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In Kasten v. Saint-Gobain Performance Plastics Corp., 09-834 (3/22/2011),the U.S. Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) protect employees who make oral complaints to an employer, when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. This decision settles a disagreement that had existed among the Circuit Courts of Appeals as to whether oral complaints were sufficient, or whether the FLSA required an employee to file a written complaint before he/she could be protected from retaliation.
By way of background, the FLSA generally provides that employers that fall within its scope must pay non-exempt employees overtime pay at a rate of one-and-one-half the employee's regular rate of pay, for all hours that an employee works in excess of 40 in any week. Section 215(a)(3) of the Fair Labor Standards Act makes it illegal for an employer: "to discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. 215(a)(3). As mentioned above, the Courts of Appeals have been in disagreement as whether the phrase "filed any complaint," requires a formal written complaint, or encompasses informal oral complaints as well.
In this case, the employee, Kasten, had made various oral complaints to his employer about the physical location of time-clocks in his place of employment, which were located between the area where Kasten and his other co-workers would put on and take off their work-related protective gear, and the area where they performed their job duties. Kasten believed that this placement prevented the workers from receiving credit for time that they spent "donning and doffing" their required protective gear, which is a violation of the FLSA. Kasten claimed to have made repeated oral complaints about the time-clock location to his employer in accordance with the employer's internal grievance procedure, and orally complained to his shift supervisor that "it was illegal for the time clocks to be where they were," because of the employer's exclusion of "the time you come in and start doing stuff." Kasten also complained to a member of the HR department that if the location of the time clocks "were to get challenged," in court, the employer "would lose." He also told his lead operator that the location was illegal and that he "was thinking about starting a lawsuit about the placement of the time clocks."
Kasten alleged that these complaints led his employer to discipline, and ultimately, terminate him.
The lower courts had dismissed Kasten's claims of retaliation, holding that the FLSA did not protect "oral" complaints, but required an employee to file written complaints to an employer before he/she could take advantage of the FLSA's anti-retaliation provision.
The U.S. Supreme Court disagreed, and held that the FLSA's anti-retaliation provision protects both oral and written complaints. Finding that the text of the FLSA itself did not provide a conclusive answer to this issue, the Court's majority looked to the purpose and history of the FLSA, and concluded that limiting complaints by employees to only formal written complaints, would undermine the legislative purpose and intent of the Act, which was originally meant to protect illiterate and uneducated manufacturing laborers. The majority also noted that restricting complaints to only those in writing would prevent the Government agencies from using hotlines, interviews and other methods of receiving complaints from employees.
However, the Court did not go so far as to offer protection to all oral complaints, recognizing that the FLSA does require fair notice of alleged violations to be given to employers. Therefore, the majority held that while "fair notice" does not necessarily have to be in writing, an oral complaint will only be deemed to be "filed" under the anti-retaliation provision of the FLSA when "a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting," his or her rights under the FLSA. Under the facts of this case, the majority determined that Kasten's oral complaints to his employer and supervisors met this objective test, and thus allowed Kasten's suit to proceed.
You can read both the majority and dissenting opinions in Kasten v. Saint-Gobain Performance Plastics Corp., here: http://www.supremecourt.gov/opinions/10pdf/09-834.pdf
1 Ekim 2012 Pazartesi
U.S. Supreme Court: States May Revoke Business Licenses of Employers Who Knowingly Hire Illegal Aliens
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In the recent decision of Chamber of Commerce v. Whiting (5/26/2011) the U.S. Supreme Court upheld an Arizona law that: (1) allows the state to revoke the business licenses of private employers who knowingly or intentionally employ unauthorized aliens; and (2) requires all private employers to use the federal "E-Verify" system to confirm the immigration status of their employees. Following this decision, any other state in the nation may, if it chooses, adopt an employer-licensing law that provides for the same requirements and penalties as the Arizona statute.
The "Legal Arizona Workers Act of 2007" allows Arizona courts to suspend or revoke any necessary business licenses of private employers within Arizona if an employer knowingly or intentionally employs an unauthorized alien. The Act also requires that every private employer, after hiring a new employee, "shall verify the employment eligibility of the employee," using "E-Verify," which is federal internet database maintained by the federal government that allows an employer to receive basic information relating to an employee's work-authorization status. Use of the E-Verify system under federal level is strictly voluntary, as the Secretary of Homeland Security is expressly prohibited from requiring any person or entity outside of the federal government from participating in the E-Verify program.
The U.S. Chamber of Commerce and various other business groups sued various Arizona public officials charged with administering the Legal Arizona Workers Act of 2007, arguing that the law's provisions were both expressly and impliedly preempted by federal immigration law. After examining the statutory text and operations of both the federal immigration law and the Legal Arizona Workers Act, a 5-3 majority of the Court determined that nothing in the federal immigration law prevented Arizona from adopting, implementing and enforcing the Legal Workers Act as it had.
Going forward, the majority's sanction of the provisions of the Legal Arizona Workers Act opens the door for any other state that wishes to adopt the same manner of enforcement scheme, to pass their own statutes that are identical to Arizona's, without concern over whether it is constitutionally permissible to do so. Whether any states will choose to follow suit and create the same type of license-revocation sanction as exists under Arizona law for an employer's knowing and intentional employment of unauthorized aliens, remains to be seen.
You can read the Court's full opinion in Chamber of Commerce v. Whiting here: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf
The "Legal Arizona Workers Act of 2007" allows Arizona courts to suspend or revoke any necessary business licenses of private employers within Arizona if an employer knowingly or intentionally employs an unauthorized alien. The Act also requires that every private employer, after hiring a new employee, "shall verify the employment eligibility of the employee," using "E-Verify," which is federal internet database maintained by the federal government that allows an employer to receive basic information relating to an employee's work-authorization status. Use of the E-Verify system under federal level is strictly voluntary, as the Secretary of Homeland Security is expressly prohibited from requiring any person or entity outside of the federal government from participating in the E-Verify program.
The U.S. Chamber of Commerce and various other business groups sued various Arizona public officials charged with administering the Legal Arizona Workers Act of 2007, arguing that the law's provisions were both expressly and impliedly preempted by federal immigration law. After examining the statutory text and operations of both the federal immigration law and the Legal Arizona Workers Act, a 5-3 majority of the Court determined that nothing in the federal immigration law prevented Arizona from adopting, implementing and enforcing the Legal Workers Act as it had.
Going forward, the majority's sanction of the provisions of the Legal Arizona Workers Act opens the door for any other state that wishes to adopt the same manner of enforcement scheme, to pass their own statutes that are identical to Arizona's, without concern over whether it is constitutionally permissible to do so. Whether any states will choose to follow suit and create the same type of license-revocation sanction as exists under Arizona law for an employer's knowing and intentional employment of unauthorized aliens, remains to be seen.
You can read the Court's full opinion in Chamber of Commerce v. Whiting here: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf
U.S. Supreme Court: Complaints By Public Employees Under Constitution's "Petition Clause" Only Protected If Related To Matters of Public Concern
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In Borough of Duryea v. Guarnieri, the U.S. Supreme Court held that a public employee who makes a complaint to a governmental employer under the "Petition Clause" of the U.S. Constitution is only protected from retaliation where the petition involves a matter of public concern. This decision harmonizes public employee complaints under the First Amendment's "Petition Clause" with prior Supreme Court decisions involving public employee complaints under the First Amendment's "Free Speech" clause.
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
The First Amendment to the U.S. Constitution protects "the right of the people. . . to petition the Government for a redress of grievances," (called the "Petition Clause") as well as the people's right to "freedom of speech (called the "Speech Clause)." This case concerned the extent to which public employees are protected by the Petition Clause when they make routine complaints to governmental employers.
Guarnieri was a police chief for a local borough in Pennsylvania, who filed a union grievance against the borough, challenging his termination. Following a subsequent arbitration, Guarnieri was ordered to be reinstated by the borough. After his reinstatement, borough council issued 11 written directives to Guarnieri concerning the performance of his duties. Guarnieri then filed a lawsuit against the borough, arguing that his original union grievance was a "petition" that was protected by the First Amendment's Petition Clause, and that the 11 directives that were subsequently issued by borough council were issued illegally in retaliation for Guarnieri's protected activity in filing a petition.
Diverging from the decisions of other Circuits, the Third Circuit Court of Appeals agreed, and held that Guarnieri's petition (in the form of his union grievance), was protected under the Petition Clause, even if the content of that petition did not address a matter of public concern.
The U.S. Supreme Court disagreed, and reversed the decision of the Third Circuit. In a 7-2 decision, with Justice Thomas filing a concurring opinion and Justice Scalia filing an opinion concurring in part and dissenting in part, the Court held that in order to find protection for complaints to governmental employers filed under the Petition Clause, public employees must be petitioning about a matter of public concern. The majority opinion noted that public employees who complain to their governmental employers enjoy protection from retaliation under the First Amendment's Speech Clause only where their complaints involve "matters of public concern," as opposed to matters of "purely private concern." Given this premise, the majority found no distinguishing reason to treat a public employee's "petition" to a government employer under one section of the First Amendment differently from a public employee's "speech" under a different section of the First Amendment.
Therefore, the Court's majority laid down the following rule: "If a public employee petitions as an employee on a matter of purely private concern, the employee's First Amendment interest must give way, as it does in speech cases. When a public employee petitions as a citizen on a matter of public concern, the employee's First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. If that balance favors the public employee, the employee's First Amendment claim will be sustained. If the interference with the government's operations is such that the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern."
You can read the Supreme Court's full decision in Borough of Duryea v. Guarnieri here: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf
In Title VII Cases, Sometimes It's All About the Numbers. . .
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On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern."On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf
Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know
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In the legal world, common sense and the law do not always go hand-in-hand. Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa). But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing.
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
This is one of those moments. In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them. The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly).
One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat) observed on the floor. Doe and her partner soon found themselves crawling with fleas. They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.
After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors. Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up. Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.
Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility. After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way. Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes.
Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident. When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices. A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed. Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.
Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock. With Doe standing with her back to the door, Joyce began to inspect Doe for fleas. Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts.
As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe. Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo. Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room. Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up." Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."
Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe. After which, Doe left the hospital in scrubs.
Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers. At least one officer testified that Foy had displayed a still image of Doe's bare buttocks. Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network. Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper.
Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment. Doe also claimed that the County was liable for an alleged failure to train their officers.
On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim. While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area." The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed. As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper.
The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them.
Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue.
So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.
You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf
30 Eylül 2012 Pazar
Why is this so difficult for employers?
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A recent report from the Treasury Inspector General For Tax Administration (TIGTA), said they found weaknesses in the IRS's procedures for ensuring taxpayer compliance with worker status determinations.
"The misclassification of employees as independent contractors is a nationwide problem affecting millions of employees," J. Russell George, Treasury Inspector General for Tax Administration stated. "Left unchecked, it will continue to grow and contribute to the tax gap. The IRS should do more to ensure that the burden of uncollected taxes is not shifted to compliant taxpayers."
The IRS allows both employers and workers to request determination letters from the agency regarding the worker's tax status as an employee or independent contractor. While this determination is binding, TIGTA reported that employers often fail to withhold taxes even though the IRS has stated that the worker is properly classified as an employee. The IRS created Form 8919 so that employees in these circumstances could report their personal liability for Social Security and Medicare wages. Nevertheless, TIGTA found that employees may be abusing Form 8919 in order to avoid payment of employment taxes and estimated that 74,068 taxpayers avoided $26.2 million in Social Security and Medicare taxes, and the IRS could lose $131 million in Social Security and Medicare taxes over the course of the next five years as a result.
The IRS disagreed with TIGTA's valuation of this amount, pointing out situations where a taxpayer could receive relief when the taxpayer could be ruled an independent contractor by a court and would not have an employment tax liability.
What really intrigues me is why it is so difficult for employers to determine whether someone is an independent contractors or an employee? There are several EDD resources out there and the best one s I’ve found over the years is a simple yes and no questionnaire. Answer too many questions with a “yes” and you know you’ve got an employee on your hands no matter how much you’d wish the person could be classified as an independent contractor.
The form is on the CEA website in the resources tab, or go to: http://www.edd.ca.gov/pdf_pub_ctr/de38.pdf
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website:http://www.employers.org/
Twitter:Caemployers
"The misclassification of employees as independent contractors is a nationwide problem affecting millions of employees," J. Russell George, Treasury Inspector General for Tax Administration stated. "Left unchecked, it will continue to grow and contribute to the tax gap. The IRS should do more to ensure that the burden of uncollected taxes is not shifted to compliant taxpayers."
The IRS allows both employers and workers to request determination letters from the agency regarding the worker's tax status as an employee or independent contractor. While this determination is binding, TIGTA reported that employers often fail to withhold taxes even though the IRS has stated that the worker is properly classified as an employee. The IRS created Form 8919 so that employees in these circumstances could report their personal liability for Social Security and Medicare wages. Nevertheless, TIGTA found that employees may be abusing Form 8919 in order to avoid payment of employment taxes and estimated that 74,068 taxpayers avoided $26.2 million in Social Security and Medicare taxes, and the IRS could lose $131 million in Social Security and Medicare taxes over the course of the next five years as a result.
The IRS disagreed with TIGTA's valuation of this amount, pointing out situations where a taxpayer could receive relief when the taxpayer could be ruled an independent contractor by a court and would not have an employment tax liability.
What really intrigues me is why it is so difficult for employers to determine whether someone is an independent contractors or an employee? There are several EDD resources out there and the best one s I’ve found over the years is a simple yes and no questionnaire. Answer too many questions with a “yes” and you know you’ve got an employee on your hands no matter how much you’d wish the person could be classified as an independent contractor.
The form is on the CEA website in the resources tab, or go to: http://www.edd.ca.gov/pdf_pub_ctr/de38.pdf
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website:http://www.employers.org/
Twitter:Caemployers
Worker Compensation Update
To contact us Click HERE
It is important to clarify when employees are eligible for workers’ compensation benefits and explain what you should and shouldn’t do if an employee is injured on the job. This seminar will discuss:
• When is an employee eligible for worker's compensation benefits?
• Dos and Don'ts when an employee gets injured on the job.
• 2011 changes to the workers' compensation system.
• New legislation and court rulings from 2010.
• Why offer modified work, and what to do when it is refused by your employee.
• Communicating with your injured workers – how and why.
Click on location below for details
Costa Mesa, CA
Date: Tuesday, March 15, 2011 at 09:00 AM
Duration: 1 Hour 30 Minutes
Continental breakfast
Orange County Dept. of Education
200 Kalmus Dr. Costa Mesa, CA
San Diego, CA
Date: Tuesday, March 16, 2011 at 09:00 AM
Duration: 1 Hour 30 Minutes
Continental breakfast
DeVry University
2655 Camino Del Rio N., Suite 201 San Diego, CA 92108
Fresno, CA
Date: Tuesday, March 29, 2011 at 12:00 PM
Duration: 1 Hour 30 Minutes
Lunch included
Piccadilly Inn Airport
5115 E. McKinley Fresno, CA 93727
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website:www.employers.org
Twitter:Caemployers
• When is an employee eligible for worker's compensation benefits?
• Dos and Don'ts when an employee gets injured on the job.
• 2011 changes to the workers' compensation system.
• New legislation and court rulings from 2010.
• Why offer modified work, and what to do when it is refused by your employee.
• Communicating with your injured workers – how and why.
Click on location below for details
Costa Mesa, CA
Date: Tuesday, March 15, 2011 at 09:00 AM
Duration: 1 Hour 30 Minutes
Continental breakfast
Orange County Dept. of Education
200 Kalmus Dr. Costa Mesa, CA
San Diego, CA
Date: Tuesday, March 16, 2011 at 09:00 AM
Duration: 1 Hour 30 Minutes
Continental breakfast
DeVry University
2655 Camino Del Rio N., Suite 201 San Diego, CA 92108
Fresno, CA
Date: Tuesday, March 29, 2011 at 12:00 PM
Duration: 1 Hour 30 Minutes
Lunch included
Piccadilly Inn Airport
5115 E. McKinley Fresno, CA 93727
Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.
For more information please contact:
Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312
Mobile 916-281-5898
Email: sdear@employers.org
Website:www.employers.org
Twitter:Caemployers
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