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As a follow-up to our blog post from April 24, 2017, the New York Court of Appeals has issued its decision in Griffin v. Sirva, addressing the questions certified by the U.S. Court of Appeals for the Second Circuit regarding the scope of liability for employment discrimination based on an individual’s criminal history under the New York State Human Rights Law (“NYSHRL”). In its May 4, 2017 opinion, the Court of Appeals held that only a worker’s employer may be liable for direct discrimination under NYSHRL § 296(15), while other entities who do not qualify as employers may be liable for aiding and abetting an employer’s discriminatory acts under NYSHRL § 296(6).

In Griffin v. Sirva, defendant Allied Van Lines (“Allied”) and its corporate parent Sirva, Inc., had contracted with Astro Moving and Storage Co. (“Astro”) to have Astro’s employees provide packing and moving services on an independent contractor basis at the homes of Allied’s customers. Plaintiffs argued that defendants should be held liable for violating the NYSHRL even though they were not plaintiffs’ direct employer, because Allied had required plaintiffs to pass a background check before being assigned to its jobs. When plaintiffs’ background checks revealed prior convictions for sexual offenses against young children, Astro terminated their employment because those convictions disqualified plaintiffs from performing work for Allied, which constituted 70 to 80 percent of Astro’s business.

The Second Circuit had certified three questions regarding the scope of liability for discrimination based on a worker’s criminal history under the NYSHRL: (1) does NYSHRL § 296(15), prohibiting discrimination based on criminal convictions, limit liability to an aggrieved party’s “employer”; (2) if so, does the term “employer” include entities that are not an aggrieved party’s “direct employer,” but who exercise a significant level of control over the direct employer’s discrimination policies and practices; and (3) does NYSHRL § 296(6), providing for “aiding and abetting” liability, apply to an out-of-state entity that requires its New York State agent to discriminate based on a worker’s criminal history. In addressing these questions, the Court of Appeals reformulated the second and third queries as discussed below, to make them more broadly applicable beyond the parameters of this particular case. Five judges supported the majority opinion, while one judge dissented.

Question 1: Only an Employer May Be Liable for Direct Discrimination

The NYSHRL states that it “shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association” to deny employment based on an individual’s prior criminal conviction “when such denial is in violation of the provisions of article twenty-three-A of the correction law.” While this statutory language would appear to extend liability to “any” person or entity, not just an individual’s employer, the court found it significant that “liability under section 296(15) arises only upon a violation of [New York Correction Law Article 23-A (“Article 23-A”)].” Article 23-A prohibits a “public or private employer” from denying employment based on a criminal conviction unless, after analyzing eight specified factors, the employer can demonstrate that there is either a direct relationship between the criminal offense and the position sought or that granting employment would pose an unreasonable risk to the property or safety of others. Given this language, the court held that, “[b]ecause it incorporates Article 23-A by reference, section 296(15) of the Human Rights Law likewise limits liability to a public or private employer.”

Question 2: Common Law Principles, Especially Control, Determine Employer Status

The Court of Appeals questioned the assumption inherent in the Second Circuit’s second certified question, that “a significant level of control” over an employer’s “discrimination policies and practices” might be sufficient to confer employment status on a third party. Because “other factors are relevant to that determination,” the court reformulated the second question to read: “[i]f [liability under] Section 296(15) is limited [to an employer], how should courts determine whether an entity is the aggrieved party’s ‘employer’ for the purposes of a claim under Section 296(15)?”

Noting that neither the NYSHRL nor Article 23-A contains a substantive definition of “employer,” the court referred to both federal and New York case law holding that, in the absence of statutory guidance, common law principles should be used to determine employer status. Under applicable New York precedent, employer status is based on four relevant factors: (1) the selection and engagement of the worker; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control over the worker’s conduct. The Court of Appeals accordingly held that these four factors should be used to “determine who may be liable as an employer” under the NYSHRL, “with greatest emphasis placed on the alleged employer’s power ‘to order and control’ the employee in his or her performance of work.”

Question 3: Out-of-state Non-Employers May Be Liable for Aiding and Abetting Discrimination

The Court of Appeals indicated that the third certified question, regarding whether “an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15),” was too focused on “whether there was discrimination in this particular case.” Because the court interpreted the Second Circuit’s question as seeking “clarification as to who may be liable” under the NYSHRL’s “aiding and abetting” provision, it reformulated the third question to ask “whether section 296(6) extends liability to an out-of-state nonemployer who aids or abets employment discrimination against individuals with a prior criminal conviction.”

In granting summary judgment for defendants, the district court had held that a third party who was not the plaintiff’s direct employer could only be liable for “aiding and abetting” discrimination if the third party and the direct employer were “joint employers.” The Court of Appeals rejected that decision, holding that the “aiding and abetting” provision “applies to any ‘person,’” and “nothing in the statutory language or legislative history limits the reach of this provision to employers” or joint employers. Instead, the broad language of the NYSHRL’s “aiding and abetting” provision applies to any person or entity, including out-of-state defendants who are not employers of an aggrieved party, as long as “the alleged discriminatory conduct had an impact in New York.”

Impact of Court of Appeals Decision

The Court of Appeals did not address how its answers to the Second Circuit’s certified questions should apply to the underlying facts of Griffin v. Sirva. In her dissent, however, Judge Jenny Rivera indicated that, under the majority’s decision, “it is unlikely that either [Allied or Sirva] could be found to be an employer,” because “[n]either contributed to the selection and engagement of Astro employees, paid salary or wages, possessed the power of dismissal, or controlled Astro’s employees’ conduct.” Judge Rivera appeared to take the position that requiring a criminal background check, standing alone, should not be sufficient to establish “employer” status under the NYSHRL.

As we previously discussed, however, that does not end the inquiry. Under the Court of Appeals’ decision, an entity that is not a “direct employer” may face liability under the NYSHRL in one of two ways. First, depending on the facts of a particular case, a third party engaging another company’s workers on an independent contractor basis may be liable as an “employer” under New York’s four-part common law test, especially if any indicia of the third party’s control over the contract workers are present. Second, even in the absence of an employment relationship, a third party that requires an independent contractor’s employees to pass a criminal background check may be found liable under the NYSHRL’s “aiding and abetting” provision. Because the Court of Appeals held that this provision should be “construed broadly,” and applied to both non-employers and out-of-state defendants, the court’s interpretation of the “aiding and abetting” provision may sweep more third parties within the NYSHRL’s ambit going forward.

The Court of Appeals raised, but left unanswered, the question of whether a third party may be found liable for “aiding and abetting” discrimination in the absence of any finding of direct discrimination by a worker’s employer. The court previously held that “a newspaper company that had no employment relationship with the plaintiff” was liable for “aiding and abetting” discrimination by publishing its employment ads in separate categories by gender. The Griffin court found it “[n]otabl[e]” that this previous opinion imposed “aiding and abetting” liability without “consider[ing] the issue of whether, separate from the newspaper company, any employer or prospective employer was liable for primary discrimination under the Human Rights Law.” This discussion may have significance for the Griffin appeal, because Allied and Sirva now face potential “aiding and abetting” liability, even though a jury previously found that plaintiffs’ direct employer did not discriminate against them in violation of the NYSHRL. Whether a court will impose liability against a third party for “aiding and abetting” discrimination, after a fact-finder has expressly determined that the primary employer did not discriminate against plaintiffs, however, remains to be seen.

In summary, the Court of Appeals’ decision provides some good news for companies that engage independent contractors, by holding that only “employers” are subject to direct liability for employment discrimination under the NYSHRL. The court’s decision also poses some challenges, however, as it may extend liability to a third party either by finding employer status under New York’s four-part common law test, or by determining that imposition of a background check requirement constitutes “aiding and abetting” discrimination. Accordingly, companies who conduct background checks on their independent contractors should remain cognizant of both the four factors that determine employer status under New York common law, and the various statutes, including the NYSHRL, the New York City Human Rights Law, and the New Jersey Law Against Discrimination, that may impose liability for “aiding and abetting” acts of employment discrimination under such circumstances.

On April 27, 2017, the Ninth Circuit[1] issued an opinion in Aileen Rizo v. Jim Yovino that provides employers with guidance on how to lawfully implement facially-neutral business policies using prior salary information to set a new employee’s salary, without running afoul of the federal Equal Pay Act (“EPA”). While there has been some backlash regarding this recent decision, the Court’s ruling was consistent with its prior holding in Kouba v. Allstate Insurance Co.[2] when it vacated the lower court’s decision that denied Defendant Jim Yovino’s (“County”[3]) motion for summary judgment, and directed that the lower court consider the County’s hiring procedures in light of certain factors set forth in the Kouba case (as detailed below).

In 2009, Plaintiff Aileen Rizo (“Plaintiff”) began working for the Fresno County School District. Her starting salary was determined using the school district’s standard salary schedule, “Standard Operating Procedure 1440[4],” which was routinely and uniformly applied to all management-level employees, including Plaintiff. Based on the County’s application of this facially neutral policy, which is based on an employee’s prior salary, Plaintiff’s pay was lower than those of her colleagues with higher past salaries, including her male coworkers.

The pay disparity between Plaintiff and her male coworkers was undisputed by the County in this case. But, the County argued that its use of prior salary falls squarely under one of the affirmative defenses to the EPA – i.e., that prior salary amounts to an “other factor other than sex.”[5]

Plaintiff responded by arguing that if an employer’s pay structure is based “exclusively on prior wages,” then any resulting pay differential between men and women cannot be interpreted to be based on “any other factor other than sex.” Her position was consistent with Tenth and Eleventh Circuit decisions and the EEOC’s stance on this topic. Plaintiff further claimed that the use of prior salary alone can’t be considered a “factor other than sex” because it perpetuates existing pay disparities and further undermines the purpose of the Equal Pay Act. The lower court agreed with Plaintiff and found that women’s earlier salaries are likely to be lower than men’s because of historical gender bias; but, the District Court also acknowledged that its decision potentially conflicted with the 1982 decision in Kouba.

On appeal, the Ninth Circuit vacated the District Courts decision and held that its earlier decision in Kouba was controlling in the present case.  In its opinion, the Ninth Circuit held that the Kouba decision “allow[s] an employer to base a pay differential on prior salary so long as it showed that its use of prior salary effectuated some business policy and that the employer used the factor reasonably in light of its stated purpose and its other practices.”  Here, the County offered four business reasons for it policy: (1) the policy is objective, in the sense that no subjective opinions as to the new employee’s value enters into the starting-salary calculus; (2) the policy encourages candidates to leave their current jobs for jobs at the County, because they will always receive a 5% pay increase over their current salary; (3) the policy prevents favoritism and ensures consistency in application; and (4) the policy is a judicious use of taxpayer dollars.

The matter was remanded to the District Court for (1) an evaluation of the four business justifications offered by the County regarding its gender-neutral preset pay scale, and (2) a determination of whether the County’s use of employees’ prior salary is “reasonable in light of [its] stated purpose” under the standard set forth in Kouba.

Many states, including California, recently revised their state law equal pay protections to address the use of prior pay in hiring decisions, and whether it perpetuates prior pay discrimination. In particular, California’s equal pay law now includes a provision that expressly prohibits the use of prior salary “by itself [to] justify any disparity in compensation.” Interestingly, California’s amendment, which was passed prior to the Ninth Circuit’s decision, was not addressed at all in the decision. But, arguably here, all allegedly discriminatory decisions were made prior to the amendment’s passage.

In light of these new state and local laws’ prohibitions and/or restrictions on the use of prior pay as a determinant in setting an applicant’s salary, even if the Ninth Circuit finds that the federal Equal Pay Act permits the use of pay history for this purpose (under certain circumstances), in many jurisdictions, state and local laws will prohibit it. Employers should be aware both of the split in the circuits on this issue, and also of any applicable amendments to state and local equal pay laws that may impact their ability to rely on prior pay in setting an applicant’s rate of pay.

[1] The panel included Circuit Judges A. Wallace Tashima and Andrew D. Hurwitz and the Honorable Lynn S. Adelman, U.S. District Judge for the Eastern District of Wisconsin, sitting by designation.

[2]Kouba v. Allstate Insurance Co. ( 9th Cir. 1982) 691 F.2d 873.

[3] As Defendant Jim Yovino was sued in his official capacity as the Fresno County Superintendent of Schools, the Ninth Circuit utilized the word “County” when referring to the Defendant. For simplicity, we utilize the same term.

[4] To determine a candidate’s salary using “Standard Operating Procedure 1440,” the County applies a 5% increase to an individual’s most recent prior salary, then places the candidate on a “step” of the County’s salary schedule based on that calculated amount. This schedule consists of twelve “levels,” each of which contains ten “steps.”

[5] Under the EPA, a wage disparity is permissible if an employer can plead and prove an affirmative defense based on one of the following exceptions: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision.  On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.

The plaintiff, an emergency medical technician employed by the defendant, was terminated within hours of complaining to her supervisors that a male co-worker had sent her a text message containing a graphic, sexual photograph.  Plaintiff alleged that when her male co-worker learned that she had complained, he manipulated his iPhone to make it appear that a conversation containing consensual sexual text banter that he had with another person was a conversation between him and plaintiff and, when questioned by the employer about plaintiff’s allegations, provided printed screen shots of portions of this alleged conversation, telling the employer that he and the plaintiff had been involved in a consensual relationship.  In her lawsuit, plaintiff complained that her employer accepted the co-worker’s tale as true, and rejected her offer to turn over her cell phone for inspection or otherwise refute his claim.  Instead, plaintiff asserted that she was told by her employer that it “kn[e]w the truth,” that she had a sexual relationship with the co-worker, and that her employment was being terminated because she had sexually harassed him.   Plaintiff filed suit, asserting that the employer’s decision to terminate her employment was an act of retaliation in violation of Title VII because she had voiced complaints of sexual harassment.  Relying on the “cat’s paw” doctrine, the plaintiff argued that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker.  The district court dismissed her complaint, concluding that an employer could not be held liable under the “cat’s paw” doctrine for the discriminatory or retaliatory intent of a non-supervisory co-worker.

On appeal, the Second Circuit disagreed and reinstated plaintiff’s Complaint.  Despite the fact that the male co-worker was a low-level employee without any supervisor authority, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the male co-worker as its agent and hold it accountable for his illegitimate intent.  Referencing the allegations that the employer “blindly credited” the male co-worker’s assertions and “obstinately refus[ed] to inspect [plaintiff]’s phone or to review any other evidence proffered by [plaintiff] in refutation,”   the Second Circuit concluded that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”

The impact of this decision on retail employers who are often called upon to make employment decisions based on information provided by one employee about another?  Negligence is the key.  Only when the employer effectively adopts the co-worker’s animus by acting negligently with regards to the information provided may the co-worker’s improper motivation be imputed to the employer to support a claim under the cat’s paw doctrine.  Exercise good faith and be thorough in conducting internal investigations.  Do not ignore warning signs.  Consider all evidence offered in making employment decisions.

The top story on Employment Law This Week is the EEOC’s filing of its first sexual orientation bias suits.

Last year, the Equal Employment Opportunity Commission interpreted Title VII of the Civil Rights Act to prohibit discrimination against an individual for sexual orientation. The EEOC concluded that sexual orientation discrimination is a form of unlawful gender discrimination. This month, the agency filed two landmark federal lawsuits seeking to enforce its interpretation of the statute for the first time. The agency is suing on behalf of workers at a company in Baltimore and one in Pittsburgh for harassment based on sexual orientation. Our colleague Jeffrey Landes, from Epstein Becker Green, has more.

View the episode below or read more about these landmark lawsuits in an earlier post on this blog.

Laura C. Monaco
Laura C. Monaco

This week, the EEOC filed its first two federal lawsuits that frame allegations of sexual orientation-based harassment and discrimination as claims of unlawful “sex discrimination” under Title VII of the Civil Rights Act of 1964.

In EEOC v. Pallet Companies the EEOC alleges that an employee’s night-shift manager harassed her because of her sexual orientation by making repeated offensive comments (sometimes accompanied by sexually suggestive gestures), such as “I want to turn you back into a woman” and “I want you to like men again.”  According to the Complaint, the employee was discharged after she complained about her manager’s comments to another supervisor and the Human Resources department.  The EEOC makes similar allegations in EEOC v. Scott Medical Health Center.  There, a supervisor allegedly harassed an employee by making repeated anti-gay comments and vulgar statements about the employee’s sexual orientation.  The employee claims that he was constructively discharged after the company refused to take any corrective action in response to his complaints.

In both lawsuits, the EEOC articulates three legal theories in support of its claim that the alleged sexual orientation harassment constitutes unlawful sex discrimination under Title VII.  First, sexual orientation discrimination “necessarily entails” treating an employee less favorably due to his or her sex and, therefore, the employee’s gender unlawfully motivated the alleged harassment.  Second, the alleged harassment stemmed from the employee’s failure to conform to the harasser’s “sex stereotypes and norms.”  Third, the harasser displayed both general objections to the idea of individuals having romantic associations with others of the same sex, as well as a specific objection to the employee’s close, loving association with a same-sex partner.

Although these are the first lawsuits the EEOC has filed on the grounds of sexual orientation discrimination as “sex discrimination” under Title VII, the agency has actually raised these same three legal theories before.  In July 2015, the EEOC issued Baldwin v. Department of Transportation, an agency determination concluding that allegations of sexual orientation discrimination necessarily state a claim of unlawful sex discrimination because (1) the alleged discrimination would not have occurred but for the employee’s sex, (2) the challenged treatment was based on the sex of the people the employee associates with, and/or (3) the alleged conduct was premised on the fundamental “sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”

The EEOC’s new lawsuits attacking sexual orientation discrimination represent just one facet of the agency’s recent efforts to address emerging and developing issues – one of the six national priorities identified in its Strategic Enforcement Plan for fiscal years 2013 to 2016.  In addition to focusing on sexual orientation discrimination, the EEOC also recently filed federal lawsuits alleging unlawful sex discrimination against transgender individuals.  As the EEOC intensifies this focus, employers should review their antidiscrimination policies to determine whether LGBT employees have the same protections as employees in other protected categories, and should consider expanding their training programs to ensure they encompass issues relating to sexual orientation, gender identity, and transgender discrimination.  Employers should also remain mindful of state and local legislation that has increasingly expanded to prohibit sexual orientation or gender identity discrimination in employment.

Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith.  The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.

Following is an excerpt:

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.

If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.

Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.

In a decision that will affect New Jersey employers seeking to arbitrate employees’ claims, the Appellate Division, earlier this month, in Morgan v. Amy E. HatcherRamours Furniture Company, Inc., held that arbitration clauses contained in employee handbooks are unenforceable where the handbook also includes a disclaimer that it does not create a contract.[1]  Accordingly, New Jersey employers whose handbooks currently include arbitration clauses should consider carefully, replacing them with either arbitration clauses in an employment application, and/or with a stand-alone agreement.

Given the potential for additional disputes, however, part of that process should include determining whether and how to implement such agreements with existing employees. The opinion, which is rife with truisms, highlights the inclination of New Jersey courts to take notions of fairness and equity into their decision making.

Case Facts

The decision arose from the trial court’s denial of Raymours Furniture Company’s (“Raymours”) motion to compel arbitration of plaintiff’s claim alleging age discrimination and retaliation in violation of the New Jersey Law Against Discrimination (“LAD”). Raymours sought arbitration based on a provision in the company’s employee handbook. Although the defendants appealed the denial of their motion to compel arbitration on numerous grounds, the Court focused primarily on the following few facts.

Employee Makes an Internal Complaint, Then is Fired for Refusing to Sign an Arbitration Agreement

Plaintiff contended that upon complaining of age discrimination on the job, defendants gave him an ultimatum –he could either sign a stand-alone arbitration agreement, or be discharged.  When plaintiff refused to sign the agreement, Raymours followed through and terminated his employment.  Plaintiff responded by filing suit.

Raymours Moves to Compel Arbitration Under the Handbook – Despite the Handbook’s Disclaimers

The Company moved to compel arbitration of the plaintiff’s claims based on an arbitration clause and waiver of the right to sue, included in the company handbook.  The handbook, however, was prefaced with the following contract disclaimer:

Nothing in this Handbook or any other Company practice or communication or document, including benefit plan descriptions, creates a promise of continued employment, employment contract, term or obligation of any kind on the part of the Company.

Likewise, the company’s annual electronic acknowledgement of receipt of the handbook included similar contract disclaimer language that the employee,

Understand[s] that the rules, regulations, procedures and benefits contained therein are not promissory or contractual in nature and are subject to change by the company.

Court’s Analysis in Affirming the Denial of the Company’s Motion to Compel Arbitration

In rendering its decision, the Court invoked principles of equity – finding that it would be inequitable to allow an employer to take contrary positions vis-à-vis the contractual nature of the handbook according to whichever position better suited the employer at the time (i.e., claiming that the handbook is not a contract when sued by an employee for breach of contract, but then insisting that the handbook language is contractual when seeking to enforce the handbook’s arbitration provision).

The Court also relied on contractual principles in arriving at its decision, and explained that its decision was wholly consistent with the Federal Arbitration Act – citing to a recent Fourth Circuit decision refusing to enforce a handbook-based arbitration clause, based on nearly identical circumstances.[2]

Take-Away

To be enforceable, the agreement to arbitrate must be in an unambiguous contract.  The Morgan opinion suggests in dicta that “had the plaintiff executed the stand-alone arbitration agreement presented to him when a rift formed in the parties’ relationship, a different outcome would likely have followed.”   When it comes to handbooks and arbitration clauses, the Appellate Division made it clear that employers cannot have their cake and eat it too.

[1] Morgan v. Ramours Furniture Company, Inc., A-2830-14T2, 2016 N.J. Super. LEXIS 1 (App. Div. Jan. 7, 2016).

[2] Lorenzo v. Prime Commc’ns, L.P., 806 F.3d 777 (4th Cir. 2015).

Employment Law This Week – Epstein Becker Green’s new video program – has a story about an effort to unite retailers against a restrictive scheduling law in Washington, D.C.

The National Retail Federation issued a letter urging the city council in D.C. to abandon new scheduling legislation for retailers and restaurants. The proposed law would require businesses to post schedules three weeks in advance, with heavy penalties if they make any changes to the posted schedule. The NRF argues that this legislation removes the benefit of flexibility for employees, and that it places businesses at a competitive disadvantage against similar companies in surrounding states.

See below to view the story.

Employment Law This Week – a new video program from Epstein Becker Green – has a story this week about on-call shifts and the challenges they’re facing in court.

Both BCBG and Forever 21 have been hit with class-action wage theft suits over on-call scheduling. Many retailers are ending this practice, including Urban Outfitters, which was cited for possible violations of New York’s requirement to pay hourly staff for at least four hours when they report for work.


Click above or watch on YouTube or Vimeo – or download: MP4 or WMV.

 

Regarding the Supreme Court’s Integrity Staffing Solutions v. Busk opinion, issued today, our colleague Michael Kun at Epstein Becker Green has posted “Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time” on one of our sister blogs, Wage & Hour Defense.

Following is an excerpt:

In order to prevent employee theft, some employers require their employees to undergo security screenings before leaving the employers’ facilities. That is particularly so with employers involved in manufacturing and retail sales, who must be concerned with valuable merchandise being removed in bags, purses or jacket pockets.

Often in the context of high-stakes class actions and collective actions, parties have litigated whether time spent undergoing a security screening must be compensated under the Fair Labor Standards Act (“FLSA”). On December 9, 2014, a unanimous United States Supreme Court answered that question – no.

The Court’s decision in Integrity Staffing Solutions v. Busk may have a far-reaching practical and legal impact. Not only may it make more employers comfortable conducting security screenings of their employees, but it may bring an end to most class actions and collective actions filed against employers seeking compensation for employees’ time spent in such screenings.