Employment Archive

Ruth’s Chris Steak House Faces Discrimination Class Action

October 18th, 2011. By

Been to a Ruth’s Chris Steak House? Aside from it being a tongue twister (try saying “Ruth’s Chris” fast ten times), once you get inside you’ll notice it looks very…boys’ club.

It’s that solid wood thing going on that’s characteristic of most bigger name steak houses. Like Smith & Wollensky. Or Peter Luger (though Luger’s is missing those white lint-producing tablecloths). Outback, Longhorn’s, Morton’s…same drill. And the handles on those steak knives—if you didn’t know any better you’d think you were handling a Winchester Model 1895.

No, not much feminine going on there. So it seems almost apropos that a sexual discrimination lawsuit would somehow crop up in the midst of all that manliness. And so one has—for Ruth’s Chris Steak House.

A group of current and former female employees has filed a gender discrimination lawsuit against Ruth’s Chris. Their complaint alleges that female employees have been subjected to: lower compensation than their male counterparts; sexist comments; and harsher disciplinary action than that which is doled out to the guys there.

The women are seeking class action status for this one, and if gets certified the class would include all female Ruth’s Chris employees who worked at the restaurants or the company headquarters from September, 2006 to the present.

To quote from the lawsuit (Bush v. Ruth’s Chris Steak House, U.S. District Court, District of Columbia, No. 10-01721): “The work environment at RCSH [Ruth’s Chris Steak House] is one that is demeaning to women, reflects a culture of male domination and female subjugation, and is a causative factor in the discrimination against women in compensation, promotion, and termination.”

What’s interesting here is that the “Ruth” in Ruth’s Chris was actually Ruth U. Fertel, who purchased Chris Steak House in New Orleans in 1965 and got the whole thing going. She passed away in 2002. One can only wonder what the successful, entrepreneurial businesswoman who created this businessman’s beefery would think of this…

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Posted in Class Action, Emerging Issues, Employment | No Comments »

Hollywood Lawsuit #2: PR Peeps Show up at Events, Don’t get Paid?

October 5th, 2011. By

The difference between this Hollywood lawsuit and yesterday’s post is that this one comes from a PR Rep who was actually on payroll.

Seems Daniel Malakhov—who worked for major PR firm Rogers & Cowan—filed a lawsuit against the firm alleging that he and other Rogers & Cowan publicists were required to work PR events after hours (when else are they typically?)—but they did not receive overtime pay, meal breaks or rest breaks. I suppose it has the makings of your basic California overtime lawsuit, if not perhaps that of a script-worthy plot line.

And let’s face it, if you’ve ever attended a PR event of any sort, it’s the PR folks who are hustling around, playing meet & greet, and ensuring all runs smoothly. Heck, even bathroom breaks can be hard to come by. It’s easy to see where overtime pay could be in order.

Apparently, too, the lawsuit claims that Rogers & Cowan didn’t mandate attendance at PR functions, but in making them voluntary made it clear that failure to attend such events would negatively affect their chances of career advancement.

So Malakhov is thinking bigger here—it’s Hollywood, after all. He’s seeking class action status on this one. And, Malakhov, showing a bit of altruism (?), is looking out for his PR brethren and filing the class action on behalf of all the firm’s employees.

The class action seeks the usual suspects: back wages and damages–along with an injunction that would force Rogers & Cowan to change its after-hours work policies.

In terms of the injunction, however, US District Judge George H. Wu ruled last week that Malakhov could not seek the injunction as Malakhov, himself, could no longer benefit from it as he is no longer an employee of the firm. Needless to say, Malakhov’s side is saying that to reject the injunction would mess with the the ability for the lawsuit to help those current employees who are seemingly still at the mercy of Rogers & Cowan’s existing  (alleged) pay practices.

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Posted in Class Action, Emerging Issues, Employment | 1 Comment »

Hollywood Lawsuit #1: Black Swan Interns Name Wrong Defendant?

October 4th, 2011. By

It’s a long-standing reality that the words “glamour and prestige” don’t find themselves in the same sentence with “unpaid intern” in just about any industry. But, when it comes to movie production gigs or landing a plum internship at a fashion mag, they never do.

And there’s a reason for that.

The reason is, you’re there as low-cost help—ok, exceedingly low-cost help—for which in return you get to learn, potentially come within 50 feet of the talent or score some swag—and—and here’s the biggie—you get to pay your dues. Why? Because if you’re going for an unpaid internship you’re most likely trying to rack up resume bullet points (or, nowadays, LinkedIn blurbs) and, btw, you most likely don’t have enough of those bullets and blurbs to actually land a paying gig.

Ahh, but that harsh reality has not stopped Alex Footman and Eric Glatt from filing a labor lawsuit against Black Swan movie production company, Fox Searchlight. Indeed, they’re seeking class action status. And back pay. And an injunction prohibiting Fox Searchlight from improper use of unpaid interns.

It seems both Footman and Glatt were given the opportunity to work as unpaid interns on the flick. But they were treated badly—badly as in having to get coffees and lunches. I don’t know what they expected, beyond what the FLSA outlines as criteria for an internship at a for-profit,  but I’m sort of glad after seeing the movie that no one at the helm offered them an internship manning the camera, making final edits—or doing Natalie Portman’s makeup.

The FLSA internship guidelines include the following six criteria:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be  impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

It’s probable, or at least highly arguable, that Footman and Glatt got training & experience, got an incredible credit on their resumes, didn’t displace anyone, were supervised, probably got more out of the deal than the production company did, did not have any promise of a job ex post facto and weren’t paid.

Public sentiment (as in comments I’ve been reading across the web on this story) seems to support the notion that perhaps Footman and Glatt have been living in some self-entitlement fairyland in which they’ve interpreted an unpaid internship to equate something akin to an actual new hire program. You know—where the red carpet (no pun) is rolled out for that honeymoon phase of employment…the company’s vision statement handed over in colorful PowerPoint…the new hire welcome luncheon…the mentor program…the benefits enrollment…

I’m usually all for the down-trodden workers—those who are really being ‘used and abused’—like the alleged abuse going on over at that Amazon warehouse. But somehow, this Black Swan intern lawsuit just doesn’t seem to have enough going for it for me. Maybe I feel this way even more so as a result of Fox Searchlight’s official response to the lawsuit—a key excerpt of which is here:

“These interns were not even retained by Fox Searchlight and, in fact, were working for the production company that made Black Swan well before Fox Searchlight even acquired its rights in the film. These individuals were never employed as interns or retained in any capacity by Fox Searchlight, which has a proud history of supporting and fostering productive internships.”

If indeed true, it just makes a mockery out of things here even more—and may make plaintiffs Footman and Glatt black sheep of the film industry (ok, couldn’t resist that one). It sort of helps your cause when you sue the right defendant, right? And, I can only postulate that well, let’s face it, if you want your lawsuit to grab headlines, better to go with a bigger name defendant like Fox Searchlight, right? (ps, Fox Searchlight’s official response also stated that it was an attempt to grab media attention; it was reportedly director Darren Aronofsky’s production company who had initially brought Footman and Glatt on as unpaid interns).

We’ll have to monitor this one, but in the meantime, it’s been announced that Darren Aronofsky is set to direct  the new film, Noah. Word to the unwise (and unpaid) interns who are chomping at the bit to be a part of this one: don’t forget your wellies.

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Posted in Celebrity, Class Action, Employment | No Comments »

Amazon.com Warehouse Worker Complaints get Outed

September 20th, 2011. By

If a company pays to have private ambulances and paramedics on-site at its warehouse facility on hot days, does that tell you something?

I don’t know about you, but if I’m working there, it would tell me that there’s an added element of risk to my workday. Risk of things like heat exhaustion, heat stroke, heat cramps, heat rash…particularly, if I’m working at an Amazon.com warehouse where working conditions include long hours (8-12 hour days, sometimes with mandatory overtime) and, according to an Amazon.com Warehouse Associate-Picker job posting, I’m lifting up to 49 lbs of merchandise at a time.

Such conditions were the focus of a recent expose done by The Morning Call‘s Spencer Soper. The Morning Call interviewed a total of twenty current and former Amazon.com warehouse workers on working conditions at Amazon’s Breinigsville, PA warehouse. What Soper found out was a bit disturbing.

The worker allegations included accounts of:

  • The heat index in the warehouse reaching 102 degrees on June 2, 2011 and 15 workers collapsing;
  • The heat index hitting 110 degrees on the third floor of the warehouse;
  • Workers being pressured to continue working and “make rate” (i.e., productivity levels) in extreme heat to avoid risk of job loss;
  • Workers who were given ‘voluntary time off ‘ if the heat index exceeded 110 degrees—but who were subsequently given points—Amazon.com’s version of demerits that can add up over time to job loss—unless a doctor’s note was provided. (It’s reported that Amazon’s policy on this has now changed; workers who head home due to heat lose pay for the hours missed, but they do not get points).

Sounds like an employer-of-choice to me.

Being a bit jaded, I went over to Glassdoor.com to check out the employee (staff and contract) reviews of work life at Amazon.com. I scanned the warehouse- and distribution-related entries and found that the PA warehouse was not just a bunch of disgruntled workers—such gripes are seemingly pervasive at Amazon.com: Long hours. Pressure to make rate. Micro-managing. Mandatory overtime. Points. Continual churn of contract or temp workers who seek full-time status, but never get it.

So much for the “fun” work environment that Amazon’s (or actually, Integrity Staffing Solutions) job postings tout.

Needless to say, some Amazon workers had made complaints to OSHA. And, in fairness, according to The Morning Call article, Amazon’s Allen Forney—the PA site safety manager—has also reported to OSHA the heat-related incidents and how Amazon has responded to such incidents on days of excessive heat.

Forney stated in a letter to OSHA (6/13/11) that on 6/3/11, six “employees were treated at a local hospital ER for non-work related medical conditions triggered by the heat” (note the “non-work related”…CYA all the way). Of course, OSHA does require that employers must “Notify OSHA within 8 hours of a workplace incident in which there is a death or when three or more workers go to a hospital.”

Forney also notes that Amazon has put in place measures such as adding fans; installing heat index sensors in March that alert managers when the index rises above 90 degrees; and purchasing ‘2,000 cooling bandannas’ and cooling vests for workers. Managers also ‘walk the building’ to ensure workers get enough water. And, when the temperature is between 90 and 99 degrees, workers get an additional five minutes of break time; if the temp hits 100 to 114 degrees, workers ‘typically’ get a five-minute break every hour, and ‘heavier work’ gets moved to cooler times during the day. Gee, thanks.

Of note, it has to get to 115 degrees before, according to Forney, “the senior manager on duty will decide whether to close down the entire shift.” Yes, 115 degrees.

For the record, as fans seem to be a big part of the heat index management plan at Amazon.com, a quick visit over to the CDC (Centers for Disease Control and Prevention) provided this regarding use of fans for heat-related symptoms:

Electric fans may provide comfort, but when the temperature is in the high 90s, fans will not prevent heat-related illness. Taking a cool shower or bath or moving to an air-conditioned place is a much better way to cool off. Air conditioning is the strongest protective factor against heat-related illness. Exposure to air conditioning for even a few hours a day will reduce the risk for heat-related illness. Consider visiting a shopping mall or public library for a few hours.

The inclusion of OSHA in all this begs the question, “so what did OSHA do about it?”

OSHA issued recommendations. OSHA recommended that Amazon reduce warehouse temperatures and humidity, but OSHA did not provide the temperature at which the warehouse should be maintained. OSHA also recommended hourly breaks in a cool area, and informing workers and
supervisors of the actual heat index or temperature in order for them to increase
monitoring as it gets hotter, and to provide personal fans at each work station. (Didn’t I just quote the CDC as saying fans wouldn’t help in preventing heat-related illness? Go figure.)

So OSHA falls short of actually putting a stake in the ground as to what temperature is acceptable for safe working conditions—and as a result, I can’t help but put a little blame on OSHA’s shoulders. If you only follow what you’re being mandated to do, well… But common sense at the very least should prevail over at Amazon.com. When you need to hire ambulances and paramedics and park them right outside your warehouse (next the the break truck?)—that should tell you something. Likewise, when workers are passing out or leaving to go home or being carted off the the hospital, it should tell you something.

And in the interim, I have something to tell Amazon.com—that lovely air conditioning unit shown above cools up to a 4,000 square foot area—and it’s available on your own damn site for $8,295.

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Posted in Employment | 30 Comments »

Understand the Pharmaceutical Representative Overtime Lawsuits? Here’s Help

March 25th, 2011. By

If not, you’re not alone. In fact, even the courts have reached contradictory rulings in the pharmaceutical representative overtime lawsuits they’ve seen. While the pharma reps won the Novartis lawsuit, they lost the Johnson & Johnson and GlaxoSmithKline lawsuits. Those losses, however, don’t mean that pharmaceutical sales reps should just give up. In each case, the judges relied on different legal issues and exemptions, which is how such different results were achieved. Pleading Ignorance takes a look at what’s been going on…

First, the Backstory: the Fair Labor Standards Act 

Under the Fair Labor Standards Act, certain employees are considered exempt from overtime pay. Those exemptions include outside sales employees and people who are considered “administrative”. Outside sales employees are considered exempt because they are paid on commission and therefore have an unlimited earning potential. Furthermore, many outside sales people work independently of an office and therefore have a say in what hours they work and how they go about their job. To be considered exempt from overtime pay, however, outside sales people must spend at least 50 percent of the time in their job involved in sales. 

Administrative people are those who exercise independent authority, judgement or discretion in their job. They have a great deal of discretion in their job activities and how they fulfill their employment requirements. 

Lawsuits have been filed against various pharmaceutical companies alleging that pharmaceutical sales reps do not fit either the outside sales exemption or the administrative exemption. 

Novartis Sales Rep Overtime Lawsuit

In the Novartis lawsuit, the court found that the pharmaceutical reps were misclassified as exempt from overtime pay—meaning they should receive pay for overtime hours worked. In reaching the decision, the court found that Novartis sales representatives were not directly involved in the sales transaction. Instead, the reps informed physicians of a product’s benefits and encouraged physicians to prescribe Novartis products. At no point during the visit did the sales rep actually engage in a sales transaction. 

Furthermore, the court found that the Novartis reps didn’t fall under the administrative exemption because Novartis controlled the sales pitches and reps were not allowed to deviate from that pitch. Additionally, the reps did not have the authority to in any way direct or interpret Novartis policies or procedures. Because the courts found the Novartis reps were not exempt under the outside sales or administrative rules, the reps are therefore, according to the courts, eligible for overtime pay. 

Johnson & Johnson Sales Rep Overtime Lawsuit

A lawsuit against Johnson & Johnson, however, resulted in a different decision. In that case, the pharmaceutical sales representative was found to be exempt from overtime pay under the administrative employee guidelines. In that case, the court found that the plaintiff was able to develop her own itinerary, could visit some doctors more frequently than others and was expected to develop a plan to obtain more sales. The court found that the plaintiff worked without direct oversight most of the time and therefore had discretion and independent judgment required for the administrative exemption. 

GlaxoSmithKline Sales Rep Overtime Lawsuit

In GlaxoSmithKline’s lawsuit over pharmaceutical representative overtime pay, the courts backed GlaxoSmithKline’s decision not to pay the reps overtime. In this case, unlike Johnson & Johnson, the court determined that GSK sales reps fall under the guidelines of outside sales representatives because they are motivated by commissions and they have freedom to work outside the office. 

So it currently appears that whether or not a pharmaceutical rep is eligible for overtime pay is somewhat determined by which court hears the lawsuit and by which company you work for and how much authority you have in your job. 

The court’s decision in GSK actually contradicted a brief filed by the US Department of Labor that supported pharmaceutical reps being paid overtime. So, even though the Department of Labor supports overtime for pharmaceutical reps, there’s no guarantee that the courts will agree with it. More lawsuits are still to come and the Supreme Court might wind up determining the whole thing in the end. As of now, though, there’s no reason for pharmaceutical representatives to give up the fight.

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Posted in Drugs/Medical, Emerging Issues, Employment, Pleading Ignorance | No Comments »

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