Monthly Archives: October 2013

Working for Lady Gaga: It’s a Full-Time Job

towelsLast week, Lady Gaga settled an overtime lawsuit brought against her by a former assistant. The settlement is confidential (so far), but the complaint took an interesting approach. In most overtime cases, the employee claims to have worked a certain number of extra hours, such as two hours per day or ten hours per week. Or, the employee claims to have had to work through lunch, which adds up to half an hour per day for the length of the employee’s tenure.

According to the lawsuit, Gaga kept her assistant quite a bit busier than that. Her assistant, Jennifer O’Neill, requested overtime for every single hour of every single day she worked for Gaga. According to the complaint, O’Neill had to be available from “the earliest waking hour,” be “responsive to the slightest need throughout the day,” and address “spontaneous random matters in the middle of the night.”

How random and slight? Among O’Neill’s tasks were reconciling Gaga’s credit card statements, ensuring that she had a fresh towel immediately upon finishing her shower, and according to the Hollywood Reporter, sleeping in Gaga’s bed and being awakened throughout the night to change the CD.

The case settled after a judge refused to dismiss the lawsuit, finding that a jury would have to decide how many of those alleged “on call” hours were work for which O’Neill should have been compensated. According to CNN, the case was set to go to trial next week.

How Must an Employee Request a Religious Accommodation?

goatsTitle VII gives employees the right to reasonable workplace accommodations to allow them to practice their religious beliefs. Unless accommodating an employee’s religion would pose an undue hardship, an employer must allow an employee to attend religious rites or ceremonies, honor a Sabbath, wear religious garb, or otherwise follow the tenets of his or her faith. This might require changes to work schedules, uniform rules, or procedures for requesting for time off, but Congress has determined that religious practice is sufficiently important to impose these minor burdens on employers. (For more information — and answers to commonly asked questions — about religious discrimination and accommodation, check out our Religious Discrimination page.)

So far, so good. But an employer can grant an accommodation only if it knows about the employee’s need for one. That’s why the burden of requesting an accommodation in the first place — and providing enough information so the employer knows the request is religious in nature — falls on the employee. As is true of most employment laws that require employee notice, no “magic words” are required. An employee need not say explicitly, “I am requesting a religious accommodation pursuant to Title VII.” On the other hand, the employee has to provide enough information to let the employer know that (1) the employee needs an exception or change to the usual rules, and (2) that need arises from a religious belief.

An interesting case from the federal Court of Appeals for the Seventh Circuit shows how tricky this can get when the employee’s religious beliefs are not mainstream or known to the employer. An employee, Sikuru Adeyeye, asked for five weeks of unpaid leave to attend his father’s funeral ceremony in Nigeria. His employer, Heartland Sweeteners, said no. Adeyeye then asked for three weeks of unpaid leave along with a week of vacation he had already earned. He left to attend the funeral, and was fired upon his return for violating the company’s attendance policy.

Adeyeye sued, claiming that the company failed to grant him a religious accommodation. The company argued that it didn’t know his request for time off had a religious basis. The Appeals Court found in Adeyeye’s favor on the notice issue, finding that the language he used in his written requests for time off was enough to clue the company in. Here’s what the first note said:

I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rite[s] that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to [k]ill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children’s life. I will appreciate if this request is approved.

Adeyeye said his request was based on “custom and tradition,” not religion. Weighing heavily on the other side of the balance: ritual slaughter of goats! The Court found that the goats, possibility of spiritual death if the ritual was not followed, and mention of rites and ceremonies was sufficient to put the company on notice.

Hat tip: Triggering the Duty of Religious Accommodation, over on Workplace Prof blog, which compares this case to yet another controversy over Abercrombie & Fitch’s “Look Policy,” this time involving an applicant who was denied a job after she showed up for an interview wearing a headscarf.

 

Lost in the Congressional Debate: The Self-Employed and Obamacare

pillsIn case you haven’t heard (!), many members of Congress seem to believe that every single member of “the American People” stands vehemently opposed to the Affordable Care Act. Various Republican politicians have compared Obamacare to a disaster, a train wreck, and yes, slavery. But here’s an interesting dilemma for the GOP: The group with whom the Republicans want to identify so often — entrepreneurs and independent business people — will benefit significantly from the law.

According to a study on the Affordable Care Act and entrepreneurship conducted by several nonpartisan groups (including the Center on Health Insurance Reforms), Obamacare is expected to swell the ranks of the unemployed. The study predicts that more than 1.5 million people will go into business for themselves as a result of the law, a more than 10% increase. Why? Because they will no longer be stuck in jobs they would prefer to leave just to get health insurance.

There are legitimate debates as to whether the coverage offered through the new health care exchanges is truly affordable, and even the law’s most fervent supporters agree that the initial rollout of the online marketplaces has been a parade of technical glitches. However, no one can dispute that Obamacare makes it possible for many people to purchase health care who were previously priced out of the market or couldn’t even find a plan that would take them at any cost. Those who stayed in unsatisfying jobs to keep their benefits (a phenomenon known as “job lock”) will now be free to move on, purchase their own benefits on the exchange, and take the plunge to start their own businesses.

Employers who are planning to cut back on employee benefits might also see a lesson here. For companies that are planning to cut employee hours to less than 30 (to avoid having to provide benefits under Obamacare) or otherwise try to get around the law, there may well be an initial cost savings. But these strategies will also remove one of the strongest incentives for employees to stay at their jobs. And, the employees most likely to leave and start their own businesses are often the very employees the company would most like to keep: the self-motivated, self-directed, business-minded cohort.

 

 

California Law Affirms that Sexual Harassment Doesn’t Have to Be Sexy

In August, California amended its sexual harassment laws to add this sentence to the state’s Fair Employment and Housing Act:

“Sexually harassing conduct need not be motivated by sexual desire.”

The legislature was responding to a decision by a California appeals court in a same-sex harassment case. The plaintiff employee in that case, Patrick Kelley, alleged that his male supervisor called him a bitch and a punk, made crude comments about having sex with him, and laughed when another employee did the same. This behavior followed Kelley to other worksites after he asked to be transferred, as the story spread among his coworkers. The Court tossed Kelley’s claim because he couldn’t prove that his supervisor acted out of genuine sexual desire or interest. In other words, the case turned on whether Kelley’s supervisor actually, in his heart, wanted to have sex with Kelley (in ways he graphically described), or just said so in front of others in order to demean him.

If all sexual harassment cases turned on the question of sexual interest, you can imagine the problems of proof. How do you show that a harasser “really” felt desire toward his victim? Would the harasser’s sexual orientation be an issue in the case? Setting that aside, sexual interest shouldn’t matter. It’s just as illegal for a supervisor to make demeaning, sexist comments as to make unwanted sexual propositions (whether or not the harasser “genuinely” wanted to follow through on them). The reason why sexual harassment is illegal is that it limits job opportunities. When all is said and done, sexual harassment is about power, not desire.

In the context of opposite-sex harassment, there are certainly some ugly cases involving sexual come-ons, groping, and even assault. But some of the ugliest situations arise when women enter traditionally male fields. In these cases, there are no expressions of “desire” or “sexual interest.” Instead, women are threatened (with rape, assault, and more), endangered, and frightened. Their tools and vehicles are sabotaged; they are called horrible names; they are stranded without support. Although some courts had trouble seeing the harassment when it was so decidedly unsexy, most have now come around.

At least in opposite-sex cases. That the California case issued its decision in a same-sex case isn’t surprising. Courts have not known what to do with homophobic behavior on male-dominated worksites. Is it okay if none of the employees are actually gay? Or if the supervisor threatens to have sex with all the guys, not just those who are ridiculed in gendered ways? If there are no women present, is this behavior really “sex-based”? But the answer seems pretty simple. In this case, Kelley’s work environment was poisoned by a supervisor’s crude sexual comments and behavior. Those comments were sex-based, in that they were about Kelley’s masculinity and sexual orientation. The case shouldn’t have turned on whether the supervisor was sincere when he said he want to have sex with him.