In a Goldilocks-Esque Decision, the Eleventh Circuit Finds a “Similarly Situated in all Material Respects” to Be Just Right 2019-04-01T14:04:55-06:00

Posted on April 1, 2019

What does it mean within the context of the McDonnell Douglas burden-shifting framework for a plaintiff to show she was treated less favorably than other “similarly situated” individuals? The U.S. Court of Appeals for the Eleventh Circuit has cleared up this oft-debated aspect of a plaintiff’s prima facie burden in Lewis v. City of Union City by holding that “similarly situated” means “similarly situated in all material respects.” On March 21, 2019, sitting en banc and ruling in favor of an employer on summary judgment, the Eleventh Circuit nixed other “similarly situated” standards and instead espoused its new “similarly situated in all material respects” standard. This new standard, and the Court’s application of it, is a big win for employers, but it leaves open questions about what aspects for comparison are indeed “material.”

In this case, the plaintiff argued for the Seventh Circuit’s approach, which finds employees to be “similarly situated” so long as the distinctions between them are “not so significant that they render the comparison effectively useless.” The Eleventh Circuit rejected this approach, calling it “too lax,” and explained that, if adopted, it would eliminate the “apples-to-apples” comparison required to determine if an employer has engaged in discrimination. The employer argued for a “nearly identical” standard, which the court rejected as “too strict.” In the real word, true doppelgangers are rare, and, moreover, exact correlation isn’t necessary to show discrimination.

Thus, rejecting standards that were too lax and too strict,, the Court created a middle ground and put forth the “similarly situated in all material respects” standard. Under that standard, ordinarily, a similarly situated employee will have some key similarities to the plaintiff, including: (1) having engaged in the same basic conduct (or misconduct); (2) having been subject to the same employment policy, guidelines, or rule; (3) will (typically) have worked for the same supervisor; and (4) will share the plaintiff’s employment or disciplinary history. Notably, the Court explained that the comparator need not have the same job title or precisely the same job functions.

The Court’s new standard, and particularly its application of that standard, is a significant win for employers (at least those in the Eleventh circuit, where Alabama, Georgia, and Florida sit). However, what is and is not a “material” basis for comparison will always be a moving target; it will depend on the facts of the case and on how broadly or narrowly a court views each factor. But, at least now employers have some guideposts.

Moonlighting Police Officers Are Not Independent Contractors 2019-02-13T16:56:08-06:00

Posted on February 13, 2019

By James Korte

Even the courts have noticed that U.S. workers often hold more than one job. Yesterday the Sixth Circuit Court of Appeals held that police officers who worked second jobs as security guards or directing traffic were not independent contractors, but actual employees of the security company. The police officers typically worked full-time for local police departments and, when off-duty, worked for the private security company to supplement their income. The company argued the officers were independent contractors because they could decline assignments, were required to use personal “police-style” vehicles, had no direct supervision, and did not depend on the company for their income. They had a primary income from the police department.

US Department of Labor argued that the company (and the District Court) over-emphasized the fact that the officers’ second job was not their primary source of income. The Sixth Circuit agreed. In rejecting the lower court’s “income-based rule,” the Court highlighted that whether a worker has multiple sources of income says little about the worker’s employment status.

Lesson learned? Regardless of whether a worker works for one, two, or more companies at the same time, employers have to look realistically at the factors that determine employee status. One key fact is whether the worker’s tasks are integral to the company’s business. Here a security company had the police officers acting a security guards. That work was integral to the company’s business.

Acosta v. Off Duty Police Services Inc., Nos. 17-5995 and 17-6071 (6th Cir. Feb. 12, 2019).

Dear Santa 2018-12-22T09:00:46-06:00

Posted on December 22, 2018

John Alan Doran

Dear Santa,

We all got together and put together our wish-list for your visit. We realize it’s been a fascinating year on the Labor & Employment front. And we don’t want to seem greedy (and end up on the naughty list) in light of all the recent developments in Labor & Employment law that have started to level the playing field for employers. But much still needs to be accomplished for employers in order to encourage job creation and reinvestment in our workforce. Stemming the tide of frivolous litigation and abuse of agency authority would go a long, long way toward that end. And so, dear Santa, here are just a few things we would like to see in or around our tree next week:

A cooperative Congress that can actually get things done. Employers and employees, alike, suffer from the uncertainty of our current, volatile political climate.
We need more judges. Lots more judges. Federal judicial vacancies are delaying justice for employers and employees at a mind-boggling pace, and the highly politicized process of appointing new judges is a mess.
A national, unified approach to paid leave. For multi-state employers, navigating the hopelessly contradictory state laws governing paid leave is daunting, if not impossible.
An end to certain states “under-turning” the Supreme Court’s arbitration jurisprudence at every opportunity. While some states refuse to believe this, there is a controlling federal policy favoring arbitration agreements even in employment, it’s the law of the land.
Marijuana-induced clarity. As more and more states roll out pro-marijuana laws, employers are increasingly caught between a rock and a hard place given the conflicting state and federal laws governing marijuana use.
An end to EEOC overreach and litigation abuse. Courts have repeatedly called out the EEOC for its over-the-top bullying and litigation abuse. It’s time for something to be done legislatively to curb the agency’s abusive conduct.
Simplified, unified, and practical rules determining the existence or non-existence of independent contractor relationships. The current hodge-podge of separate and distinct contractor tests throughout the states and conflicting tests within the federal government make it nearly impossible to enter into contractor agreements with any assurance that there will not be expensive litigation to follow.
Conclusive guidance on LGBT and related protected categories. Legislative clarity in this arena is long overdue.
A simplified, and realistic approach to FLSA white-collar exemptions, and a less pedantic enforcement strategy from the DOL.
A Senate vote on the countless agency vacancies that remain open but ready to be filled. Positions such as the Assistant Secretary of Labor—OSHA, and many more, could be filled in an instant, but won’t be due to gridlock.

And, for a stocking stuffer, how about amending labor and employment laws to make patently clear that the party who prevails in a lawsuit or agency proceeding shall recover costs and attorneys’ fees. File a bogus unfair labor practice charge, and you pay the price. Initiate a baseless FLSA collective action, and you pay the price. The playing field has been turned on its side in this respect, as employers are forced to settle frivolous or specious claims simply to avoid the costs of litigation. When both sides face the specter of litigation expenses, there will be less abuse and more efficient processing of legitimate claims.

Admitting Agency Status May Limit Claims 2017-03-10T14:35:48-06:00

Posted on March 10, 2017

By Ted Olsen

When an employee injures someone, the employer might be sued based on the employee’s conduct within the scope of his/her employment (“respondeat superior” liability), or the employer might be sued for its own conduct, or both. A recent Colorado Supreme Court decision created a new rule of law to simplify this kind of case.

Assume a trucking company is aware that “Ed” has a seizure disorder that causes him to blackout unpredictably. The trucking company learned of Ed’s disorder during the hiring process, but hired him anyway. Maybe the company also has a history of overlooking drivers’ DUI convictions and substance abuse. One day Ed slams his rig into two cars on an interstate highway, resulting in fatalities. Ed denies having had a seizure and says the two cars hit each other and the bundle of commingled metal then spun into the front of his rig, making the collision unavoidable. Nevertheless, Ed is sued for negligence (i.e. his allegedly careless driving) and the company is sued for Ed’s negligence under the respondeat superior theory. Ordinarily, the company might also be sued for direct negligence, i.e. for its negligence in hiring and supervision of potentially dangerous drivers. The trucking company would then face wide ranging discovery into its hiring practices.

In the case, In re Ferrer, Case No. No. 15SA340 (Colo. February 27, 2017), the employer faced this kind of double-barreled liability, but the Colorado Supreme Court ruled that, when a plaintiff asserts a respondeat superior negligence claim against an employer for injuries caused by one of its employees, and the employer admits that its employee was acting in the course and scope of employment when the injuries occurred, then, as a matter of law, the plaintiff may not assert a separate claim based on the employer’s own negligence. So, in our example, if the employer admits that Ed was driving for the company when the fatalities happened, the plaintiff is not permitted to bring up the company’s own alleged negligent hiring and supervision.

Of course, in many cases (e.g. intentional assault or homicide), an employer will not want to admit that the accused employee was acting within the scope of employment. But when the admission is unavoidable, the employer might benefit from the admission by limiting its own direct liability.

Chambers 2016: S&H Attorneys Recognized 2016-06-20T12:14:39-06:00

Posted on June 20, 2016

A sincere thank you to our clients who recognized S&H’s L&E group in the 2016 Chambers USA rankings. According to Chambers, Sherman & Howard’s Labor & Employment group is “A thriving practice that retains its stellar reputation as a go-to firm for handling a range of labor and employment matters on behalf of employers. Noted for its ability and track record in bet-the-company cases including whistleblowers, disability access and union expansion issues [the team] draws on a deep bench of experienced attorneys that provides the full range of labor and employment expertise.” Direct quotes from our clients include: “The firm is very professional, very responsive and knowledgeable.” “They provide practical advice – they know our business well, know what will work and what won’t, and try and find a solution for that.”

Ray Deeny, John Alan Doran, Chuck Newcom, Ted Olsen, Bernie Siebert and John Wymer all received individual rankings. 30 S&H practice groups and lawyers in all were recognized in this year’s edition. Click here to read the full press release.

S&H Lawyers Dish On 2015 2016-05-12T13:27:07-06:00

Posted on May 12, 2016

Click here to read the Wolters Kluwer article “2015 Review-2016 Forecast: Federal Agencies on the Move.”

Our Top 5 Requests for Santa 2015-12-24T11:34:11-06:00

Posted on December 24, 2015

Dear Santa:

We’ve been very good management-side labor and employment lawyers this year. We have fought zealously for our clients and won big cases throughout the country. We have returned client calls in a timely manner and provided practical, effective legal advice. We have contributed to the development of labor and employment law nationally and locally. We have supported our local communities through charitable and pro bono efforts. And, we have blogged like crazy. Let’s face it, Santa, we rock!

And so, Santa, we ask for only five modest presents under our tree this year:

Repeal the NLRB’s quickie election rules. Those unions have been really naughty and they don’t deserve the indescribably unfair tactical advantage they derive from these kangaroo court rules.
The DOL needs to back off its veiled threat to meddle with the white collar duties tests when it publishes the new FLSA rules in 2016. The DOL has proved that it is extremely skillful at confusing the heck out of anything it touches, and employers need more certainty, not more confusion.
The Supreme Court needs to overturn the 8th Circuit’s decision in CRST Van Expedited. Reversing the 8th Circuit’s decision would revive a $4.69 million attorneys’ fees award against the EEOC and hopefully teach the EEOC an important lesson about government abuse of power.
The NLRB needs to abandon its proposed persuader rules. Like the quickie election rules, the persuader rules are intended to further tilt the playing field in favor of union organizers by making it even harder for employers to fight organizing campaigns without facing countless unfair labor practice charges.
Please make sure our clients and our non-union, non-agency blog readers have a joyous holiday season and an incredibly prosperous 2016.

Re-Claiming Credit 2014-08-25T11:21:37-06:00

Posted on August 25, 2014

By Bill Wright

When an employee leaves and sets up a competing business, may he or she claim experience for work done by the former employer? The Seventh Circuit recently considered whether an architect – a former employee of a firm – is entitled to advertise his personal experience “designing” the firm’s high profile projects. The issue arose under the Lanham Act, 15 U.S.C. § 1125(a). The court allowed the claim against the architect to go forward – for all the court could tell from the complaint, the architect might have been falsely claiming involvement in the project, or might have been falsely claiming to be the principal designer or one of the principal designers. The court ruled however that, when the facts fit, a former employer might have a Lanham Act claim against a former employee who falsely claims credit for the employer’s work. Truthfully claiming the experience probably does not raise a Lanham Act claim. M. Arthur Gensler Jr. & Associates, Inc. v. Strabala, No. 12-2256 (7th Cir. Aug. 21, 2014).

Federal Contractors Beware – Part 3 2014-08-01T15:35:16-06:00

Posted on August 1, 2014

By Lori Wright Keffer

Federal contractors beware. More changes are coming your way, again. On July 31, 2014, President Obama issued an executive order titled the “Fair Pay and Safe Workplaces Executive Order”. First, the order requires companies to disclose to the Government any labor law violations arising within the past three years before securing any contracts valued at more than $500,000. The labor law violations include violations of the FLSA, OSHA, the NLRA, Davis-Bacon, the Service Contract Act, FMLA, Title VII, the ADA, the ADEA, and more. For all but a small subset of federal contracts, contractors will also need to gather similar information from their subcontractors for any federal contract over $500,000.

The order also instructs companies holding federal contracts valued at $1 million or more not to require workers to sign arbitration agreements regarding alleged Title VII violations or alleged sexual assault or harassment torts, unless a valid arbitration contract already exists. The order further requires federal contractors to provide employees with information on their hours and wages, including overtime hours, pay, deductions, and other paycheck details. The General Services Administration will develop a website for contractors to utilize in reporting required information, both for this new order as well as for other reporting. Further details will follow.

Federal Contractors Beware – Part 1
Federal Contractors Beware – Part 2

Join Us For Our Annual Labor & Employment Seminar in Phoenix 2014-04-18T11:41:29-06:00

Posted on April 18, 2014

Workplace issues and challenges can be as complex and varied as the number of your employees. With Arizona heading the list of best states for expected job growth, according to Forbes magazine, the State of the State of Arizona Employment will be one of the subjects of the 2014 Annual Labor and Employment Law Seminar, conducted by the Arizona Chamber of Commerce and Industry and Sherman & Howard L.L.C.

Thursday, May 1 at the Viad Corporate Center, located at 1850 North Central Avenue in Phoenix, Arizona. Registration and breakfast will take place from 7:15 – 8:00 a.m. A variety of topics will be addressed from 8:00 – 12:00 noon. Click here for more information and to register for this event.