College Athletes (Still) Not Employees 2017-04-28T15:50:26-06:00

Posted on April 28, 2017

The District Court for the Northern District of California has weighed in on whether student athletes are “employees” under the law. On April 25, 2017, the Court dismissed a proposed class action brought by a former University of Southern California football player. The suit was against the NCAA and PAC-12 Conference for violations of the FLSA and California Labor Code.

In dismissing the claim, the Court relied in part on the Seventh Circuit’s 2016 decision holding former track and field student athletes were not employees. Here, the plaintiff argued college football is different from track and field because football brings in more revenue. No luck. Without addressing other policy implications, the Court declined to draw a line between revenue-generating and non-revenue-generating college sports. The Court also rejected the athlete’s comparison of college athletics to work-study programs, noting sports exist for the primary benefit of the students and not the school.

This is only the latest in the pay-for-play college athlete saga. Stand by.

Read the full decision: Dawson v. NCAA, et al., Case No. 16-cv-05487-RS (N.D. Cal. April 25, 2017).

Social Media Showdown II 2017-04-18T09:24:05-06:00

Posted on April 18, 2017

By Bill Wright

TheBlaze, Inc. and Glenn Beck (collectively “TBI”) have squared off against Tomi Lahren over a Facebook page. As reported earlier, Lahren sued TBI, claiming among other things, that they were blocking her access to social media. TBI has responded with a counterclaim against Lahren.

TBI asserts that they are in full compliance with Lahren’s employment agreement: they continue to pay her until her contract expires in September; they just are not broadcasting her opinions. Lahren, they say, is in breach of the same agreement because she has made unauthorized, public disclosures about TBI and because she has made (and is scheduled to make) personal appearances without TBI’s permission (as required by the contract).

As for the Facebook page, TBI declares that it created, owns and administers the Facebook page; that Lahren, and other TBI employees, have editorial rights for the page; and that TBI merely won’t let her post statements on the page that violate her contract. The unspoken issue, of course, is what happens to the 4 million people who “like” her posts on the page. Should TBI have to transfer rights to the page so followers don’t have to go look for Lahren’s personal social media sites?

What do you think? It’s her name and image on the page, but TBI contracted for the rights.

Suspension Not Materially Adverse 2017-04-12T12:51:12-06:00

Posted on April 12, 2017

By Bill Wright

A retaliation claim under Title VII requires proof of a “materially adverse action.” Short of discharge, what could be more materially adverse than a suspension? The Fifth Circuit Court recently ruled that even a suspension is not always materially adverse. The plaintiff will have to show that the suspension caused “physical, emotional, and economic burdens.” Cabral v. Brennan, No. 16-50661 (5th Cir. April 10, 2017).

Don’t try this at home. An employee might well believe any suspension to be stressful, depressing, and/or a threat to paying the rent. Here the plaintiff presented no testimony or other evidence that he was unhappy to be off work for a couple of days.

Social Media Showdown 2017-04-11T09:49:23-06:00

Posted on April 11, 2017

By Bill Wright

Commentator and writer Tomi Lahren has filed suit in Dallas County, Texas, against Glenn Beck and TheBlaze, Inc. (“TBI”). Judging from the complaint, the issues include the defendants’ continuing exercise of control over a Facebook account.

Lahren alleges that, after expressing her personal opinions on The View, the defendants stopped producing her shows and banned her from posting to the Facebook account or other social media. The contract attached to the complaint includes a provision that TBI had no obligation to use her material and only had to continue her Salary/Benefits. The complaint alleges that the defendants continued to pay her. Nevertheless, among other things, Lahren seeks a TRO prohibiting the defendants from interfering with her postings on any social media, including Facebook, Twitter, and Instagram.

Does the contractual provision that TBI owns all material Lahren produces as an employee, perhaps together with the defendants’ actual administrative control over the social media accounts, give TBI the power to block Lahren’s use of existing social media accounts and her access to the millions of people who clicked to “follow” Lahren? The answer to the complaint is yet to be filed, but we’ll keep an eye out for it.

Sexual Orientation Discrimination Illegal 2017-04-04T17:23:53-06:00

Posted on April 4, 2017

By Bill Wright

The Seventh Circuit Court of Appeals is the first federal appellate court in the country to rule that Title VII already protects employees from discrimination because of sexual orientation. In every other case that has previously reached a federal court of appeals, the court has ruled the employee could proceed only on the basis of a sex stereotyping claim. Employees could claim that they were discriminated against because, as men, they were not sufficiently masculine, or as women, they were not sufficiently feminine. But employees had no claim for discrimination based on their status as homosexuals.

The Seventh Circuit took the narrowest possible path. It held that homosexuality is attraction to a person of one’s own sex and, therefore, discrimination because of sexual orientation is discrimination that only occurs because of one’s own biological sex. Or, to put it another way, sexual orientation is the sex of the person with whom the employee associates. Title VII has always made it illegal to discriminate against an employee because the employee’s friends and lovers are of a different race. Now, the same reasoning applies to sex.

The Supreme Court might yet take up this case, or another court’s ruling on the same issue. When it does, expect the argument to dwell on the Seventh Circuit’s comparison of sexual orientation discrimination to Constitutional issues the Supreme Court has already seen. Stay tuned. Hively v. Ivy Tech Comm. Col., No. 15-1720 (7^th Cir. April 4, 2017).

EEOC Held to Relevance Standard 2017-04-03T09:59:51-06:00

Posted on April 3, 2017

By Bill Wright

The Supreme Court today ruled in McLane Co. v EEOC, No. 15–1248 (April 3, 2017). The actual issue was narrow: whether a court of appeals should substitute its own judgment for the trial court’s judgment when deciding whether to enforce an EEOC subpoena. The Supreme Court answered that question: “no,” but in describing its reasons, the Court re-emphasized the standards the trial court applies. The trial court should review an EEOC subpoena to determine that the underlying Charge is valid and that the information sought will cast light on the Charge. The information sought should not be too indeterminate; the subpoena should not be issued for an improper purpose; and gathering the information should not be unduly burdensome.

In its ruling, the Court shot down several court decisions that suggested the courts should “defer” to the EEOC on what information is relevant to a Charge. Relevance is broadly construed, but the courts exercise substantive review. The EEOC does not have a free hand to collect just anything it wants.

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