Committee Newsletter Fall 2013, Vol. 1 No. 1

Transcription

1 Committee Newsletter TABLE OF CONTENTS 101 PRACTICE SERIES ARTICLES Supreme Court Update: University of Texas Southwestern Medical Center v. Nassar By Jeremy M. Brenner ARTICLES Classifying Workers as Interns in Light of Glatt v. Fox Searchlight By Andrew J. Hoag* NEWS AND ANNOUNCEMENTS Join Members of the YLD Labor and Employment Law Committee in New Orleans

2 101 PRACTICE SERIES ARTICLES >> Supreme Court Update: University of Texas Southwestern Medical Center v. Nassar By Jeremy M. Brenner* The United States Supreme Court recently raised the bar for plaintiffs attempting to bring Title VII retaliation claims. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct (2013), the Court considered for the first time whether the appropriate causation standard for retaliation claims, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., is the same as for other types of Title VII discrimination claims. Ultimately, it determined that retaliation claims require a higher, but-for causation standard. Nassar, a physician of Middle Eastern descent, was a faculty member at UT Southwestern Medical Center and a staff physician at university-affiliated Parkland Memorial Hospital. Dr. Nassar s ultimate supervisor at UT Southwestern was Dr. Beth Levine. Nassar accused Levine of harassment based on his religion and ethnic heritage. Nassar met with Levine s supervisor, Dr. Gregory Fitz, to complain about the harassment. Nassar also tried to obtain a staff physician position at Parkland Memorial Hospital without remaining on the UT Southwestern faculty. Nassar ultimately resigned his position with UT Southwestern. In a letter to Fitz and others, Nassar attributed his resignation to Levine s harassment. Fitz was unhappy with Nassar s letter, which Fitz claimed publicly humiliated Levine, and insisted that Levine be exonerated. Further, upon learning that Parkland Memorial had offered Nassar a staff physician position, Fitz protested, reminding the hospital that pursuant to its affiliation agreement with UT Southwestern, all staff physicians were to be members of the University faculty. The hospital then withdrew its offer to Nassar. Nassar sued UT Southwestern for Title VII race and religious discrimination based on Levine s conduct and for Title VII retaliation based on Fitz s conduct. Considering the proper causation standard for each of these claims, the Court determined that Title VII prohibits two specific, but separate, types of discrimination. Status-based discrimination, is based on personal characteristics such as race, color, religion, sex, and national origin, and is found in 2000e-2. The other, retaliation for opposition to employment discrimination or for supporting a complaint that alleges discrimination, is not based on personal characteristics and is found in an entirely separate section, 2000e-3(a). In the Civil Rights Act of 1991, Congress amended Title VII by adding, among other provisions, 2000e-2(m). This amendment clarified that for purposes of status-based discrimination a plaintiff need only meet the lower causation standard: that the plaintiff s personal characteristic was a motivating factor for the alleged unlawful employment practice. However, this provision does not address the causation standard for retaliation. Considering this apparently intentional decision by Congress to omit retaliation from the 1991 amendment, the Nassar Court concluded that the motivating factor standard for status-based discrimination does not necessarily apply to retaliation claims.

3 Rather, the Court determined that the retaliation language in 2000e-3(a) is more comparable to that found in the Age Discrimination in Employment Act ( ADEA ), 29 U.S.C. 623(a), which requires that the discrimination be because of the individual s age. Based on 2000e-3(a) s similar use of the word because, the Court concluded that the proper causation standard for Title VII retaliation claims is that required for ADEA claims. Namely, a plaintiff must establish that the desire to retaliate was the but-for cause of the challenged employment action, not simply a motivating factor. This decision has significant implications, as it places a substantially higher burden on plaintiffs in retaliation claims than in other Title VII discrimination claims. The Court noted that this heightened standard is of great importance to deterring potential frivolous claims by plaintiffs seeking to avoid undesired changes in employment circumstances, especially given that retaliation claims are now more common than every other type of discrimination claim other than race discrimination according to the Equal Employment Opportunity Commission. *Jeremy M. Brenner is an attorney in the employment and labor practice group at Armstrong Teasdale, LLP in St. Louis Missouri. He can be reached at jbrenner@armstrongteasdale.com. ARTICLES >> Classifying Workers as Interns in Light of Glatt v. Fox Searchlight By Andrew J. Hoag* In the wake of Glatt v. Fox Searchlight Pictures, Inc., No. 11 Civ (S.D.N.Y. 2013), many employers are reconsidering the use of interns. In Glatt, a federal judge held that a large movie studio misclassified workers as interns. Classification of workers has many implications, including the application of federal wage-and-hour requirements. Wage-and-hour requirements are premised upon an employer-employee relationship. Along with an employer-employee relationship comes certain wage-and-hour benefits and burdens. The way that the parties classify their relationship is not dispositive. Federal (or state) law determines the status of the relationship. Under the federal Fair Labor Standards Act, to employ is to suffer or permit to work. 29 U.S.C. 203(g) (2013). As such, a worker is an employee if he or she is suffered or permitted to work. The Glatt decision sheds light on the elusive distinction between unpaid interns and paid employers. Citing a Department of Labor fact sheet, the Glatt court used a six-part test to determine whether workers were employees or unpaid interns. The factors include: 1. Whether the internship is similar to training that would be given in an educational environment; 2. Whether the internship experience is for the benefit of the intern; 3. Whether the intern displaces regular employees or works under close supervision of employees; 4. Whether the intern s activities provide immediate advantage to the employer or impedes the employer s operations;

4 5. Whether the intern is entitled to a job at the conclusion of the internship; and 6. Whether the parties understand that the intern is not entitled to payment of wages. Noting that none of the six factors is controlling, the Glatt court considered the factors under a totality of the circumstances test. The court s application of the six factors to the facts of the case provides further guidance regarding proper classification of workers as employees or interns. With respect to whether the training was similar to an educational environment, the court determined that an internship does not need to include classroom training, but must provide something beyond on-the-job training that employees receive. When considering whether the experience benefited the intern, the court held that it would be insufficient for an employer to show that an intern received some benefit from the internship. Instead, the benefit should be more than incidental to the internship. And it should be distinct from the benefit received by all workers, paid or unpaid. The court also noted, on the displacement factor, that an intern should not perform basic or routine tasks that a paid employee (or other intern) would otherwise perform. Looking to the advantage versus impediment consideration, the court said an intern is apt to impede the work of an employer, not perform work that is essential to the employer. To the contrary, performance of essential work (even if menial) is a characteristic of an employeremployee relationship, not an internship. Further, the court found that when a worker is entitled to a job at the end of the internship it indicates that there may be an employer-employee relationship. The wage issue was dealt with a little differently. The plaintiffs in Glatt understood that they would not be paid. But, the court cautioned that this factor adds little because the Fair Labor Standards Act does not permit employees to waive protections under the Act. Under this rationale, the criterion is a one-sided factor: belief that a worker will be paid indicates an employer-employee relationship; knowledge that a worker will not be paid does not indicate an internship. In sum, there is no brightline between paid employment and an unpaid internship, yet the cost of misclassification can be enormous. Glatt helps provide some guidance to the elusive distinction. *Andrew J. Hoag is an associate in the Los Angeles Office of Fisher & Phillips. His practice is focused on management-side employment law, including single plaintiff and class-action litigation of wage-and-hour, sexual harassment, and discrimination claims. He can be reached at ahoag@laborlawyers.com. NEWS AND ANNOUNCEMENTS >> Join Members of the YLD Labor and Employment Law Committee in New Orleans The YLD Labor and Employment Law Committee invites you to join us in New Orleans for the 7th Annual Labor and Employment Law Conference sponsored by the Section of Labor and Employment Law. The conference, which will be held from November 6-9, 2013 at the Hilton

5 New Orleans Riverside and Loews New Orleans, will feature extensive substantive panels and multiple networking opportunities. This year s Conference features a multilevel program, including tracks geared to young lawyers. The Fundamentals Series will include panels on the impact of bankruptcy on LEL, an overview of whistleblower claims, and a wage and hour boot camp, among many others. Other tracks focus on litigation skills, alternative dispute resolution, ethical issues, traditional labor, and wage and hour, among others. The panels are also balanced, representing all constituencies, including plaintiffs, management, unions, and in-house attorneys. There is no better (or cheaper!) way to get a full years worth of CLE. Networking opportunities abound. From multiple receptions, to a dine-around, and to pro bono projects, the Conference give you the opportunity to make connections with hundreds of LEL practitioners, judges, and agency representatives across the country. The YLD Labor and Employment Law Committee also hosts a happy hour to allow young lawyers to get to know each other. First time attendees are specifically encouraged to attend. The Section does its best to pair new attendees with established mentors, hosting a special reception for the first time attendees to get to know the leaders of the Section. Complete program details and registration information is available on the Section website at We look forward to seeing you in New Orleans!