BSCR Firm News/Blogs Feed Jul 2021 00:00:00 -0800firmwise Issues New Guidance for Employers on COVID-19 Vaccinations in the Workplace Jul 2021Employment & Labor Law Blog<p>On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance seeking to clarify significant questions regarding mandating vaccines for employees, reasonable accommodation, and employee incentives for vaccination.</p> <p>In considering mandatory vaccination policies in the workplace, the EEOC advised employers to be mindful of whether certain employees may face greater barriers to obtaining vaccination, and to make sure that any mandatory vaccination program would not disparately affect any protected classes. The EEOC confirmed that an employer may require all employees physically entering the workplace to receive a COVID-19 vaccination, so long it continues to comply with reasonable accommodation obligations under the ADA and Title VII for employees seeking an exemption. Notably, the EEOC remains silent on an employer&rsquo;s ability to mandate vaccination of remote workers. Employers who implement a mandatory vaccination policy must ensure that the standard is job-related and consistent with &nbsp;business necessity.</p> <p>&nbsp;Reasonable accommodation may be required for an employee who declines vaccination due to a disability or sincerely held religious belief, unless doing so would pose an undue hardship on the operation of the employer&rsquo;s business or create a direct threat to the health of others. Employees who are not vaccinated because of pregnancy may also be entitled to adjustments (under Title VII) if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion. (Note, however, that the May 28th EEOC guidance says employers should be alert to and should follow any updated CDC guidance, <a href="">and on June 29th, the CDC issued new guidance</a> that essentially encourages pregnant persons to be vaccinated, because they are at above-average risk for Covid-19 infection. While the new CDC guidance may not have the effect of reversing the EEOC&rsquo;s guidance on this point, it at least may muddy the waters.)</p> <p>The EEOC reminded employers that when determining if an employee poses a &ldquo;direct threat,&rdquo; the employer must make an individual assessment of the employee&rsquo;s ability to perform the essential functions of the job and rely on reasonable medical judgment regarding the most current medical knowledge about COVID-19, including factors such as current community spread. Further considerations of the employer&rsquo;s assessment of a &ldquo;direct threat&rdquo; may include: the proximity of the employee to co-workers; whether they work indoors or outdoors; available ventilation; direct interaction with others; how many nearby individuals are partially or fully vaccinated; and whether employees are wearing masks, social distancing, or undergoing routine testing. For employees receiving an exemption from a workplace mandatory vaccination program, employers may continue requiring the use of face coverings, social distancing, and periodic COVID-19 testing. Other examples of reasonable accommodations include: modified work shifts; telework; or a reassignment.</p> <p>The EEOC has further clarified that employers may use incentives to encourage employee vaccinations so long as the incentive is not tied to the employee receiving the vaccine from the employer itself, or any other entity with which the employer may have a contract. Employers may provide incentives upon proof of vaccination from a third party. Employers may not offer incentives to employees for vaccinations received by family members from the employer or its agent. Employers are not allowed to require employees to have family members become vaccinated and must not penalize employees if family members decide not to become vaccinated. While employers are allowed to require documentation or other confirmation of vaccination, the ADA requirements for confidentiality of employee medical information applies such documentation.</p> Though the EEOC has provided some guidance on these issues, many speculate there will be a variety of legal issues that may come up as employers begin to implement return-to-work policies and mandatory vaccination policies in the months to come.&nbsp; You Have a Record? From Conviction History to EEO-1 Reports, Illinois Imposes New Requirements on Employers Jul 2021Employment & Labor Law Blog<p>Every year, it seems as though the Illinois legislature imposes more and more requirements on employers for the protection of employees, and 2021 is no exception. This spring, Governor J.B. Pritzker signed into law amendments to the Illinois Human Rights Act (IHRA), the Illinois Business Corporation Act, and the Illinois Equal Pay Act under Senate Bill 1480.&nbsp;The new law provides protections to individual with criminal convictions, and adds requirements on employers to report employee demographic and payroll information to the Illinois Secretary of State.</p> <p>As a refresher, the IHRA protects employees from discrimination and harassment on the basis of sex, race, color, national origin, religion, age, etc. in the workplace.&nbsp;Now, the IHRA protects employees (and potential employees) with criminal convictions.&nbsp;In essence, employers are now restricted from using an individual&rsquo;s criminal record to disqualify an individual from employment or act adversely against an individual with a criminal record unless: (1) there is a substantial relationship between the criminal offense and the employment position sought or held; or (2) an unreasonable safety risk to a person or property exists.&nbsp;The test to determine whether a &ldquo;substantial relationship&rdquo; exists requires the employer to consider &ldquo;whether the employment position offers an opportunity for the same or similar offense to occur&rdquo; or whether circumstances exist that would lead to similar conduct</p> <p>Factors that must be considered by the employer when determining if there is a &ldquo;substantial relationship&rdquo; or &ldquo;unreasonable safety risk&rdquo; include: (1) the amount of time that has passed since the conviction; (2) the number of convictions the individual has; (3) the nature and severity of the conviction in conjunction with the safety and security of others; (4) the facts and circumstances regarding the conviction; (5) the employee&rsquo;s age when convicted; and (6) evidence regarding the individual&rsquo;s rehabilitation efforts.&nbsp;</p> <p>If it is determined that a &ldquo;substantial relationship&rdquo; exists or there is an &ldquo;unreasonable safety risk,&rdquo; the employer may preliminary disqualify the individual from employment based on the conviction.&nbsp;If disqualified, the individual must receive written notice of the decision, which should include the conviction that disqualified the individual, the conviction history report obtained by the employer, and information for the individual to respond to the employer&rsquo;s position on disqualification.&nbsp;The employer must provide the individual with five business days to respond to the written notice.</p> <p>If the employer decides to stand on the disqualification after receiving the individual&rsquo;s response, the employer is required to do the following: (1) provide the individual with its final decision regarding the disqualification in writing; (2) state the conviction that led to the disqualification, including the reasoning behind the decision; (3) inform the individual of any other avenues the individual can take to challenge the employer&rsquo;s decision (if applicable); and (4) advise the individual of his or her right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).</p> <p>Not only does the new law amend the IHRA, but it also amends the Illinois Business Corporation Act.&nbsp;In essence, the amendment provides that corporations are required to provide substantially similar information that is contained in EEO-1 reports to the Illinois Secretary of State.&nbsp;This requirement is for those corporations that are required to submit an EEO-1 report with the EEOC.&nbsp;Corporations who are required to provide this information in annual reports must include this information beginning January 1, 2023.</p> <p>To ensure females and minorities receive compensation that is not consistently below the wages of white males, the new law amends the Illinois Equal Pay Act of 2003, which requires non-public employers with more than 100 employees to obtain an &ldquo;equal pay registration&rdquo; certificate from the Illinois Department of Labor (IDOL) on or before March 23, 2024.&nbsp;To obtain a certificate, employers need to provide an EEO-1 report to the IDOL, as well as proof of all wages paid to its employees over the prior year.&nbsp;Employers covered by this amendment are required to obtain a recertification every two years after its first submission.&nbsp;This amendment to the Equal Pay Act also provides protections to whistleblowers and the imposition of civil penalties against employers who do not comply with the certification requirements.</p> <p>Undoubtedly, these new amendments impose additional burdens on employers and subject employers to additional liability.&nbsp;Conformance with these new laws is critical to ensure that employers are not subject to penalties or liability under the IHRA and the Equal Pay Act.</p>, Promises in Arbitration of Employment Disputes Jun 2021Employment & Labor Law Blog<p>Employers frequently adopt arbitration programs for resolving disputes with their employees. Arbitration is generally cost-effective and efficient compared with litigation in court. Benefits include reduced discovery costs, shorter time to resolution, and arbitrators willing to make compromise decisions, potentially reducing an employer&rsquo;s overall exposure. But there has also been a corresponding increase in arbitration-related litigation in recent years, and much of it relates to employers&rsquo; desire to retain the right to modify their arbitration programs.</p> <p>In <i>Harris v. Volt Mgmt. Corp.</i>, the Missouri Court of Appeals for the Eastern District reaffirmed that under Missouri law, an arbitration agreement that vests in one party the unfettered right to modify the arbitration program lacks consideration and will not be enforced. The Court affirmed a decision of the circuit court overruling an employer&rsquo;s motion to compel arbitration, finding that the arbitration agreement lacked consideration because Volt&rsquo;s promise to arbitrate disputes with its employees was illusory. Language in the arbitration agreement, which reserved for Volt the unfettered right to unilaterally modify the terms of the arbitration program, was not a promise at all. As a result, the circuit court would not compel the employee to arbitrate her claims, instead her lawsuit to proceed.</p> <p>As a matter of law, an arbitrator&rsquo;s jurisdiction over a dispute requires that a valid contract exists between the parties to refer their disputes to an arbitrator for resolution. Because an arbitration agreement is a contract, the essential elements of a valid contract &ndash; offer, acceptance, and consideration &ndash; must be present. In the employment context, arbitration agreements are generally bilateral. Consideration for the agreement is a mutual exchange of promises between the employer and the employee to arbitrate any disputes that arise from the employment relationship. In a bilateral agreement, mutuality requires that <b><i>both</i></b> the employer and employee agree to refer their disputes to arbitration.</p> <p>The circuit court generally has exclusive authority to decide whether a dispute is procedurally arbitrable, that is, whether a valid arbitration agreement exists. Challenges to the existence of a valid arbitration agreement may include an employee&rsquo;s claims to have never signed the agreement, duress, unconsionability, or any other challenges to contract formation. However, parties may agree to delegate this authority to the arbitrator, as long as the delegation is &ldquo;clear and unambiguous.&rdquo; This &ldquo;delegation&rdquo; clause is a separate agreement within the arbitration agreement, which must also be supported by consideration. Often, parties will incorporate by reference the rules of the American Arbitration Association (&ldquo;AAA&rdquo;) into the arbitration agreement. Section 6.a. of the AAA Employment Rules states that &ldquo;The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.&rdquo; [<a href="">EmploymentRules_Web_2.pdf (</a>]. Missouri courts have held that incorporation of this rule into an arbitration agreement can be a valid delegation.</p> <p>In <i>Harris</i>, an employee was terminated, allegedly in retaliation for her seeking orders of protection against her co-workers and for other illegal reasons. Harris subsequently filed a lawsuit asserting claims of wrongful termination, retaliation, and related claims. After the suit was filed, the defendants moved to compel arbitration, asserting that the parties had agreed to arbitrate any disputes arising from the employment relationship. The defendants also claimed that the parties had delegated arbitrability issues to the arbitrator.</p> <p>The arbitration agreement at issue was contained in an &ldquo;Employee Guide&rdquo; provided to all new employees at hiring. The Employee Guide provided employees with &ldquo;general information about Volt&rsquo;s rules, policies, plans, procedures and practices concerning the terms and conditions&rdquo; of their employment. The Employee Guide contained a section entitled &ldquo;Travel expense policy | Arbitration,&rdquo; which stated that &ldquo;[a]ny dispute, controversy or claim which arises out of, involves, affects or relates in any way to your employment&rdquo; must be referred to arbitration. The arbitration would be conducted &ldquo;in accordance with the applicable rules of the American Arbitration Association (AAA).&rdquo; The next page of the Employee Guide contained an &ldquo;Acknowledgement,&rdquo; which employees were required to sign, that contained the following crucial provision: &ldquo;Volt has the right to change, interpret or cancel any of its rules, policies, benefits, procedures or practices at Volt&rsquo;s discretion, upon reasonable notice where practicable. [&hellip;] Except as otherwise stated, I agree to arbitrate any and all disputes related to my employment or assignment(s) with Volt, as discussed in this Guide.&rdquo;</p> <p>The Court held that the employer retained the right to modify any part of the Employee Guide, including the arbitration agreement and the delegation clause. Because that provision purported to give the employer an &ldquo;unfettered right&rdquo; to unilaterally modify the arbitration provision at any time, Volt&rsquo;s promise to arbitrate was illusory. The Court echoed concerns from prior cases that an employer could sense that an arbitration case was going badly, revoke their arbitration agreement, and get a second bite at the apple in court.</p> <p>The Court also rejected Volt&rsquo;s argument that Harris did not separately attack the delegation clause. Generally, a party opposing arbitration must challenge the delegation clause and the arbitration agreement separately. Here, however, the Court permitted Harris to challenge both the delegation clause and the arbitration agreement together, as the challenge to both agreements were premised on the same argument; and Harris explained in her brief that the delegation clause lacked consideration for the same reason as the entire arbitration agreement.</p> <p><b><u>Takeaways</u></b></p> <ul> <li>Arbitration is a matter of contract. Missouri courts have long emphasized that employers should not treat an arbitration agreement as a policy to be unilaterally imposed on employees.</li> <li>When drafting arbitration agreements, employers should use care to ensure that modification rights apply only <i>prospectively</i>. The courts have recognized that &quot;limiting an employer's unilateral right to amend an&nbsp;arbitration&nbsp;agreement to amendments that [(1)] are prospective in application and [(2)] about which employees have been afforded reasonable advance notice may prevent an employer's mutual promise from being rendered illusory.&quot; <i>Patrick v. Altria Grp. Distribution Co.</i>, 570 S.W.3d 138, 144 (Mo. App. 2019).</li> </ul> Jury Instructions "At-Will?" Not Under the Missouri Human Rights Act Jun 2021Employment & Labor Law Blog<p>Practically every employee handbook has one: a statement that the employee&rsquo;s employment is at-will.&nbsp;Many times, employers require employees to sign an acknowledgment, affirming that the employees know and understand that their positions may be terminated with or without cause.&nbsp;However, is at-will employment a lawful reason to modify a Missouri approved jury instruction at one&rsquo;s will?&nbsp;No dice, says Missouri&rsquo;s Western District Court of Appeals.</p> <p>In <i>Kelly v. City of Lee&rsquo;s Summit</i>, the court examined whether the trial court erred in overruling the plaintiff-employee&rsquo;s objection to a modified jury instruction presented by the defendant-employer regarding the plaintiff&rsquo;s at-will employment status and the lawful reason for her termination.&nbsp;The plaintiff sued under the Missouri Human Rights Act (MHRA), claiming she was terminated by her employer in violation of the MHRA, on account of her race, age, and gender.</p> <p>Like many employers, the defendant-employer required the plaintiff to sign an agreement indicating that she understood that her employment was at-will, and that she could be terminated without cause.&nbsp;Plaintiff was terminated, and in a dismissal letter, the employer stated that, although plaintiff was being terminated without cause, the &ldquo;reason for [her] termination was overall unacceptable performance,&rdquo; including &ldquo;[f]ailure to understand policies, procedures, ordinances, laws, and processes&hellip;[i]naccurate and late work product&hellip;[f]requent shifting of responsibility for assigned work&hellip;and [i]neffective leadership&rdquo; (Huh? Kinda sounds like cause to me, but IDK&hellip;). At trial, the employer presented evidence of the plaintiff&rsquo;s poor work performance, but during closing argument, maintained that the plaintiff&rsquo;s job performance was essentially irrelevant in the jury&rsquo;s determination (I don&rsquo;t get it employer&hellip;why bring it up then?).</p> <p>In general, every employee&rsquo;s employment is deemed to be at-will.&nbsp;A fundamental exception to this rule comes into play, however, if an employee is terminated&nbsp;based on her race, color, religion, national origin, sex, ancestry, age, or disability, as spelled out in the MHRA, Title VII, and other anti-discrimination statutes.</p> <p>If an employee claims that her termination was improper under the MHRA, the employer can present evidence that the employee was terminated for a lawful reason.&nbsp;An employer that has presented such evidence can request the &ldquo;lawful justification&rdquo; jury instruction (<i>i.e.</i>, MAI 38.02), which (in essence) provides that the verdict must be for the employer if the employer terminated the plaintiff because of a specific lawful reason, and in doing so, the improper reasons under the MHRA were not contributing factors in the decision to terminate.<a href="file:///C:/Users/LJR/ND%20Office%20Echo/" name="_ftnref1" title="">[1]</a>&nbsp;The rules are clear that if the aforementioned &ldquo;lawful justification&rdquo; instruction is utilized, it must not be amended.</p> <p>In <i>Kelly</i>, the employer requested the &ldquo;lawful justification&rdquo; jury instruction (I mean, which employer wouldn&rsquo;t?), but changed the verbiage of the instruction, deleting the word &ldquo;because&rdquo; from the instruction.&nbsp;The employer&rsquo;s jury instruction was modified to read as &ldquo;Defendant terminated Plaintiff under the Management Agreement &ldquo;without cause&rdquo; and &ldquo;in doing so, neither race, age, nor sex/gender was a contributing factor.&rdquo;&nbsp;The employer maintained that the &ldquo;lawful reason&rdquo; for the termination was its at-will policy (Wait&hellip;but the MHRA is an exception to the at-will employment doctrine&hellip;not following you employer&hellip;).</p> <p>The court emphasized a familiar point: &nbsp;if an MAI instruction applies to a case, the MAI instruction must be used.&nbsp;The court determined that the employer modified the instruction, as counsel deleted the word &ldquo;because&rdquo; from the instruction.&nbsp;Further, the court determined that the employer&rsquo;s proffered reason for termination (<i>i.e.</i>, its ability to do so under the at-will agreement) was not an actual reason for plaintiff&rsquo;s termination; rather, it was a statement that the employer did not act for specified reasons.&nbsp;According to the Court, the fact that the employer &ldquo;did <i><u>not</u></i> act for certain reasons, or that it acted for &lsquo;no reason,&rsquo; are not themselves statements of a &lsquo;lawful reason&rsquo; for&hellip;termination.&rdquo;</p> <p>Having found that the modifications to the jury instruction were improper, the court next looked to whether the employer could demonstrate that there was no prejudice as a result of the modification.&nbsp;The court determined that the employer&rsquo;s modified instruction &ldquo;did not allow the jury to get to the question of whether there was an underlying <i>lawful reason</i>, not in violation of the MHRA, why [plaintiff] was terminated&rdquo;; rather, the modified instruction &ldquo;kept the jury from getting to the question of whether there was a lawful reason for discharge&rdquo; (sounds prejudicial to me).&nbsp;According to the court, &ldquo;the intention of the instruction was thwarted by asking the jury to answer an entirely different question: was [plaintiff] an at-will employee.&rdquo;&nbsp;Accordingly, the court held that the employer had not met its burden of demonstrating a lack of prejudice.</p> <p>Next, the court determined if any prejudicial effect occurred as a result of the modification.&nbsp;The court determined that the modification was prejudicial, as a non-discriminatory reason for the plaintiff&rsquo;s termination was not stated in the instruction.&nbsp;Rather, the modified instruction allowed the jury to conclude that it could find for the employer if it believed that plaintiff was terminated from employer pursuant to its &ldquo;at-will&rdquo;/&rdquo;without cause&rdquo; policy.&nbsp;According to the court, &ldquo;[w]here, as here, the defendant is provided the benefit of the [lawful justification instruction], yet is able to sidestep the need to provide any lawful reason <i>at all</i> and submit a wholly different, contractually-based cause for termination, prejudice occurs.&rdquo;&nbsp;Further, the court noted that the employer introduced evidence at trial related to the plaintiff&rsquo;s poor performance, but during closing argument, essentially advised the jury that plaintiff&rsquo;s performance was irrelevant for determining the reason for employee&rsquo;s termination.&nbsp;According to this court, such an assertion ignored a powerful circumstantial evidence tool for plaintiffs in discrimination cases, as stated reasons for an employee&rsquo;s discharge can be determined to be pretexual.&nbsp;In essence, by arguing that the performance issues were irrelevant, the employer &ldquo;virtually suggested to the jury that only direct evidence of discriminatory animus could support a verdict in [employee&rsquo;s] favor.&rdquo;&nbsp;Accordingly, the appellate court <a href="">reversed</a> the decision of the trial court and remanded the case for further proceedings.</p> <p>Lessons Learned: (1) an at-will/no-cause agreement is not a lawful reason for terminating an individual when faced with MHRA violations; and (2) you can&rsquo;t change an approved Missouri instruction at-will in a MHRA case unless you want to risk re-trying the case.</p> <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/LJR/ND%20Office%20Echo/" name="_ftn1" title="">[1]</a> Kelly's termination occurred before the August 2017 amendments to the MHRA, which raised a plaintiff&rsquo;s burden of proof in a discrimination case.&nbsp;A plaintiff now must show that her race, gender/sex, or age was a determining (rather than merely &quot;contributing&quot;) factor in the employment decision.&nbsp;MAI was changed accordingly, and for cases arising after August 28, 2017, new MAI 38.06 directs that a plaintiff must show that her protected classification &quot;played a role and was a determinative factor&quot; in the employment decision.</p> </div> </div> and Missouri Federal Courts Raise the Stakes on Employers' Tip Pooling Practices May 2021Employment & Labor Law Blog<p>In separate cases, the U.S. District Courts for the Districts of Kansas and the Western District of Missouri recently certified classes under the Fair Labor Standards Act (&ldquo;FLSA&rdquo;) to pursue claims against Boyd Gaming and Pinnacle Entertainment, Inc. regarding tip-pooling arrangements and notice issues at local casinos, and other casino locations.</p> <p>In <a href=";hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>James v. Boyd Gaming Corp</i></a><i>. </i>the District of Kansas certified classes relating to the tip pooling policies of Boyd Gaming at the Kansas Star Casino.&nbsp;And in <a href=";hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>Lockett v. Pinnacle Entm&rsquo;t</i></a>&nbsp;the Western District of Missouri certified similar classes related to tip pooling policies at Ameristar Council Bluffs, Ameristar Casino, Cactus Pete&rsquo;s, Boomtown New Orleans, L&rsquo;Auberge Baton Rouge, Boomtown Bossier City, L&rsquo;Auberge Lake Charles, River City, Ameristar Vicksburg, and The Meadows casinos.&nbsp;In both cases the Court certified classes challenging both the tip splitting policies and the employers&rsquo; notice to employees.</p> <p>The FLSA requires that employees receive a minimum wage of $7.25 an hour.&nbsp;Section 203(m) of the FLSA allows employers to pay tipped employees below the Federal minimum wage so long as the employees retain all tips, subject to permitted tip pooling arrangements, and the employer provides proper notice of the provisions of &sect;203(m).&nbsp;</p> <p>If you walk into one of these casinos, you would likely find yourself, unwittingly, at the epicenter of the issue in both cases.&nbsp;Table games, such as blackjack and roulette, have dealers who play the games with customers and pit-bosses who supervise the casino floor. Table dealers receive pooled tips, where the casino collects the tips and equally redistributes them to all dealer, and wages below the Federal Minimum Wage.&nbsp;The pay for pit-bosses exceeds the minimum wage, but the supervisory positions do not get tips. Many casinos, including those above, have employees who work in dual roles covering both the pit-boss position and table dealer position on different day.&nbsp;All employees accrued Paid Time Off (PTO) based on their seniority and hours worked.&nbsp;When a tipped employee took PTO they received tips from the pool as if they had actually worked that shift.</p> <p>Plaintiffs sought class certification of FLSA violation claims relating to the tip pooling practices applied to dual-role dealers.&nbsp;Plaintiffs allege that the casinos violated two FLSA provisions: first, a requirement to redistribute tips to employees &ldquo;who customarily and regularly receive tips,&rdquo; and second, a provision precluding the employers from keeping any portion of the tips collected.&nbsp;More specifically, Plaintiffs allege that when a dual-role employee took PTO, that pay necessarily occurred at the dealer&rsquo;s rate, including tip shares, regardless of whether the employee earned the PTO working as a dealer or supervisor.</p> <p>The FLSA allows an employee to bring wage/hour claims on behalf of himself and others, in a so-called &ldquo;collective action&rdquo;. Unlike class action suits, FLSA collective actions require claimants to opt-in rather than opt-out to participate in pursuing claims against the employer.&nbsp;Federal courts generally utilize a two-step approach to determining whether claims can be pursued on a class-wide basis. Under the two-stage approach, the court must first determine if the plaintiff has sufficiently alleged that all potential claimants are victims of a single policy.&nbsp;At the initial stage, the court can look to the allegations of the Complaint, supporting affidavits or declarations, but the court does not weigh evidence, resolve factual disputes, or rule on the merits until the second stage.&nbsp;If the court determines that a single policy has affected multiple &ldquo;similarly situated&rdquo; employees, it may issue a conditional class certification, which then enables plaintiffs to send out notice to all potential class members.</p> <p>Both the <i>Lockett </i>and <i>James</i> courts conditionally certified the plaintiffs&rsquo; tip pooling class, as well as classes regarding the employers&rsquo; compliance with the FLSA&rsquo;s notice requirements regarding tip withholdings.&nbsp;</p> <p>So what happens next?</p> <p>Plaintiffs and defendants in both cases will get together to work out issues related to language and timing for the notice and opportunity to opt-in to the cases.&nbsp;After discovery, the courts will be called upon to make a final determination regarding whether the employees&rsquo; have similarly situated claims.&nbsp;&nbsp;</p> <p>We will keep our eyes on these cases to anticipate any impacts the decisions may have for all employers in tipping industries.&nbsp;</p>, Boomer…Does Your Employee Have an Age Discrimination Claim? Apr 2021Employment & Labor Law Blog<p>We&rsquo;ve all heard it (and in my case, I am publishing it &ndash; sorry, HR!): OK, Boomer.&nbsp;This phrase has risen in popularity over the years as a way of suggesting that Baby Boomers (<i>i.e.</i>, those born between 1946 and 1964) have mindsets or attitudes that may be at-odds with those of younger generations.&nbsp;The &ldquo;OK Boomer&rdquo; phrase has shown up in viral Internet memes and GIFs, as a way of portraying Boomers as out-of-touch.&nbsp;The Supreme Court has even discussed the meme, when Chief Justice Roberts asked an attorney during oral argument if saying to an applicant &ldquo;OK, boomer&rdquo; is enough to qualify as age discrimination.</p> <p>As discussed in <a href=";an=115217&amp;format=xml&amp;stylesheet=blog&amp;p=5258">my last post</a>, the Age Discrimination in Employment Act (ADEA), Illinois Human Rights Act (IHRA), and Missouri Human Rights Act (MHRA) prohibit discrimination against employees who are 40 years old or older in any aspect of employment.&nbsp;Similarly, it is unlawful for an employer to harass an employee because of the worker&rsquo;s age, if 40 or older.&nbsp;Such harassment can include derogatory or offensive remarks regarding an individual&rsquo;s age, to the point where such comments are so frequent and severe that they create a hostile work environment.&nbsp;These laws clearly protect Boomers from age discrimination in the workforce.</p> <p>As things stand, using the word &ldquo;Boomer&rdquo; in a derogatory fashion is likely not in and of itself enough to establish age discrimination.&nbsp;According to the Seventh Circuit, &ldquo;isolated comments that are no more than &lsquo;stray remarks&rsquo; in the workplace are insufficient to establish that a particular decision was motivated by discriminatory animus.&rdquo;&nbsp;<i>Merillat v. Metal Spinners, Inc.</i>, 470 F. 3d 685, 694 (7th Cir. 2006) (citing <i>Cullen v. Olin Corp.</i>, 195 F. 3d 317, 323 (7th Cir. 1999)).&nbsp;With that being said, &ldquo;this general rule may give way where particular remarks in fact support an inference that unlawful bias motivated the decision-maker, such as when those remarks are made by the decision-maker or one having input in a decision, and are made &lsquo;(1) around the time of, and (2) in reference to, the adverse employment action complained of.&rsquo;&rdquo; <i>Id.</i> (quoting <i>Hunt v. City of Markham</i>, 219 F. 3d. 649, 652-53 (7th Cir. 2000)).</p> <p>Let me sock it to you with what this means.&nbsp;If a 30 year-old employee refers to a 60 year old employee as a Boomer in a derogatory manner, without more, the 60 year old can hardly be said to have suffered age discrimination or a hostile work environment on account of the errant remark.&nbsp;However, if the 30 year-old employee is the 60 year-old&rsquo;s supervisor and routinely refers to the 60 year-old as a Boomer and the employee suffers some adverse employment action at the hands of the supervisor, the Boomer may have a case under the ADEA or other state anti-discrimination law.&nbsp;Similarly, if the supervisor terminates the 60-year old employer, and near or at the time of the termination refers to the employee as a Boomer, the Boomer may also have a discrimination case.&nbsp;With all that being said, employers should caution their employees at all levels of employment on language that can be perceived as discriminatory.&nbsp;By allowing such language to infiltrate the workplace, employers are simply setting themselves up for a discrimination claim &ndash; regardless if the claim has merit.</p> <p>And finally, Millennials and Gen Z:&nbsp;let&rsquo;s remember that Boomers deserve respect, and even praise, for your culture today.&nbsp;Millennials &ndash; known for their usage of acronyms &ndash; should thank Boomers, as acronyms gained popularity in the 1960s during the Cold War and space race between the U.S. and Soviet Union, laying the groundwork for Millennial acronyms, such as OMG, LOL, BTW, FBF, and IMO.&nbsp;&nbsp;&nbsp; While Millennials use many (some would say ridic) slang terms and phrases., such as &ldquo;on fleek,&rdquo; &ldquo;slay,&rdquo; and &ldquo;turnt,&rdquo;&nbsp;let&rsquo;s also not forget that Boomers are responsible for such slang words and phrases as &ldquo;groovy,&rdquo; &ldquo;gimme some skin (my FAVE!),&rdquo; and &ldquo;outta sight.&rdquo;&nbsp;So maybe there is more in common between Millennials and Boomers than we think?&nbsp;So don&rsquo;t flip your wig, you dig?</p> for Permanent Injunction Not Open for Interpretation Mar 2021Employment & Labor Law Blog<p>On March 2, 2021, the Missouri Court of Appeals, Eastern District, in <i>Chemline Inc. v. Mauzy</i>, affirmed in part and reversed and remanded in part, a St. Louis County Circuit Court&rsquo;s order finding a sales representative in contempt of the court&rsquo;s permanent injunction order expressly prohibiting contact with his former employer&rsquo;s customers. The trial court assessed a compensatory fine, despite plaintiff&rsquo;s failure to demonstrate that it suffered actual damages as a result of the contemptuous conduct, and attorneys&rsquo; fees.</p> <p>The case involved restrictive covenants, including a non-compete and non-solicitation agreement, between Chemline Inc. and its former sales representative Timothy Mauzy.&nbsp; Mauzy left Chemline and began working for IXS Coatings in a sales capacity.&nbsp; Seven months later, Chemline filed a petition for injunctive relief, claiming Mauzy violated the non-compete and non-solicitation provisions of his employment agreement in that he contacted customers with whom he had a relationship during his employment with Chemline.&nbsp; Both Chemline and IXS coatings are in the business of custom coating for use in industrial and commercial application and, thus, are direct market competitors.</p> <p>The trial court entered an order of permanent injunction prohibiting Mauzy from contacting five specific customers with whom he had a relationship during his employment at Chemline.&nbsp; Four months after the injunction was entered, Chemline. file a motion for contempt and to show cause alleging Mauzy&rsquo;s interactions with an employee from one of the five customers constituted a willful violation of the order.&nbsp; The trial court found Mauzy engaged in &ldquo;willful disobedience&rdquo; of the order and entered a judgment of contempt, awarded Chemline $6,000 in attorney&rsquo;s fees and $2,000 in compensatory damages for interfering with Chemline&rsquo;s business relationships.&nbsp;</p> <p>Mauzy appealed claiming the trial court erred in: 1) finding him in contempt because the conduct was not clearly, unambiguously, and expressly prohibited by the order; 2) assessing a $2,000 compensatory fine where there was no evidence of actual damage; and 3) awarding Chemline Inc. $6,000 in attorney&rsquo;s fees because he did not violate the injunction order, willfully or otherwise.</p> <p>As to Point I regarding whether the order clearly, unambiguously and expressly prohibited Mauzy&rsquo;s conduct, Mauzy claimed the order only precluded contact with the <i>companies</i> and not their <i>individual employees</i>. Mauzy did not deny being in contact with employees from former clients. He further claimed the order prohibited contacting former clients for &ldquo;business-related solicitation&rdquo; and not personal communication, though this distinction was not addressed in the order at issue, nor did Mauzy request clarification of the trial court&rsquo;s order before directly violating it.&nbsp; The Court of Appeals found no error in the trial court&rsquo;s conclusion that the order&rsquo;s prohibition on &ldquo;contacting&rdquo; former clients, encompassed all communications.</p> <p>As to Point II regarding the court assessing a compensatory fine, the Court of Appeals held the trial court erred in assessing the $2,000 compensatory fine as there was no evidence that Chemline. suffered any actual damage as a result of Mauzy&rsquo;s conduct.&nbsp; Because compensatory fines are meant to be remedial in nature, these fines must be related to actual damage suffered.&nbsp; Chemline could not demonstrate a quantified diminution in business sales for which compensatory damages would be appropriate.&nbsp; Thus, the trial court erred in assessing and remanded for reconsideration of the compensatory fine.&nbsp;</p> <p>As to Point III regarding the award of attorney&rsquo;s fees, the trial court&rsquo;s order was affirmed, as the trial court has inherent authority to assess attorneys&rsquo; fees in a civil contempt proceeding.&nbsp; The Court of Appeals will affirm an award of attorneys&rsquo; fees unless it constitutes an abuse of discretion, which was not found in this case.&nbsp;</p> Moral of the story: don&rsquo;t try to get cute with interpreting a court&rsquo;s permanent injunction order.&nbsp; &ldquo;No communication&rdquo; does in fact mean <b>NO</b> communication Woke: Millennials and Age Discrimination Mar 2021Employment & Labor Law Blog<p>Mmmk. Imma spill some tea.&nbsp;Some Millennials are now protected under the Age Discrimination in Employment Act (ADEA), as well as the Illinois Human Rights Act (IHRA), Missouri Human Rights Act (MHRA), and other state laws.&nbsp;Millennials &ndash; who are defined as individuals born between 1981 and 1996 &ndash; are just beginning to turn 40 years old this year (I&rsquo;m looking at you, Paris Hilton).&nbsp;Yes &ndash; you heard me right.&nbsp;This means some (but not all) Millennials now have standing to sue employers for age discrimination. It&rsquo;s offish.</p> <p>So what does this mean?&nbsp;The ADEA, IHRA, and MHRA prohibit discrimination against employees who are 40 years old or older in any aspect of employment.&nbsp;Similarly, it is unlawful for an employer to harass an employee because of the worker&rsquo;s age, if 40 or older.&nbsp;Such harassment can include derogatory or offensive remarks regarding an individual&rsquo;s age to the point where such comments are so frequent and severe that they create a hostile work environment.</p> <p>Millennials account for a majority of the workforce.&nbsp;Majority status notwithstanding, Millennial bashing is definitely a thing.&nbsp;Employers have continually expressed frustration with Millennial employees, believing (rightly or wrongful) that Millennials have a sense of entitlement, need to be spoon-fed, are glued to TikTok, and lack loyalty.&nbsp;Many older employees perceive Millennials as lazy, in part due to many Millennials&rsquo; preference for texting and emailing over making phone calls.&nbsp;Some commentators have even suggested that there is a generational war between Millennials and &ldquo;Boomers.&rdquo;&nbsp;It should come as no surprise, then, that in a 2019 survey conducted by Glassdoor on diversity and inclusion, 52% of the Millennials surveyed indicated that they had experienced or witnessed age discrimination in their careers.&nbsp;</p> <p>Although many Millennials may claim to experience age discrimination in the workplace, employers are allowed to favor older workers over younger workers, even if both employees are over the age of 40.&nbsp;For Millennials who are just turning 40, this means that an employer can favor a &ldquo;Boomer&rdquo; over you.&nbsp;Some Millennials may perceive such favoritism as discrimination against them because the Millennials are just that &ndash; Millennials&hellip;not because the older employee has seniority or is a more experienced employee.&nbsp;Because of the seemingly strong divide between the perceived mindsets of &ldquo;Boomers&rdquo; and Millennials, as well as the growing trend of additional employee protections in the workplace, it is possible that a greater push will be made for protections against favoritism against &ldquo;older employees&rdquo; over Millennials covered under the ADEA, IHRA, and MHRA.&nbsp;In addition, Millennials protected under the ADEA and state anti-discrimination and harassment laws may argue that they are harassed at work for being Millennials, which implies that the Millennials are being harassed on account of their age. All of this, however, is obv TBD.</p> <p>BTW Millennials, using the word &ldquo;Boomer&rdquo; is throwing shade on an entire generation that is older than you (and who are, therefore, a protected class under federal and state age discrimination laws).&nbsp;Dropping the word &ldquo;Boomer&rdquo; is also kinda, sorta, obvs discriminatory.&nbsp;So stay tuned for my next blog on &ldquo;Boomer&rdquo; discrimination and harassment&hellip;MTF&hellip;</p> Court of Appeals holds an employer may not reserve the right to litigate claims against an employee in court while simultaneously restricting the employee to arbitrate her employment claims. Jan 2021Employment & Labor Law Blog<p>The question of whether an arbitration agreement is enforceable is an oft-disputed issue prone to be volleyed between the courts and an arbitrator; such was the case in <i>Caldwell v.</i><i> UniFirst Corporation, </i>No. ED108409, 2020 Mo. App. LEXIS 1328 (Ct. App. Oct. 27, 2020).</p> <p>This case involves a contract within a contract within a contract: a delegation provision contained in an arbitration agreement, which was contained in an employment contract. This not-uncommon scenario requires a court to look at the three contracts and analyze each independent of the others.&nbsp;</p> <p>In <i>Caldwell</i>, a former at-will employee sued his former employer (UniFirst) under the Missouri Human Rights Act alleging disability discrimination and retaliation claims.&nbsp; UniFirst moved to compel arbitration based on the arbitration clause in Caldwell&rsquo;s employment contract.&nbsp; UniFirst also asserted the employment contract contained a binding delegation clause that rendered the threshold issue of whether the case was arbitrable a matter to be determined by an arbitrator rather than by the court.&nbsp; The district court denied UniFirst&rsquo;s motion holding the arbitration clause lacked adequate consideration in two aspects: first, Caldwell&rsquo;s at-will employment was insufficient consideration to support the arbitration agreement, and second, the arbitration clause lacked mutuality because UniFirst unilaterally reserved for itself the ability to assert certain claims against Caldwell in court while Caldwell was required to arbitrate all potential claims.</p> <p>The case made its way to the Missouri Supreme Court, which transferred the case back to the Court of Appeals with the direction to reconsider the case in light of the Supreme Court&rsquo;s decision in<i> Soars</i> <i>v. Easter Seals Midwest</i>, 563 S.W.3d 111 (Mo. banc 2018).&nbsp; In <i>Soars</i>, the court held a delegation clause is severable and should be reviewed independent of any underlying arbitration clause.&nbsp; But in <i>Caldwell</i>, the parties conceded the delegation provision was not at issue, so on reconsideration, the Court held that because the subject delegation provision &ndash; standing alone &ndash; was valid, the question of whether the arbitration agreement as a whole was valid was for the arbitrator to decide.&nbsp;</p> <p>Under Missouri law, an arbitration clause requires its own consideration.&nbsp; Accordingly, the arbitrator ruled that while Caldwell&rsquo;s at-will employment may have supplied sufficient consideration to support the employment agreement, it could not also provide adequate consideration to support the arbitration clause.&nbsp; UniFirst moved to vacate the arbitration order arguing the arbitrator exceeded his power.&nbsp; The trial court denied the motion and affirmed the arbitration order, which UniFirst then appealed.&nbsp;</p> <p>On appeal, in relevant part, only the question of whether the arbitration agreement was supported by consideration was before the Court.&nbsp; At the outset, the Missouri Court of Appeals (Eastern District) held that Missouri contract law principles &ndash; including consideration &ndash; govern whether an arbitration agreement is valid.&nbsp; Under Missouri law, a promise by one party to a contract is sufficient consideration in exchange for a promise by the other party.&nbsp; But when one party retains the unilateral right to sidestep its obligations, that party&rsquo;s promise is considered &ldquo;illusory&rdquo; and thus unenforceable. &nbsp;Here, because only one party was bound to arbitrate its claims both the trial court and the Court of Appeals concluded that the arbitration agreement lacked mutuality of promise and therefore lacked consideration.&nbsp; Thus, the arbitration provision was held unenforceable and the arbitrator&rsquo;s order was affirmed.&nbsp;</p> <p>A little over a year ago, BSCR published a <a href=";an=96663&amp;format=xml&amp;stylesheet=blog&amp;p=5258">blog</a> that describes a case in which the Eighth Circuit reminds employers to go back to the basics when administering arbitration clauses.&nbsp; The Eighth Circuit held an employee&rsquo;s tacit acknowledgement of an arbitration provision by, for example, clicking through the pages of an employment contract on the computer, is not evidence that an employee accepts an arbitration provision contained therein.&nbsp; Last month, <i>Caldwell v. UniFirst Corporation</i> became another example, this time in state court, of the importance of focusing on contracts fundamentals &ndash; here, on the language of the arbitration provision itself.&nbsp;</p> The enforceability of an arbitration clause, particularly in the employment context, has become the well-traveled subject of recent litigation.&nbsp; Which begs the question: why all the fuss when so many employers include arbitration clauses, often coupled with delegation clauses, in employment contracts &ndash; aren&rsquo;t these employers well-equipped to draft arbitration clauses and, in fact, don&rsquo;t the employers intentionally include these provisions for the very purpose of <i>avoiding </i>litigation?&nbsp; In other words, why are employers including and administering these routine provisions in ways that provide employees paths to the courtroom?&nbsp; The simplest explanation is that too many employers don&rsquo;t know they&rsquo;re doing it wrong.&nbsp; Notwithstanding these apparent pitfalls, there are relatively simple solutions to tackling arbitration agreement drafting and administration.&nbsp; The BSCR employment &amp; labor law team are willing and able to assist you as you navigate your employment arbitration agreement development and implementation needs. Court Bostock Ruling Confirms Scope of Title VII Includes Protections for Homosexuals, Invalidating Prior Eighth Circuit Precedent Aug 2020Employment & Labor Law Blog<p>In <i>Horton v. Midwest Geriatric Mgmt., LLC</i>, Mark Horton filed a Title VII sex discrimination case against Midwest Geriatric Management, LLC (&ldquo;MGM&rdquo;) following withdrawal of an employment offer, after Midwest Geriatric Management became aware that Horton was gay and had a partner.</p> <p>Horton was the Vice President of Sales &amp; Marketing for Celtic Healthcare.&nbsp;He was recruited by a job search firm for the position of Vice President of Sales and Marketing for a company named Midwest Geriatric Management.&nbsp;After applying for the job, he received an offer of employment pending a background check and further confirmation of his educational history.&nbsp;Horton signed the job offer to work for Midwest Geriatric and resigned from his position at Celtic.</p> <p>Because one of his former colleges no longer existed (it had been sold to another university), the company retained to complete Horton&rsquo;s background check informed him that the background check would take four to six weeks to complete. Horton communicated this delay to all the parties involved including Midwest Geriatric CEO Judah Bienstock and his wife Faye, who was involved in the hiring process. &nbsp;None voiced any concern. In a subsequent email to Bienstock about the status of obtaining his educational records, Mark stated, <i>&ldquo;My partner has been on me about [my MBA] since he completed his PHD a while back.&rdquo;</i> A few days later, Mark received an email stating, &ldquo;<i>Mark&mdash;I regret to inform you that due to the incompletion of the background check of supportive documentation&mdash;we have to withdraw our offer letter for employment at MGM. We wish you much luck in your future endeavors. Judah and Faye.&rdquo;</i>&nbsp;Even after Mark obtained his college records and contacted MGM while the position was still vacant, Faye said, <i>&ldquo;At this time&mdash;we are considering other candidates.&rdquo; </i>&nbsp;</p> <p>Horton filed a Charge of Discrimination with the Equal Employment Opportunity Commission, alleging sex discrimination and religious discrimination under Title VII.&nbsp;After receiving his right-to-sue notice from the EEOC, Horton sued in the U.S. District Court for the Eastern District of Missouri.</p> <p>Horton&rsquo;s lawsuit alleged Midwest Geriatric unlawfully discriminated against him on the basis of sex when his offer of employment was withdrawn after learning he was homosexual.&nbsp;Specifically, Horton argued: 1) they treated him less favorably because of his sexual orientation, or based on his sex; 2) they treated him less favorably because of his association with a person of a particular sex, i.e. the same sex; and 3) they treated him less favorably on the basis of his nonconformity with sex stereotypes and MGM&rsquo;s preconceived definition of how males should behave.</p> <p>In granting Defendant&rsquo;s motion to dismiss, the District Court relied on the Eighth Circuit&rsquo;s 1989 holding in <i>Williamson v. A.G. Edwards &amp; Sons</i> that had concluded &ldquo;Title VII does not prohibit discrimination against homosexuals.&rdquo;&nbsp;<i>Williamson v. A.G. Edwards &amp; Sons, Inc.</i> 876 F.2d 69, 70 (8th Cir. 1989).&nbsp;The District Court further held that sexual orientation is not an explicitly protected characteristic under Title VII.&nbsp;The Court acknowledged numerous federal courts had recently held otherwise, but noted the Eighth Circuit had not changed its position on the issue, so they were bound by <i>Williamson</i>.&nbsp;</p> <p>Additionally, because Horton&rsquo;s claim of sexual stereotyping was admittedly based solely on his sexual orientation, the District Court concluded sexual stereotyping alone could not be the alleged gender non-conforming behavior giving rise to a Title VII&nbsp;claim in Horton&rsquo;s case, because &ldquo;[t]o hold otherwise would be contrary to well-settled law that Title VII does not prohibit discrimination on the basis of sexual orientation.&rdquo;</p> <p>Horton appealed to the Eighth Circuit, but the appeal was stayed pending the United States Supreme Court&rsquo;s consideration of the &ldquo;scope of Title VII&rsquo;s protections for homosexual and transgender persons,&rdquo; in <i>Bostock v. Clayton County</i>, and other related cases.&nbsp;In its <i>Bostock </i><a href=" ]">ruling</a>, the Supreme Court declared plainly that it &ldquo;defies&rdquo; Title VII for &ldquo;an employer to discriminate against employees for being homosexual or transgender,&rdquo; because to do so, it &ldquo;must intentionally discriminate against individual men and women in part because of sex.&rdquo;&nbsp;The Eighth Circuit therefore <a href=" ">reversed</a>, based on the <i>Bostock </i>decision, reasoning that because the Supreme Court has held sexual orientation to be a class protected under Title VII, the <i>Williamson</i> case relied upon by the Eastern District in dismissing Horton&rsquo;s claim, was no longer good law.&nbsp;The case was remanded to the district court for further proceedings in light of the <i>Bostock</i> holding.<br /> &nbsp;</p> <p><i>* Kameron Fleming, Summer Law Clerk in the St. Louis office of Baker Sterchi, assisted in the research and drafting of this post.&nbsp;Fleming is a&nbsp;rising 3L student at the Washington University St. Louis School of Law.</i></p>