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A former personal assistant of Lady Gaga recently filed a lawsuit against the entertainer’s touring company claiming that she was improperly denied hundreds of thousands of dollars in overtime pay under both the Federal Fair Labor Standards Act (“FLSA”) and New York state law. O'Neill v. Mermaid Touring Inc., Civil Case No. 11-9128 (Southern District of New York, Dec. 14, 2011).  In support of her allegations, the former assistant claims that her position did not qualify for the “administrative exception” to overtime laws because she did not exercise any significant independent discretion or judgment in her role while she, essentially, worked around the clock in exchange for a fixed salary.  Although the assistant worked a mere 13 months for the pop star and was well-compensated for the position (pursuant to the complaint, she was initially paid $1,000 per week and, subsequently, an annual salary of $75,000), she claims that she was on call 24/7 to handle tasks that did not require any independent discretion or judgment and, accordingly, is seeking $380,000 in back overtime compensation for 7,168 overtime hours that she allegedly worked in the star’s home and while touring and traveling with her around the world. 

 

Cases such as these tend to catch our attention either because of the large amounts of money sought and/or because of the celebrity involved, but often their significance to more typical employment relationships goes unnoticed. 

 

Regardless of the ultimate merits (or lack thereof) or outcome of the lawsuit, the case illustrates two wage and hour issues that employers should be cognizant of: (1) the administrative exemption to overtime; and (2) the ways in which non-exempt, on-call employees should be compensated and/or treated.

 

Administrative Exemption to Overtime
Under the U.S. Department of Labor (“DOL”) regulations, an administrative assistant who is paid on a salaried basis and exercises significant independent discretion and judgment is exempt under the "administrative exemption." 29 CFR § 541.203(d). This exemption also applies to employees who exercise significant independent discretion and judgment in performing "office or non-manual" work. Challenges to the applicability of the exemption to executive or personal assistants are not uncommon.  Although some courts have expressed reluctance to rule that well-compensated individuals providing such assistance do not exercise "discretion and independent judgment,” case law remains unclear.

 

Non-Exempt, On-Call Employment
This case also serves as a reminder that on-call employment must not unduly restrict a non-exempt employee’s ability to spend his or her time away from the job.  The amount of restrictions imposed on a non-exempt, on-call employee’s time not at work will be considered in determining whether or not an employee should be compensated for on-call hours.  For example, if required to remain on an employer’s premises or within such a close distance that prevents the employee from using his or her time effectively or freely, the employee may be eligible to receive overtime pay under wage and hour laws. 

 

The Take Away
Compliance with wage and hour laws requires an understanding of what it means to be exempt or non-exempt from overtime obligations.  Further, employers of non-exempt employees are often unaware that some requirements of the positions may trigger payment/overtime obligations.  For example, if a non-exempt employee of a marketing group is required to attend networking events outside of normal working hours, such time must be paid.  Similarly, a building superintendent who lives at the building and is required to be “on-call” at all times may have to be compensated for all such “on-call” time if he is not permitted to leave the building (or travel beyond a limited distance) while off-duty but on-call.

 

Relevant to this personal assistant’s case, employers and individuals who retain personal or executive assistants should be aware of the employment risks associated with such employment and the need to pay such employees on a salaried basis and ensure that the assistants utilize independent discretion and judgment in performing their job duties in order to qualify for the protections afforded by the administrative exemption to overtime payment obligations.

 

For more information on this decision and how it might apply to your organization or employment, contact Amy Beth Dambeck, member of Stark & Stark’s Employment Group, via email: adambeck@stark-stark.com

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On January 11, 2012, the Supreme Court issued a unanimous decision in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (“Hosanna-Tabor”). The decision upheld a religious church-school’s termination of a teacher based on the “ministerial exception” and ruled that employment discrimination lawsuits are barred when the employer is a religious group or organization and the employee is one of the group or organization’s ministers. 

 

Both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 contain exemptions that entitle religious institutions to discriminate on the basis of religion – but they do not permit such institutions to discriminate on other legally protected basis, such as race, sex, or disability. The federal courts of appeals, however, have long recognized a broader, ministerial exception: a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations (“religious employers”) by employees performing religious functions. The circuits have been in agreement about the core applications of the doctrine to pastors, priests and rabbis, but have been divided over the boundaries of the ministerial exception when applied to other employees, particularly those whose duties are more secular in nature.

 

The question presented to the U.S. Supreme Court in the Hosanna-Tabor case was whether the ministerial exception applied to a teacher at a religious elementary school who taught a full secular curriculum and predominately engaged in secular duties, was a designated “called teacher,” taught religion classes, and regularly lead students in prayer.

 

Put a bit more simply: the Court was asked whether or not Cheryl Perich could sue her former church-school employer, the Hosanna-Tabor Evangelical Lutheran Church (“Hosanna-Tabor”), for discrimination under the ADA.

 

In this case, the EEOC filed suit on Ms. Perich’s behalf and against Hosanna-Tabor, claiming that the religious employer had unlawfully terminated her employment in violation of the ADA and, specifically, that it wrongfully fired her in retaliation for her threat to sue the church-run elementary school under the ADA.

 

In defense of the termination, Hosanna-Tabor claimed that Ms. Perich was a minister, and that, therefore, it had a First Amendment right to fire her for threatening to sue, which was contrary to their belief that Lutherans should resolve their disputes internally, and not within the courts.

 

In response, Ms. Perich argued that she was not a minister, just a teacher, and argued that Hosanna-Tabor had violated her federal statutory rights to protection against disability discrimination. Although most of Ms. Perich’s duties and teaching subjects were secular, she was a “called” teacher with some religious responsibilities, and the “called” designation was one conferred by the church. The U.S. Court of Appeals for the Sixth Circuit held that because, functionally, Ms. Perich was a secular teacher with few religious obligations, she was not a minister. As such, the Sixth Circuit concluded that Hosanna-Tabor did not have a First Amendment defense, and that Ms. Perich could pursue her ADA claims.  

 

In the Hosanna-Tabor decision, the Supreme Court rejected the Sixth Circuit’s analysis and concluded that Perich was a minister and, therefore, barred from pursuing her ADA claims.

 

The Supreme Court’s Decision
By the Hosanna-Tabor decision, the Court held that the Establishment and Free Exercise Clauses of the First Amendment serve as an absolute bar to employment discrimination suits brought on behalf of ministers against their religious employers; upheld the principle that it is impermissible for the government to contradict a church's determination of who can act as its ministers; and provided a fairly broad definition of “minister,” making clear that the designation is not limited to ordained clergy or their counterparts. 

 

The Court did not address whether or not the bar may also apply to other types of suits brought by ministers against their religious employers – such as breach of contract or tortious interference claims. 

 

Further, the Court did not articulate a rigid formula for deciding when an employee qualifies as a minister, choosing instead to apply a case-by-case approach which looks at the totality of the circumstances surrounding both the employee and the employment. 

In a Nutshell…

• The Court's decision confirms that the ministerial exception bars ministers from bringing employment discrimination suits against their religious employers.
• However, this bar only applies to employment discrimination suits brought by ministers, not employment discrimination suits brought by other lay employees.
• Further, the Court did not address whether or not the bar may also apply to other types of suits brought by ministers against their religious employers – such as breach of contract or tortious interference claims. 
• The decision establishes the ministerial exception as an affirmative defense, rather than a jurisdictional bar – meaning that unless the employer timely pleads the defense, it will be waived.

The Significance To Religious Employers and Employees
In light of this decision, religious employers must analyze whether an employee in question qualifies as a minister when making any employment decisions that could give rise to potential employment discrimination claims.  Such required analysis must keep in mind that the definition of a “minister” may be broader than one might expect. 

 

Further, because it is unclear whether or not the bar applies to other types of suits brought by ministers against their religious employers, such employers will still need to carefully evaluate all employment decisions for potential legal exposure – even for those employees who qualify as ministers.

 

Similarly, employees of religious institutions should be aware that, should the ministerial exception apply to them, they will be precluded from bringing employment discrimination claims against their employers and may be precluded from bringing other types of suits against their religious employers.  In addition, employees that may not consider themselves “ministers,” may, in fact, qualify for the designation, thereby being subject to the bar against bringing employment discrimination, and, potentially, other claims against their religious employers.

 

For more information on this decision and how it might apply to your organization or employment, contact Amy Beth Dambeck, member of Stark & Stark’s Employment Group, via email: adambeck@stark-stark.com

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As of November 7, 2011, the New Jersey Department of Labor and Workforce Development implemented a new notice posting requirement applicable to New Jersey employers. The required notice contains a detailed description of employer recordkeeping requirements under state employment laws and provides contact information for employees or their representatives to report potential violations. This new requirement is in addition to any other notice posting requirements to which a New Jersey employer is subject.

 

Under this new mandate, employers are required, by December 7, 2011, to: (1) post the newly published notice conspicuously in the workplace and (2) provide each employee hired prior to November 7, 2011 with a copy of the notice.  Further, any new employee hired after November 7, 2011 must be provided with a written copy of the notice at the time of hire.

 

The conspicuous posting requirement will be satisfied if: (1) the notice is placed on an employer’s Intranet or Internet site and (2) all employees have access to the electronic posting of the notice.  Otherwise, the notice must be conspicuously posted in areas commonly used for similar postings.

 

An employer may also choose to satisfy the distribution requirement by providing each employee with a written copy of the notice via e-mail.   If e-mail is not available, then a hard copy must be delivered to each employee and, in such circumstances, it is recommended that employers obtain a signed acknowledgment from each employee to evidence receipt.

 

Failure to comply with these notice and posting requirements could result in a fine of up to $1,000, as well as criminal penalties. 

 

New Jersey employers need to ensure that the notice is posted in the workplace and distributed to each employee no later than December 7, 2011.  In addition, employers should distribute copies of the notice to anyone hired on or after November 7, 2011 and must provide a copy of the notice to any new employees upon hire to ensure compliance with these new requirements.

 

A copy of the 6-page notice can be obtained through the following link to the New Jersey Department of Labor and Workforce Development’s website. For additional information, please feel free to contact me at 609.219.7452 or via email: adambeck@stark-stark.com.

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Facebook, Twitter, LinkedIn, YouTube, personal blog sites and other social media and networking sites have become a part of everyday life.  Not surprisingly, social networking and social media sites have found their way into the workplace.  While such sites can be an extremely valuable resource for both employers and employees, their use also gives rise to a variety of new legal issues, concerns and claims for employers to navigate.  With the advent of such issues, large and small employers alike are now recognizing the need to develop and implement policies to limit and control their employees’ work-related Internet posts as well as the employers’ own use of social networking sites in making hiring and employment decisions.

 

While social media can provide new ways to interact and respond to customers, social media activities by employees can create numerous problems for employers.   For example, a company can work for years to craft a positive image of itself to the public and its client base, only to have that image instantly tarnished by negative postings from employees. Other risks concern the disclosure of employers’ confidential, proprietary and/or trade secret information. Whether it may concern marketing plans, identity of customers or current projects, inadvertent distribution of such information by employees via social networking may significantly undercut a company’s business plans and strategies – even if the information is only unwittingly disclosed.
 

But it is not just the employee’s use of social media that warrants concern.  These sites often hold a wealth of information that may be useful in screening job applicants. In fact, many employers now use social networking sites to screen potential hires. However, in so doing, an employer may also learn about information that may later become the basis of a discrimination lawsuit. For example, what if photos or comments posted on a rejected applicant’s Facebook page revealed her membership in a class protected under federal or state laws - such as her race, age, health condition, political or religious affiliation, or pregnancy status?  Whether or not the information putting her in the protected class was a determining factor in a decision not to hire her, the fact that the employer checked the applicant’s Facebook page and was aware of that fact may give rise to an allegation of discrimination.
 

Recognizing these risks, many employers are wisely implementing policies to directly address the use of social-networking sites so that employees know exactly what is expected of them.  There is not a one-size-fits-all policy for employers.  Some businesses – such as those that focus on sales and marketing, may, in fact, depend on social media and networking sites and may even mandate their employees’ use of the sites as an essential part of their job duties.  Other businesses may wish to ban the use of social networking and media sites at work altogether.
 

Although there are inherent risks in the use of social media, employers can minimize such risks by evaluating the issues involved and adopting and implementing policies appropriate to their particular business and circumstances with a minimal investment of time and resources.  Development of a social media policy requires an understanding of the specific employer’s needs; the potential rewards and liabilities arising out of the use of social media for that employer; employees’ rights and liability issues; and the realistic social media use of its employees.  Once this analysis – whether formal or informal – is undertaken, an employer can establish appropriate policies for the use of social media to make decisions about job applicants and employees, to address employees’ use of social media – both at and away from work (when the activities directly affect the employer) and to ensure that the policies are consistently implemented.  With such policies and procedures in place, employers can maximize the benefits and opportunities presented by social media and networking, while limiting the potential pitfalls that accompany use of the Internet sites.

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The NuvaRing® Mass Tort is presided over by Judge Brian R. Martinotti, in the New Jersey Superior Court - Bergen County. Previously, counsel for both plaintiffs and defendants had chosen ten initial bellwether cases for case specific discovery and trial. On, March 3, 2010, Judge Martinotti held a Case Management Conference. During that conference, Judge Martinotti determined that the discovery deadline on the initial bellwether cases would be March 15, 2011, culminating in proposed trial dates some time in May 2011. 
 

As we have discussed in previous posts, studies have shown that the ingredients contained in the birth control product NuvaRing® have been linked to various forms of severe side-effects including: heart attack, stroke, deep vein thrombosis (also known as DVT or blood clots), internal organ damage, myocardial infarction and pulmonary embolism.
 

At Stark & Stark we pursue claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. Contact Stark & Stark to speak with one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturers of NuvaRing®.

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NuvaRing®, the combined contraceptive vaginal ring that is supposed to provide month-long birth control, is currently involved in a Multi-District Litigation (“MDL”) in the United States District Court for the Eastern District of Missouri.  Plaintiffs have advanced claims that NuvaRing® is responsible for injuries in some individuals.

The Court recently denied a motion by Defendants to dismiss the Master Consolidated Complaint in the MDL.  On August 17, 2009, Defendants filed a motion for certification of an interlocutory appeal.  Defendants seek the Court’s permission to challenge the denial of Defendants’ motion to dismiss.  In plain English, this means that Defendants are attempting to appeal in the middle of the ongoing case.  Defendants base their proposed appeal on the contention that the Court misapplied controlling precedent in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and the standards found in the Federal Rules of Civil Procedure.  Iqbal is a recent case that made it easier for courts to dismiss a Plaintiff’s complaint.  If the Court allows an interlocutory appeal, it will probably significantly delay the proceedings. 

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As most New Jersey employers and employees alike are aware, since January 1, 2009, payroll deductions have been taken to fund New Jersey’s Paid Family Leave benefit.  Paid leave benefits themselves, however, only become available as of July 1, 2009.  With this commencement date approaching, it is important for employees to understand whether or not they may be eligible for Paid Family Leave benefits, the value of the benefits, and what they need to do to obtain them.  It is also important for employers to understand their rights and obligations under this relatively new law to ensure compliance with the same.

What is New Jersey Paid Family Leave?
New Jersey Paid Family Leave is funded 100% by employees through payroll deductions and benefits are administered through the State’s existing Temporary Disability Benefits Program.  It is not really a “leave” program, rather it is a wage replacement law – similar to temporary disability benefits laws.  In fact, although commonly referred to as the Paid Family Leave law, it is officially called the Family Temporary Disability Leave law.

It is a true “family leave” program, however, in that paid leave benefits are only available to employees to help care for a qualifying family member – benefits are not available if out of work due to one’s own illness or to otherwise care for one’s self.

Paid Family Leave runs concurrently with unpaid Family and Medical Leave Act “FMLA” and/or New Jersey Family Leave Act (“NJFLA”) leaves and does not reduce or impact leave rights under either FMLA or NJFLA.  In addition, Paid Family Leave benefits are also available to employees of smaller employers – who may not be entitled to FMLA or NJFLA leaves.  Paid Family Leave, however, is not a protected leave and does not provide any independent right to reinstatement or other job protection.

How much does it pay and for how long do benefits last?
Employees are entitled to 2/3 of their average weekly wage, up to a $524 per week maximum.  Eligible employees may take up to 6 weeks of Paid Family Leave.
 

Are you eligible?
All employees who have worked 20 calendar weeks in covered New Jersey employment or who have earned at least $7,150.00 (1000 times NJ minimum wage [currently $7.15/hr]) during the 12 months preceding any leave are eligible to receive Paid Leave benefits.

For what reasons can you take Paid Family Leave?
Employees can take paid leave to care for a newborn, within 12 months of birth; to care for a newly adopted child, within 12 months of placement; or to care for a family member with a serious health condition.  The definitions of qualifying “family members” and “serious health conditions” are similar to those employed by the FMLA and NJFLA.  Leave can be taken concurrently or intermittently. 

What do you have to do to obtain benefits?
Application for benefits will be made to the State.  If taking Paid Family Leave to care for a sick family member, you will be required to obtain and submit medical certifications and, in some instances, the State may require that family member to obtain a neutral medical certification.  There will generally be a 1-week waiting period before you can receive Paid Family Leave benefits.  If benefits continue for 3 weeks, benefits are payable retroactive to the first day of the leave.

 

Obligations of both Employers and Employees
Employers must comply with various notice and posting requirements and should also consider adopting and implementing policies that govern whether or not employees will be required and/or permitted to use sick, vacation or other fully paid time off accrued under company policy before using Paid Family Leave.  Employers must submit specific information to the State, including wage information and information about company paid leave benefits within 9 days of the start of the leave. 

Employees need to be aware of various notice requirements that must be given to employers of the intent to take Paid Family Leave and deadlines by which to apply for benefits with the State, typically within 30 days after the leave begins.

Both employees and employers alike should check for specific eligibility requirements and obligations with the New Jersey Department of Labor or their legal counsel to ensure both compliance with the new law and enforcement of their rights pursuant to the New Jersey Paid Leave law.

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