEA does allow employers and other applicable entities to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older. In other words, employers are allowed to discriminate against young employees based on their age….

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Vance v. Ball State, 133 S.Ct. 2434 (2013): Vicarious Liability for Workplace Harassment

Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.

The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.

In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.

Co-Worker Harassment: Negligence

Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.

Supervisor Defined
Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim….

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Equal Pay Act of 1963: Equal Pay for Equal Work

The Equal Pay Act (EPA) prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. 29 U.S.C. § 206(d). Enacted in 1963, the EPA was an amendment to the Fair Labor Standards Act of 1938 (FLSA) and (under certain circumstances) is enforced by the Equal Employment Opportunity Commission (EEOC). Here’s a link to the EEOC Compliance Manual on compensation discrimination. The forms of compensation in which the EPA requires equality include all payments made to or on behalf of employees as remuneration for employment. This ultimately covers all forms of compensation including:

Salary
Overtime pay
Stock options
Profit sharing and bonus plans
Bonuses
Vacation and holiday pay
Life insurance
Hotel accommodations
Cleaning or gasoline allowances
Reimbursement for travel expenses
Benefits

Substantially Equal Work

In short, the EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Determination of job equality is based on the content and requirements of the job itself, not the job title. Under the EPA, job factors and requirements are measured by looking to whether the job roles being compared entail substantially equal amounts of skill, effort, responsibility, and working conditions within the same establishment. The comparative skills of job roles are measured by looking to the experience, ability, education and training required to perform their respective daily job requirements. This means the skills required to complete the job, not what skills an individual employee has prior to taking the job. Therefore, two jobs could be considered equal under the EPA even if one of the employees holds a higher degree in another field. If the degree is not specific to the job requirements, it does not need to be considered under the EPA.

Under the the EPA, a comparison of job effort looks to the amount of physical or mental exertion it takes to perform the necessary job requirements. If there is are two jobs within the same department, and one requires more effort (physically or mentally) than another, then lower payment for the job requiring less exertion may not violate the EPA or its regulations, regardless of whether that job is held by a female or male employee….

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