Questions and directions are in attachment
Directions
Submit one MSWord document with clear labeling and distinctions for each response. To obtain full points you must apply the concepts we’ve studied to date and use the tools and skills studied in your response. Always cite any paraphrasing and quotes from your textbook, lecture, or other sources.
· Chapter 19 – Case 19.1 Brief and answer questions; Questions 9 and 10. Brief must be in I.R.A.C. as well as Questions answer.
· Issue:
· Rule:
· Analysis:
· Conclusion:
9. A group of exotic dancers at several clubs in the San Fernando Valley of California brought a class action suit against their employers, the club owners, for the following violations of labor law:
• Failure to provide meal breaks
• Failure to provide rest breaks
• Club managers taking 50% of the dancers’ tips, which resulted in some dancers earning less than the minimum wage for hours worked
• Failure to reimburse dancers for the costs of their uniforms
The club owners acknowledge that the dancers worked over 40 hours each week but that they were professionals and not subject to the provisions of the FLSA. The club owners also claim that the dancers work on a type of commission basis and so are not covered by the minimum wage law. Are labor law violations going on at the clubs? Are you able to respond to the defenses that the club owners raised?
10. Dawnmarie Souza was fired from American Medical Response (AMR) after using vulgarities to ridicule her supervisor in a Facebook posting. Souza also wrote, using the company’s terminology for a psychiatric patient: “Love how the company allows a 17 to become a supervisor.” (17 is the company’s code for a psychiatric patient.) Ms. Souza filed a complaint with the NLRB for AMR’s retaliatory conduct and interference with her right to organize fellow employees. What can employees post about their employers in social media and on the Internet?
· Chapter 20 – Case 20.2 Brief and answer questions; Questions 7 and 8. Brief must be in I.R.A.C. as well as Questions answer.
· Issue:
· Rule:
· Analysis:
· Conclusion:
7. Wendy Komac was hired by Gordon Food Service as a salesperson. During the course of her employment, Gordon held sales contests such as the “Winner’s Circle” competition, which rewarded the salesperson who generated the most new customers. Ms. Komac’s supervisor received an unsigned letter that accused Ms. Komac of falsely representing new sales customers in her report. When confronted, she denied the allegations but was eliminated from the sale competition when she stated that “other employees routinely violated the rules.” Her supervisor gave a speech at the next sales meeting explaining that violations of the rules during sales com- petition would be grounds for termination.
During a subsequent Tyson product competition, allegations again emerged about Ms. Komac’s conduct. When confronted, Ms. Komac admitted that she had reported products normally purchased by one of her long-term customers as being purchased by two other customers.
Following the second contest problem, Ms. Komac was fired. Ms. Komac filed suit alleging discrimi- nation by Gordon. She gave examples of statements made to her over the course of her employment such as her pay being less because male employees “have a wife and three kids at home.” She also alleged that no male employees were terminated for violating contest rules. However, there was no evidence that any male employees had been caught cheating in contests after the supervisor’s speech. Explain whether Ms. Komac has established a prima facie case of gender discrimination. [Komac v. Gordon Food Service, 3 F. Supp. 2d 850 (N.D. Ohio 1998)]
8. Would the following actions constitute sexual harassment?
a. Making sexual comments or innuendoes; telling sexual jokes or stories
b. Asking questions about social or sexual life
c. Telling lies or spreading rumors about a person’s personal sex life
d. Making sexual comments about a person’s body
e. Turning work discussions to sexual topics
f. Looking a person up and down
g. Staring repeatedly at someone
h. Blocking a person’s path or hindering them
i. Giving unwanted gifts of a sexual nature
j. Invading a person’s body space
k. Making sexual gestures or kissing sounds or offering massages
l. Displaying sexual posters, cartoons, or handouts
Case 19.1
Chao v. Hotel Oasis, Inc.
493 F.3d 26 (1st Cir. 2007)
Two Sets of Books, One Big Penalty
Facts
Hotel Oasis, Inc., operates a hotel and restaurant in southwestern Puerto Rico. Dr. Lionel Lugo-Rodríguez (defendant-appellant) (Lugo) is the president of the corporation, runs the hotel, and manages its employees. Oasis’s records show that between October 3, 1990, and June 30, 1993, employees were paid less than minimum wage, were not paid for training time or meetings held during nonworking hours, were paid in cash “off the books,” and were not paid correctly for overtime. Oasis also maintained two sets of payroll records for the same employees, covering the same time periods, one showing fewer hours at a higher rate and the other showing more hours at a subminimum wage rate. Lugo maintains that the two sets of books were necessary, one for temporary employees and one for permanent employees.
On April 5, 1994, the Secretary of Labor (the “Secretary”) filed a complaint in the United States District Court for the District of Puerto Rico against Oasis and Lugo (“Defendants”), alleging violations of the mini- mum wage, overtime, and record-keeping provisions of the Fair Labor Standards Act (“FLSA”). The Secretary also sought liquidated damages.
After years of litigation, the district court ordered Oasis to pay $141,270.64 in back wages and an equal amount in liquidated damages to 282 current and former employees. The court also found Lugo personally liable for the back wages and penalties. Lugo and Oasis appealed.
JUDICIAL OPINION
TORRUELLA, Circuit Judge “[T]he overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Although we found it “difficult to accept . . . that Congress intended that any corporate officer or other employee with ultimate operational control over payroll matters be personally liable,” we narrowly determined that the FLSA did not preclude personal liability for “corporate officers with a significant ownership interest who had operational control of significant aspects of the corporation’s day to day functions, including compensation of employees, and who personally made decisions to continue operations despite financial adversity during the period of non- payment.”. . .
. . . [Because] not every corporate employee who exercised supervisory control should be held personally liable, we identified several factors that were important to the personal liability analysis, including the individual’s ownership interest, degree of control over the corporation’s financial affairs and compensation practices, and role in “caus[ing] the corporation to compensate (or not to compensate) employees in accordance with the FLSA.”
Based on the above considerations, we affirm the district court’s judgment holding Lugo personally liable for Oasis’s compensation decisions. Lugo was not just any employee with some supervisory control over other employees. He was the president of the corporation, and he had ultimate control over the business’s day- to-day operations. In particular, it is undisputed that Lugo was the corporate officer principally in charge of directing employment practices, such as hiring and firing employees, requiring employees to attend meetings unpaid, and setting employees’ wages and schedules. He was thus instrumental in “causing” the corporation to violate the FLSA. The FLSA contemplates, at least in certain circumstances, holding officers with such personal responsibility for statutory compliance jointly and severally liable along with the corporation.
Finally, Defendants argue that the district court erred in awarding liquidated damages based on a finding of willfulness. The FLSA authorizes the Secretary of Labor to recover on behalf of employees unpaid wages and over- time compensation plus an equal amount in liquidated damages. The only way an employer can escape liquidated damages is to “show[] to the satisfaction of the court” that it acted in good faith and had reasonable grounds for believing that its acts did not violate the FLSA.
Here, the district court found that Defendants failed to show good faith or objective reasonableness, referring back to its findings on willfulness with respect to the applicable statute of limitations. Defendants “intentionally and consistently failed to keep accurate records of the time worked by its employees[,] . . . disguised minimum wage, as well as overtime pay violations, . . . did not record the amounts of cash tips . . . [and] most salient. . .[to] a finding of willfulness . . . [paid] employees ‘off the books.’”
Oasis’s failure to keep adequate payroll records and its intentional manipulation of the records it did keep are sufficient grounds for concluding that Oasis did not act in good faith or with a reasonable belief that it was in compliance with the FLSA. “[T]he fact that an employer knowingly under-reported its employee’s work hours could suggest to a [fact finder] that the employer was attempting to conceal its failure to pay overtime from regulators, or was acting to eliminate evidence that might later be used against it in a suit by one of its employees.”
Defendants’ primary argument on appeal is that the court had indicated at trial that the willfulness issue was “close” and that the Secretary had offered no evidence that Oasis acted in reckless disregard of its statutory obligations. These arguments are unpersuasive. First, the district court noted its “initial inclination against a determination of willfulness,” but explained that it ultimately relied on the employees’ testimony and Defendants’ own documentary evidence to reach its conclusion regarding willfulness. We have already determined that the willfulness finding is not clearly erroneous. Furthermore, it is the employer’s burden to show good faith and objective reasonableness, and therefore the Secretary’s alleged failure to offer evidence of willfulness is not an impediment to the court’s decision to refrain from awarding liquidated damages.
Affirmed.
CASE QUESTIONS
1. What shows willfulness of a violation?
2. What are the standards for holding an officer liable for FLSA violations?
3. Explain what liquidated damages are and when they are available for recovery
CASE 20.2
Ricci v. DeStefano
557 U.S. 557 (2009)
Fighting Fire with Stats
FACTS
In 2003, 118 firefighters in the city of New Haven, Connecticut, took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (City) were infrequent, so the stakes were high. Exam results determined which fire- fighters would be considered for promotions during the next two years, and their order for consideration. Many firefighters, including Frank Ricci, studied for months, at considerable personal and financial cost.
The examination results showed that white candidates had outperformed minority candidates. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, six blacks, and three Hispanics. Eight lieutenant positions were vacant at the time of the examination, which meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant.
Forty-one candidates completed the captain examination—25 whites, eight blacks, and eight His- panics. Of those, 22 candidates passed—16 whites, three blacks, and three Hispanics. Seven captain positions were vacant at the time of the examination. Nine candidates were eligible for an immediate promotion to captain—seven whites and two Hispanics.
Following a briefing on the exam results, the mayor and other local politicians opened a public debate on the results that turned rancorous. The firefighters argued that the test results should be discarded because the results were discriminatory. Some firefighters threatened a discrimination lawsuit if the city made the promotions on the basis of the tests. Other fire- fighters said the exams were neutral and fair, and they, in turn, threatened a discrimination lawsuit if the city, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end, the city took the side of those who protested the test results. It threw out the examination results. Mr. Ricci and others filed suit.
The federal district court found that there was dis- crimination against the white and Hispanic firefighters, and the city (respondents) appealed. The appellate court reversed the district court’s decision.2 The firefighters (petitioners) appealed to the U.S. Supreme Court.
JUDICIAL OPINION
KENNEDY, Justice
The City’s actions would violate the disparate-treat-ment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” With- out some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.
Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.
Allowing employers to violate the disparate-treat- ment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount
to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.”
Congress has imposed liability on employers for unintentional discrimination in order to rid the work- place of “practices that are fair in form, but discriminatory in operation.” But it has also prohibited employers from taking adverse employment actions “because of” race. Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.
Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
If an employer cannot rescore a test based on the candidates’ race, then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.
For the foregoing reasons, we adopt the strong- basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.
The City argues that, even under the strong-basis- in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate- impact liability in violation of Title VII.
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case.
Reversed.
CASE QUESTIONS
1. Explain what happened on the exam and why the city decided to toss the exam results.
2. What does the court establish as the law applicable to “tossing” exam results?
3. What is the court trying to balance in interpreting the law?