Employment Lawyer Blog

Sexual Harassment and Text Messaging: When Does an Unfortunate Turn of Phrase Constitute Harassment?

July 6, 2015 | by Joseph & Kirschenbaum LLP

Workplace sexual harassment cases in New York (and beyond) often appear pretty cut and dry to objective observers. For instance, a boss may make outrageous comments in the office or grab or grope an employee, sometimes to horrific effect.

That said, when it comes to more impersonal modes of communication, like text messaging, it can be more challenging to prove misconduct or wrongdoing. Was a weird comment or awkward picture harassment… or a glitch or typo?

Context is crucial. If your boss has a habit of ogling you at work, asking you out and making inappropriate comments about your boyfriend… and then he texts you a nasty picture or veiled sexual innuendo… such text messages could likely be considered evidence of harassing behavior.

Tyson Foods Seeks to Overturn Workers’ $5.8 Million Class Action Suit

June 29, 2015 | by Joseph & Kirschenbaum LLP

A legal decision upholding the rights of workers at Tyson Foods pork processing plants came under fire recently as Tyson filed a petition to have a $5.8 million judgment overturned. The judgment was initially awarded following a case in U.S. District Court that found workers at a plant in Iowa had not been properly compensated for the time it takes to sanitize equipment when their shifts end, nor the time involved in putting on and taking off protective gear required for working at the plant.

At the time the case was filed, Tyson paid workers an additional four to seven minutes’ pay each day for these activities, but workers said the time actually used in performing the activities was much greater – sometimes as much as 30 minutes. Tyson responded by increasing the extra pay to 20 to 22 minutes’ extra pay for each shift for its hourly employees.

The workers’ legal team countered by claiming Tyson violated the Fair Labor Standards Act (FLSA) as well as state laws by neglecting to pay overtime for actual time worked, and the class action suit was filed and won.

LA DOT Defends Against Claims of Excessive Overtime

June 22, 2015 | by Joseph & Kirschenbaum LLP

A recent audit of the Los Angeles Department of Transportation revealed substantial overtime pay for workers in the traffic paint and sign division – on average, workers were paid $48,000 in overtime compared to just over $8,000 for workers in other city departments, including police and firefighters. But while the figures may sound excessive, an audit found there wasn’t enough evidence to support a legal claim against the division. And what’s more, the workers say the additional overtime was earned.

According to Los Angeles Department of Transportation General Manager Seleta Reynolds, the overtime occurred during a time during the tenure of former Mayor Antonio Villaraigosa. During his time in office, more than 100 miles of bike lanes were commissioned and thousands of city streets had been recently resurfaced, requiring extensive hours of striping. At that time, the division employed just three crews and had access to only two trucks, resulting in significant backlogs of work which, in turn, caused the overtime to build up.

Since the audit, the city has approved the hiring of at least 20 additional employees for the traffic paint and sign division, sending a clear signal the division has been overworked.

L.A. Road Department Investigated for “Excessive” Overtime

June 15, 2015 | by Joseph & Kirschenbaum LLP

Los Angeles officials are pointing fingers at the city Department of Transportation, alleging department employees in the traffic paint and sign division might have padded their overtime wages to the tune of $3.3 million. An initial audit of department figures revealed a superintendent employed by the division received $155,310 in overtime pay, about twice his annual salary of $78,000.

According to Los Angeles City Controller Ron Galperin, four division supervisors were paid $70,000 in overtime pay. Overall, workers in the division were paid an average of $48,000 in overtime pay, compared to the average of $8,300 in overtime pay received by employees in other city departments, including employees in the city’s police and fire departments.

What triggered the audit? The City Controller’s office received a tip that employees in the division were claiming overtime pay for hours they did not actually work. And indeed, once the audit was initiated, overtime claims declined by 40 percent, according to the officials who completed the audit.

Former U.S. Speaker Accused of Sexual Abuse Against Former Student

June 8, 2015 | by Joseph & Kirschenbaum LLP

Dennis Hastert, retired Speaker of the U.S. House of Representatives, is under investigation for sexual abuse against a former male student, which allegedly occurred at a school where Hastert worked as a teacher until 1981. The investigation was initiated after the FBI became suspicious of several large cash transactions involving Hastert and totaling $1.4 million. While this isn’t technically a sexual harassment case, we wanted to talk about this story for two reasons: 1) it’s a huge news item that has many people discussing just what is and what is not appropriate when it comes to conduct at work and at school; and 2) allegations of abuse or harassment at work often boil down to “he said, she said” type arguments, and this story illustrates the kind of polarization that such arguments can create.

Federal authorities levied charges against Hastert, whom they allege lied to the FBI about why he was making large cash withdrawals. According to the charges, the funds were being paid to the former student to keep the alleged abuse incidents secret.

The indictment also charges Hastert agreed to pay a total of $3.5 million to ensure the former student would not make the abuse public. Initially, Hastert withdrew $50,000 at a time to make payments, but after bank officials questioned the activity, he lowered the amount of each withdrawal to below $10,000. The large and consistent number of withdrawals attracted the attention of federal officials, who suspected Hastert was attempting to evade income reporting requirements.

Pa. Atty. General Supports Chief of Staff Despite Harassment Charge

May 25, 2015 | by Joseph & Kirschenbaum LLP

Pennsylvania Attorney General Kathleen Kane doesn’t intend to remove Chief of Staff Jonathan Duecker from his post, despite allegations by Deputy Attorney General Kathleen Kluk accusing Duecker of sexually harassing her. Duecker, who had headed the Bureau of Narcotics Investigation, was promoted to chief of staff in early May.

Kluk says Duecker ran his hand up the back of her shirt and touched her skin; she also alleges that he placed his hand on her thigh during a dinner with other narcotics bureau agents.

Kane’s communication adviser Chuck Ardo said Kane believes the claims are being made to undermine her, and he added that, after the incident, Duecker “went through his chain of command to request they look into it. The chain of command looked into it and felt no further action was warranted.” Ardo added that it’s unclear whether an investigation was ever initiated under the attorney general’s Office of Professional Responsibility, the attorney general’s version of an internal affairs unit.

L.A. Businesses Seek to Count Tips Toward Minimum Wage Requirements

May 18, 2015 | by Joseph & Kirschenbaum LLP

As Los Angeles city leaders ponder the steps they need to take to increase wages across the city, business owners are pushing hard to have tips counted toward minimum wage requirements for workers in the restaurant industry and other service industries where tipping is more common. Currently, California labor laws prohibit business owners from counting tips toward minimum wage requirements. But area restaurant owners claim increasing minimum wage levels across the city will force them out of business entirely unless they can use tips to offset their obligations.

The California Restaurant Association has been working to rally support. In response, state Assemblyman Tom Daly recently introduced association-sponsored legislation to loosen regulations that prohibit counting tips toward minimum wage, but he indicated the legislation failed to garner enough support to move forward, despite backing from L.A. Mayor Eric Garcetti.

Studies in other areas, including New York, where tips can be counted toward wage requirements, have found that complex rules can result in workers being significantly underpaid.

DOL Lawsuit Seeks $600K in Back Wages for Restaurant Workers

May 11, 2015 | by Joseph & Kirschenbaum LLP

The U.S. Department of Labor has filed a lawsuit against the owners of two restaurants in Ames, Iowa, alleging they failed to pay workers the minimum wage of $7.25 per hour as well as additional payments for overtime as required by law.

The suit lists nearly $600,000 in damages for the wages it says are owed to the workers at both Mongolian Buffet and the now-defunct King Buffet. Both restaurants were owned by Li Ying Li and Jian Yum Zheng, a husband and wife who are both named in the lawsuit.

According to the suit, which was filed in late April, both servers and kitchen employees at the two restaurants were expected to work 72 hours per week. Some of the employees received fixed weekly wages of $450, which works out to $6.25 per hour.

Bay Cities Take the Lead in Minimum Wage Hikes

May 4, 2015 | by Joseph & Kirschenbaum LLP

San Francisco has joined its sister city, Oakland, in establishing the highest minimum wage rates in the country, increasing the citywide minimum wage from $11.05 to $12.25. The hike occurred on April 15th following Oakland’s raise in early March, and it marks an important step toward achieving the eventual goal of $15 per hour that’s targeted for 2018, according to the Service Employees International Union 1021.

The union hailed the move in a statement issued just prior to the rate going into effect, calling it a “mass movement on behalf of all the low-wage workers in our society.”

“The Bay Area is moving to develop the first regional standard in the country for wages and working conditions,” said Gary Jimenez, SEIU 1021’s Vice President for the East Bay.

CBS Network Executives Sued for Sexual Harassment

April 27, 2015 | by Joseph & Kirschenbaum LLP

A lawsuit recently filed in Manhattan Federal Court alleges that executives at CBS committed sexual harassment. The lawsuit, filed by celebrity reporter Ken Lombardi, describes an ongoing climate of harassment at the CBS office, where the 29 year old reporter worked for several years.

The story serves as a powerful reminder that the victims of sexual harassment need not always be women.

Documents filed in the suit allege that, at a 2013 holiday party, Duane Tollison, a senior producer and Lombardi’s boss at the time, “grabbed Lombardi’s crotch and kissed his neck.” Tollison followed up the following day with a written correspondence saying: “I wanted to apologize if anything I did offended you or crossed a line. I like to get a little crazy. If you weren’t offended, then let’s do it again. LOL How is your day so far? :)”