Virginia Employment Law Blog
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file0002000666636The excellent Ask A Manager blog recently responded to a reader question about whether it is legal for publications to not pay their volunteer writers.  As always with legal questions, AAM addresses the underlying issues, but avoids offering legal advice.  We’ve decided to expand on legal issues here.

As readers of this blog know, the Fair Labor Standards Act guarantees that employees are paid no less than minimum wage for their work.  The important language in the FLSA is that an employer must pay for hours that that employer has “suffered or permitted” you to work.

But before we get too far into the weeds: can people write for free for publications?  Can they trade their writing for the nebulous compensation of exposure?

The most prominent case on this matter is a weird one.  Tasini, et al v. Huffington Post did not come out well for the plaintiffs, but, oddly, the plaintiffs did not sue under wage and hour laws.  The Plaintiffs chose to bring their case under the laws of deceptive business practices and unjust enrichment in an attempt to claim one-third of the purchase price of the Huffington Post for its unpaid content providers.  That legal theory is novel and the plaintiffs’ lawyers were clearly swinging for the fences, but it didn’t work, and it doesn’t tell us much about whether actual wage laws apply to unpaid content providers.

According the law and guidance from the Department of Labor, however, this is actually an incredibly straightforward issue. You simply can’t volunteer for a for-profit entity.

You can volunteer for a nonprofit under particular circumstances.  A for-profit entity, on the other hand, simply cannot have volunteers, whether those volunteers are content providers, administrative support, or unpaid interns, as some of you may be.  This law is the reason that unpaid internships are becoming liability traps for companies across the country.

The distinction between hours worked and hours ‘suffered or permitted’ becomes important, especially in jobs like writing, when an employer might not know how long a task took you to complete.  As mentioned above, writing is a bit different from many other forms of work.  If you just upload content without oversight or direction, it’s hard to make the case that the publication, in the words of the statute, suffered or permitted you to work those hours.  It’s just something you did.  Presumably, you don’t have an exclusive arrangement with a particular site and you could have posted your column anywhere.  It wouldn’t be reasonable to insist that the site where you post your column has to pay you for the work of producing it if you wrote it unprompted.

Conversely, whether or not  you are being paid, if a site is assigning you work, giving you deadlines, expecting you to provide a certain product, or even expecting you to cover a certain beat, then you probably have a job and should be paid.  This is especially true if the publication is providing equipment for you.  This mostly is not the case when writing for an online publication, but press credentials, for example, could be considered equipment for these purposes.

In general, if you’re working, the law says you need to be paid for your work.  Exposure is not payment.  No one can stop you from doing unprompted work and posting on a forum, but if your work is at the request of a for-profit entity, that for-profit entity should pay for your time.

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file1581270826885The Eleventh Circuit recently provided insight as to how federal courts analyze disability discrimination law claims when it held that firing a truck driver because he was diagnosed with alcoholism is not a violation of the Americans with Disabilities Act (ADA).

Title I of the ADA grants certain protections to disabled individuals who are qualified to perform a job’s basic functions from discrimination in employment.

Alcoholism is a disability under the ADA, but the question of whether or not an alcoholic can seek the ADA’s protection doesn’t end there: employers are not always obligated to retain workers who suffer from a condition that is recognized as a disability under the ADA.

An employer can lawfully fire or refuse to hire some one who was diagnosed with alcoholism if he or she can show that a person wasn’t otherwise qualified for a particular job, or that employing that person would create a direct safety risk to others.

This case serves as an important reminder of when employees can state a claim for employment discrimination under the Act. As underscored in the majority’s opinion, an individual is not necessarily entitled to protection from undesirable employment actions like termination or demotion simply because that person suffers from a disability. Rather, the ADA’s section on employment covers only disabled individuals who are otherwise qualified for a job, meaning that they can fulfill its essential functions.

The debate in many employment discrimination cases therefore centers on determining what the essential functions of a job are. Although there is no clear-cut rule for this analysis, courts find evidence of essential functions of a job in things like official job descriptions, industry standards and norms, and job listings. Importantly, courts will defer to employers’ determinations of whether or not an individual is otherwise qualified for a job with or without a reasonable accommodation, on the rationale that employers may be better equipped to make this kind of assessment due to their experience within a particular field or industry than the Court.

In the case before the Eleventh Circuit, the defense argued—and the Court agreed— that having a current diagnosis of being an alcoholic, even if in treatment, prohibits someone from fulfilling the essential functions of truck driving, which includes driving and being certified to drive by the Department of Transportation.

In determining whether a job function is essential, the Equal Employment Opportunity Commission (the federal agency that enforces the ADA in the employment context and other employment discrimination laws) looks at these factors:

  • the employer’s assessment of which functions are essential, as demonstrated by job descriptions written before the employer posts or advertises for the position
  • whether the position exists to perform that function (if the entire job consists of one function, such as loading and unloading boxes or entering information into a database, then than function is essential)
  • the experience of employees who actually hold that position
  • the time spent performing the function
  • the consequences of not performing the function
  • whether other employees are available to perform the function, and the degree of expertise or skill required to perform the function.

If you were fired, demoted, or otherwise discriminated against in a job relating to an actual, past, or perceived disability, you may have a case of disability discrimination under the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at

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file000495587744Do you think that the Fourth Circuit got it wrong when it decided against an employee who was called a “porch monkey” more than once by a coworker and was fired from her job shortly after she complained?   You are certainly not alone.  Ms. Boyer-Liberto’s complaints about the racists did not give rise to a claim for a hostile work environment or employment discrimination according to the Fourth Circuit, but you may see the Fourth Circuit change or limit that opinion.

The Fourth Circuit on Tuesday, July 1, granted en banc hearing to Boyer-Liberto v. Fontainebleau Corp., marking a potential shift in the way the Fourth Circuit analyzes employment discrimination claims. What this means is that both sides will reargue the case, but this time they will do so in front of all eligible judges of the Court of Appeals for the Fourth Circuit.  Many appellate courts sit in parts or divisions of three or more judges from among a larger number on the full court.  The Fourth Circuit is no exception.  That’s why only three judges (Chief Judge Traxler and Judges Neimeyer and Shed)  heard and decided the original case.  When a court sits en banc it is possible that it will reach a different decision from the original 3-member panel. It is common for parties to ask for a rehearing en banc after an appellate court renders a decision; however, they are rarely granted.  When a court does grant a rehearing en banc, it means that one of the following situations are in play:

  1. A material (potentially outcome changing) fact or legal issue was overlooked in the decision;
  2. A change in the law happened after the case was decided and was overlooked by the judges who made the decision;
  3. The decision conflicts with a decision made by the Supreme Court, the Fourth Circuit itself, or another federal circuit; or
  4. The proceeding involves some issue of exceptional importance.

Oral argument is scheduled for September 18, 2014, so stay tuned for important developments in the case.

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On Friday, we discussed the recent discrimination case at arising from employment at a hotel bar between Reya Boyer-Liberto and her former employer, the Fontainebleau Corporation. We move on today to what we can learn from this case of racial language used in the service industry.


What the Case Teaches Us:

In dropping Liberto’s case, the Fourth Circuit was essentially saying that, even assuming everything that Liberto alleged was true, the conduct she faced did not amount to a hostile work environment while she had been employed by Berger.

If you experience discriminatory treatment at work, you have rights. However, not every case of racism or sexism will be treated as a civil rights violation. How will you know if the conduct was severe enough to create a hostile work environment claim?

  • Your case is more likely to succeed if you have faced multiple, separate instances of discrimination.  Based on the judge’s reasoning in this case, you may have a stronger claim for a hostile work environment if you can point to separate instances where a coworker or third parties dealing with your employer racially discriminated against you that persisted over a longer span of time. Your case may be weaker if you can only point to comments made in relation to an isolated conflict between you and another coworker that didn’t occur over a span of weeks or months.
  • Your case may be more likely to succeed if discriminatory statements were made during conversations about things like pay, work assignments, or other subjects relating to the terms and conditions of employment and had lasting consequences.  If discriminatory comments are made to you during talks about your pay rate, hours, or any other working conditions and leads to changes in working conditions, you may have a stronger case for hostile work environment. This is because the context of those conversations makes it seem more likely that discrimination led to an adverse employment action against you.
  • Be advised, however, that while it is more difficult to succeed on a hostile work environment claim where discriminatory comments have only been made once or twice, it is not impossible. You might be able to succeed in a hostile work environment claim if you can show that your employer permitted one of your coworkers to use language that was sufficiently egregious.  The dissent in this case argued that the Fourth Circuit should follow its holding in a prior case, in which it said that using the N-word, for example, is “more than a mere offensive utterance” and is “pure anathema to African-Americans.”

Remember, each fact pattern falls on a spectrum of possible results.  Liberto’s case was found to be too specific to create a hostile work environment: two incidents over the course of two days did not alter the terms and conditions of her employment.  Another case might have a different result.  One incident, if sufficiently severe, could alter the terms and conditions of employment.  Alternatively, less severe incidents that occur over a longer period of time could also create a hostile work environment.

Each situation requires individual analysis.  Contact us if you have been subject to discrimination or harassment based on race, gender, or other protected class status.

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openphotonet_129_2966_IMG_(1024_x_768)Have you ever wondered how bad your working conditions have to become your work is a “hostile work environment?”  A recent case may help you decide whether you’re in a position to take legal action.

Reya Boyer-Liberto, an African-American woman, sued the Fontainebleu Corporation and her boss Leonard Berger for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.  Liberto alleged that her former employer discriminated against her by allowing a hostile work environment to persist at the hotel where she worked because a coworker yelled at her and called her a “porch monkey” twice within a two-day period.

Despite recognizing the racial slurs as unacceptable, the Fourth Circuit held that Liberto’s coworker’s conduct was too isolated to constitute a hostile work environment, reasoning that a two-day period of racial comments, relating to one altercation, was not sufficiently “severe” or “pervasive” to change a term or condition of her employment or create an abusive workplace atmosphere.

A Match Not Made in Heaven

The lawsuit began with a conflict between Liberto and a coworker, Tracey Clubb, who was a friend of Liberto’s boss, Berger. When they first met, Clubb offended Liberto, saying: “You look like Stacy [another employee], but Stacy’s nice.” A month after Liberto was hired. she passed through the hotel’s bar’s kitchen to have a drink made. While she was doing so, Clubb called out to Liberto from across the room, telling Liberto not to use the kitchen as a shortcut, but Liberto could not hear her. When Clubb finally got Liberto’s attention, she yelled at her for not acknowledging her earlier. Clubb also called Liberto “deaf,” said she was “going to make [Liberto] sorry, ” and called her a “porch monkey.” The next day at work, Clubb scolded Liberto and again called her a “porch monkey.”

Liberto reported the conduct to the company’s Human Resources Director, who took typed notes of the conversation. Clubb denied Liberto’s allegations but was issued a written warning. In the immediate aftermath of the incident, Clarion owner Berger consulted with Liberto’s supervisors about her work performance. During that conversation, Berger noted that Liberto had substantial performance issues and failed a bartender’s test. He decided to fire Liberto’s employment, and notified her of the decision on September 21.

Liberto filed a charge of racial discrimination and retaliation with the United States Equal Employment Opportunity Commission (“EEOC”) and filed suit after the EEOC issued her a Notice of Right to Sue. Defendants asked the district court to drop the case because the offensive conduct was too distant from the adverse employment action against Liberto for the claim to . On April 4, 2013 the court entered judgment for Fontainebleau/Clarion. She appealed to the Fourth Circuit

The Law On Hostile Work Environment Discrimination Claims:

  •  Title VII bans employers from discriminating against an individual regarding her compensation, terms, conditions or other privileges of employment because of her race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1). Requiring an employee to work in a “discriminatorily hostile or abusive environment” is one type of Title VII violation.
  •  The test for a hostile work environment is whether discriminatory remarks are so “severe or pervasive” that they change the conditions of a person’s employment and “create an abusive working environment.”
  • Hostile work environment questions require judges to consider a wide variety of factors, including the frequency of the discriminatory conduct, its severity, and the effect of the conduct of the employee, i.e. whether it is threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.

Come back on Monday for Part 2: What This Case Teaches Us.


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file0001838914447You’ve likely heard by now the story of freshman Louisiana Congressman Vance McAllister (R-La.) kissing one of his staffers.  Now, Rep. Jackie Speier (D-Calif.) is trying to make it so that Representatives and their staffs have to undergo mandatory sexual harassment training.

Unlike the rest of the federal government and many private companies, there is no specific requirement in place that requires U.S. Representatives and their staffs to receive sexual harassment training.  And unlike many of your own workplaces, there aren’t posters and signs in break areas reminding workers of regulations and how to report unwanted conduct.  Many offices don’t even discuss sexual harassment policies at all.  The Senate has training courses for new employees, but several different policies can apply.  The House has no training schedule, but has handbooks.

Frustrated by the seemingly haphazard way these regulations have been put in place in Congress, Rep. Speier said “This is the House of Representatives, not a frat house.”  She continued, “it is time for all of us to get trained – elected officials and their staffs – to recognize what sexual harassment is, and how to prevent it, and what to do if it happens.”  Other lawmakers have expressed concern about these kinds of problems in the past.

This seems like a perfect time to remind you of your rights regarding sexual harassment in the workplace.  As the Equal Employment Opportunity Commission (“EEOC”) says on its website, “it is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”  There are a lot of common stereotypes as to what we think sexual harassment looks like, and it’s always good to remind ourselves that sexual harassment can take many forms and can affect many different people, irrespective of their genders or job titles.

Harassment doesn’t have to be sexual in nature, though, and can include merely generic offensive comments about someone’s gender.  For instance, an individual woman could potentially have a sexual harassment cause of action if someone made offensive comments about women in general.  Furthermore, you don’t have to be a woman to be a victim of sexual harassment, and you don’t have to be a man to be the harasser, and the victim and the harasser can both be the same gender.

Additionally, your harasser doesn’t necessarily have to be your direct supervisor.  Harassers can include your supervisor, a supervisor from another part of your company, a coworker, or someone who isn’t an employee of your company, such as a customer or client.

Keep in mind that these protections may or may not be available to you based on the size of your employer.  You generally have 180 days to file a charge with the EEOC, although federal employees have 45 days to get in touch with an EEO counselor.  Our attorneys have experience in managing the EEOC process and can help you if you think you’ve been harassed at work.  Please click the contact us link above and reach out if you need assistance.

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file000704919536In 2013, Lihuan Wang, then a student at Syracuse University and an unpaid intern for Phoenix Sattelite Television, sued Phoenix because her supervisor took her to lunch and to a hotel room where he kissed her by force and grabbed her buttocks.  She resisted and, later, Phoenix wouldn’t hire her.  U.S. District Court Judge Kevin Castel dismissed Ms. Wang’s lawsuit because she was not Phoenix’s “employee” and, thus, the New York City Human Rights Law didn’t apply to her.

Ms. Wang isn’t the first unpaid intern to have to deal with harassment at her internship.  According to Newsweek, one intern was taken out to a bar by her supervisor to discuss career options, but instead he made advances toward her and put his hand on her thigh.  Another was subjected to racial slurs while at work.  Interns – talented young people who are selected for their enthusiasm, their work ethic, and their willingness to work for literally no pay – often feel like they are powerless to stop this kind of harassment.  The most important way interns are usually “compensated” for their time is through a positive reference and/or contacts in the industry where they’re looking for find a job.  Interns feel like complaining could damage or jeopardize those references and contacts, especially when the interns are given no redress by the court system.  But, in New York City at least, this is about to change.

New York City Mayor Bill de Blasio signed a bill into law on Tuesday, April 15, 2014 that provides NYC interns with protections from sexual harassment and discrimination in the workplace.  As the mayor said before signing the bill, “this legislation will clarify that interns, paid or unpaid, are guaranteed the full protections guaranteed to employees under the human rights law.”  Interns in New York will no longer be akin to fair game for harassment and exploitation as far as discrimination and harassment are concerned.

Although this bill protects NYC interns, protections for the large number of DC-area interns are still worryingly unclear.  For this reason, it’s important to be mindful of ways that you can preserve your rights even if those rights are unclear at this point.  Some of these include:

  • Provide details to Human Resources, if your company has a human resources department.
  • Document incidents of harassment, including any and all comments that may have been made. Memories fade, so it’s best to write them down immediately if you can.
  • Ask friends at work who have witnessed any form of harassment to write down what they saw.  Keep their information handy in case they move on and you still need their help.
  • Save texts, emails, and any other messages separately from any work accounts or phones, so you won’t lose access to them.
  • If your company has a handbook, code of conduct, or any other similar document, then check it for procedures on reporting and dealing with harassment.

Keep in mind that, because sexual harassment is a form of sex discrimination that ultimately falls under the protections provided by Title VII of the Civil Rights Act of 1964, you have to file a complaint with the U.S. Equal Employment Opportunity Commission within 180 days in order to preserve your rights.  Do you think you’ve been harassed or discriminated against at work?  Our attorneys have experience navigating the EEOC process and with dealing with these kinds of claims.  Contact the Erlich Law Office today if you want to speak to us about your complaint.

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IMG_0939A United States District Court Judge in the District of Columbia issued a recent opinion that could radically change the discrimination protections afforded to members of the LGBT community, but perhaps not in the way that you would expect.

In a complaint filed in the federal district court in D.C., Peter TerVeer alleged that he was targeted and harassed by his supervisor, a particularly religious man, after Mr. TerVeer’s supervisor discovered he is gay.  The supervisor allegedly harassed Mr. TerVeer in numerous ways, including:

  • Engaging in “religious lectures” in virtually every work-related conversation – to the point that it became clear Mr. TerVeer sought to impose his conservative religious beliefs on Mr. TerVeer.
  • Giving Mr. TerVeer much less specific directions for assignments without clear expectations.
  • Assigning Mr. TerVeer alone to a large project beyond his level of experience that would usually require a half-dozen employees over a year to manage and ordinarily would require a New Project Memorandum.
  • Holding a meeting for over an hour whose stated purpose was to educate Mr. TerVeer on Hell, the sins of being a homosexual, that homosexuality is wrong, and that Mr. TerVeer would be going to Hell.
  • Receiving annual reviews that did not accurately reflect Mr. TerVeer’s work.
  • Putting Mr. TerVeer under a “closer watch” and telling him not to question management after Mr. TerVeer complained about how he was being treated.

Mr. TerVeer alleged, in his complaint, that his employer violated Title VII by discriminating against him based on his gender, religion, and in retaliation for reporting his concerns.  To many, this doesn’t seem to make sense. Shouldn’t Mr. TerVeer just have sued his employer for discriminating against him because he’s gay? Unfortunately, being gay or otherwise a member of the LGBT community is not a protected class under Title VII or any other federal anti-discrimination legislation currently on the books here in the United States.

Instead, Mr. TerVeer got creative.

Mr. TerVeer alleged that Defendant subject him to discriminatory working conditions because, as a gay man, Mr. TerVeer did not fit the gender norms and stereotypes held by his supervisor.  In other words, if Mr. TerVeer were a woman, it would be fine in his supervisor’s mind for him to be attracted to and have relationships with men.  Because he is a man, the supervisor allegedly targeted him with the behaviors highlighted above.  Thus, Mr. TerVeer seems to be arguing, this is a case of gender discrimination.  Other successful gender discrimination cases in the past have been based on employers telling their female employees that they aren’t being feminine enough.  Here, Mr. TerVeer is making the similar argument that by being gay, he wasn’t being masculine enough for his supervisor.

In a thirty-four page opinion, Judge Colleen Kollar-Kotelly denied Mr. TerVeer’s employer’s motion to dismissed and ruled that Peter TerVeer’s gender and religious discrimination claims did fall within Title VII.  As mentioned by, this ruling builds on a 2012 ruling from the Equal Opportunity Employment Commission (“EEOC”) that Title VII’s protections extend beyond merely biological sex and include “protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

As always, if you believe you have been discriminated against at work for any reason, please contact one of our attorneys for a free consultation.

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06d80The process of being separated from your company is often a surprising, confusing, and emotionally trying.  You walk into a routine meeting with a supervisor only to find that a Human Resources representative is also present.  Your supervisor hands over a lengthy document containing complex legalese that may not make sense, along with a packet of information about something called COBRA.  Despite loyalty and years of hard work, the company has decided to “downsize” or “go in a different direction,” and the employee is asked to review and sign the severance agreement.

The document is frequently called a severance agreement, but sometimes it’s known as a separation or termination agreement, or even the verbose “separation agreement general release and covenant not to sue.”

But what do these things actually mean?   A severance agreement is an agreement in which you settle any potential future claims you have against the company up front.  In other words, a severance agreement is like a sales contract.  You, as the employee being separated, are being offered certain things – usually money, a positive reference, and sometimes confidentiality regarding your separation.  In exchange, the the company asks you to “sell” them a series of releases from future legal action and promises about how you’re going to behave going forward.  This doesn’t necessarily mean that they believe you may have a claim against them; rather, they wish to stave off the expense of litigation of any claims you may bring while feeling singled out and possibly even discriminated against by being separated.

The releases and conditions that employers often seek fall into a few general categories.

  • Full Release or Waiver of All Claims.  These provisions are designed to release the company (and, sometimes, future versions of the companies should it be sold, members if the company is a member organization, and even “agents” of the company, which can include couriers, maintenance workers, and the guy who brings the donuts)  from future legal action you may wish to bring in the future.  This usually encompasses discrimination under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Section 1981.  Sometimes, though, these provisions can be extremely broad and can extend to future personal injury actions for injuries you incurred while at work.  For example, if your building at some point contained asbestos and you contracted mesothelioma, you may be unable to bring a suit to recover damages against the company or the building’s owners.  Thus, it is very important to very carefully read and determine exactly who you are releasing and exactly what you are releasing them from.
  • Confidentiality.  These provisions usually involve you agreeing not to use the information that you learned about the company, its products, and how it is run confidential.  They don’t want you sharing their secret business strategies, recipes, designs, and that sort of thing with their competitors when you move on to another information.  It’s also not uncommon that they ask you to keep the terms of the agreement confidential as well.  As before, make sure that you know exactly who these sections are binding.  If you’ve been told the agreement will bind your “heirs, successors and assigns,” it means the company may try to enforce the confidentiality provisions against your children in the future.  Don’t believe us?  A Florida man lost an $80,000 settlement agreement because his daughter wrote about it on Facebook.
  • Non-Disparagement.  Over the years, you’ve probably learned a thing or two about your employer’s dirty laundry.  In exchange for the monetary and other forms of compensation the company is offering you, they may ask for you to agree not to say negative things about them.  This can often be a two-way street; if they want a non-disparagement agreement from you, then you could negotiate for them not to disparage you either.
  • Non-compete and/or Non-solicitation Covenants.  Your employer could be looking for ways to limit your ability to work in a company that competes with the employer within a certain area or to solicit business from their old customer contacts.  This can be especially problematic if you work in a specialized industry and are unable or unwilling to relocate, as non-compete agreements can cover large areas.  Be sure that you know exactly what you are prohibited from doing when reviewing these documents.

One more thing worth mentioning about general releases of claims.  As the EEOC explains on its website, severance agreements cannot limit your rights to bring a charge against your employer before the EEOC or “to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA.   Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.”

Have you been presented with a severance plan and want an attorney to review it and tell you what it really says?  Would you like to have negotiations with your employer (or former employer) conducted by an attorney with experience negotiating with both large and small employers, including federal contractors?  Contact the attorneys at The Erlich Law Office today.

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Football EquipmentThis is the beginning of a series on the implications of today’s National Labor Relations Board (“NLRB”) decision that Northwestern’s football players, “are employees of the school and therefore entitled to hold an election to decide whether to unionize,” according to The Chicago Tribune.

We’re going to start by focusing on the definition of employee.

The first question is what the NLRB means by “employee.” Well, the National Labor Relations Act defines employee with a long paragraph that starts out pretty broadly with, “The term ‘employee’ shall include any employee… unless this subchapter explicitly states otherwise…”  29 U.S.C. 152(3).  The definition goes on to carve out exceptions for agricultural workers, individuals covered by the Railway Labor Act, and some other exceptions.

These exceptions do not include college athletes, as we now know.

How does this compare to the definition of “employee” in other notable employment laws?

  • The Civil Rights Act of 1964 defines “employee” as “an individual employed by an employer…” with the exception of individuals elected to public office, people on the staff of those people elected to public office, or individuals subject to the civil service laws.  42 U.S.C. 2000e(f).
  • The Fair Labor Standards Act defines “employee” as “…any individual employed by an employer” with certain exceptions.  29 U.S.C. 203(e).  Relevant to the college athlete, especially those at public schools, could be the exception relating to “any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual…”  29 U.S.C. 203(e)(C).  However, in order for an individual to not qualify as an employee under this provision, the non-employee must also be a political appointee or a member of the legislative branch.
  • The Family and Medical Leave Act looks to the Fair Labor Standards Act for its definition of “employee.”  The FMLA simply states, “The terms ‘employ’, ‘employee’, and ‘State’ have the same meanings given such terms in subsections (c), (e), and (g) of section 203 of this title.”  29 U.S.C. 2611(3).
  • The Employee Retirement Income Act of 1974 (“ERISA”) defines “employee” as “any individual employed by an employer.” 29 U.S.C. 1002(6).
  • And, most interestingly, the health care reform bill, the Patient Protection and Affordable Care Act looks to ERISA for its definition of “employee.”  So, it also defines employee as “any individual employed by an employer.”

So, what does all this mean?  It’s too soon to tell.  But if the NLRB’s decision stands up to appeal and college athletes are considered employees under at least one federal law, it raises a lot of questions.  The definitions above are all pretty similar, but that does not necessarily mean that courts will adopt the NLRB’s reasoning and apply that reasoning to other federal statutes.

But they might.  And we’re going to talk about those possibilities in this series of posts.  Could the health insurance mandate affect college sports?  What about the minimum wage?  What would happen if college athletes could bring EEOC charges?  And what affect, if any, would that have on Title IX?

I’m not sure.  Let’s think about it together.