• Here’s the tale of  two cases with four lessons about Title VII and the Equal Pay Act when it comes to claims that an employer (in this case, Dollar Tree Stores) pays employees (in this case, Dollar Tree Store Managers) less because of their gender.  As we’ve said previously, claims for pay discrimination can be brought under both laws. 

    The first case was filed in 2008 in federal court in Alabama by Cynthia Ann Collins and Beryl Dauzat against Dollar Tree alleging that the company violated the Equal Pay Act by paying them and other female Store Managers less compensation than male Store Managers doing the same work.  In 2009, the court certified an opt-in collective action under Section 216(b) of the Fair Labor Standards Act (or, the “FLSA,” of which the Equal Pay Act is a part), allowing all women who were classified as Store Managers for Dollar Tree between 2006 and 2009 to join the lawsuit.  Under the court’s order, notice of the lawsuit was sent to all Dollar Tree Store Managers employed by the company between 2006 and 2009.  To join the lawsuit, a woman would have to complete and sign a form and send it to the court no later than the deadline expressly consenting to become a party to the lawsuit and authorizing the named plaintiffs and their counsel to act as her agents in prosecuting her Equal Pay Act claims against Dollar Tree.  About 350 women joined the lawsuit.

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  • Perhaps the best ongoing show in the Washington area -- outside of Capitol Steps -- is the drama surrounding the Metropolitan Washington Airports Authority's governing board.  We wrote earlier about how MWAA's board was in the unique position of funding the legal costs of a board member, Dennis Martire, to fight his own removal from the board, because the story illustrates some important principles about how indemnification clauses between companies or organizations and executives can work.  Today, the Washington Post has reported that Mr. Martire is returning to the board (at least temporarily), thus putting an end to the litigation over his seat.  The Post also has an excellent article on a new addition to the agency: an ethics and accountability adviser sent to it by U.S. Transportation Secretary Ray LaHood. 

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  • From The “If You Can’t Say Something Nice” Department

    | Zuckerman Spaeder Team

    It’s very likely that your grandmother, an aunt or uncle, or some other wise and guiding figure in your life taught you the maxim we started in our headline: If you can’t say something nice, don’t say anything at all. 

    That’s a saying that captures a theme that comes out of many of our posts here on Suits-by-Suits.  It’s not just a decent piece of advice for life, but in business relationships as well. 

    Of course, there are times when you can’t follow it, and have to say something.  This is especially true when key employees leave a company, and the company is compelled to explain the departures.  But as genetic-analysis company Sequenom learned last Thursday in a ruling from a California appellate court, if you’re going to say something that’s not nice about a former employee, then follow another rule that we lawyers are especially fond of: get your agreement with the former employee in writing before you say anything about him.  Or, you can face long and protracted litigation over who did and said what. 

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  • The Inbox - Sept. 14, 2012

    | Zuckerman Spaeder Team

    This week in suits by suits:

    • On Tuesday, the U.S. Court of Appeals for the First Circuit heard oral argument in the case brought by Starbucks baristas alleging that the company violated the Massachusetts Tip Law by requiring the baristas to share their tips with shift supervisors .  We reported on this case earlier and will be on the lookout for the First Circuit’s decision.  The key question in the case – whether or not Starbucks shift supervisors have “managerial responsibility” – was argued to the court early on Tuesday.
    • The IRS awarded a record $104 million to former UBS employee and whistleblower Bradley Birkenfeld, who had previously been convicted of tax fraud for advising UBS clients to avoid paying income taxes.  Birkenfeld's testimony disclosed how UBS was offshoring client assets to evade U.S. income tax; as a result, UBS agreed to pay $780 million in criminal fines and release data for nearly 5,000 accounts.
    • Author and playwright David Macaray has written a provocative article for the Huffington Post entitled "The Golden Parachute is Un-American" (and, he also argues, "curious," "bizarre," and "con jobs").
    Read more
  • This isn’t a political blog; although the lawyers here at Suits by Suits certainly have political opinions (and often strong ones at that!), we’re more of a roll-up-your-sleeves-and-get-things-done bunch.  We want to help high-level employees and their employers be aware of the potential pitfalls that exist in the workplace and to rely on our experience as litigators when something does go wrong.

    But sometimes those pitfalls are red or blue; sometimes employers (Chick-Fil-A, anyone?), or high-profile employees get into trouble precisely because they’ve made their political opinions public. 

    Eleven years ago today – and one day after the 9/11 attacks on the World Trade Center and the Pentagon – then-University of Colorado Professor Ward Churchill published an essay entitled “Some People Push Back:  On the Justice of Roosting Chickens.”  

    Through some strange circumstances (which we discuss below), that 9/12 essay sparked controversy nearly three and a half years later, after which, Prof. Churchill alleges, he was wrongfully terminated by the University of Colorado in retaliation for the opinions he expressed.  Although he won at trial, the jury verdict was set aside by the trial court judge on a motion for judgment as a matter of law; on Monday, that ruling was upheld by the Colorado Supreme Court.  Professor Churchill has vowed to appeal to the U.S. Supreme Court.  If and when he does – and if the Supreme Court grants certiorari – we’ll continue to cover this case.

    Although Professor Churchill’s 9/12 article is unusual, we know that individuals – whether speaking for themselves or on behalf of their employer – are going to speak out on the issues that matter most to them, particularly in an election year, just as Professor Churchill did on the day after 9/11.  Is there anything we can learn from those 9/12ers?

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  • Two quick news notes from the broader employment law world: Governor Jerry Brown of California has signed into law a bill that creates a higher bar for employers that would move employees wearing clothing or hairstyles based on religious beliefs – such as turbans or hijabs – out of public workspaces and into back rooms.  The new law will require employers to show an undue hardship, essentially a particular difficulty or expense, to accommodate those employees.   It's clearly a response to a lawsuit involving this exact issue and Disneyland --  which colleague Andrew Torrez covered here

    And from the New York Times Magazine comes this great article with the fitting headline “How Not To Fire A College President,” about the attempted ouster of University of Virginia President Theresa Sullivan.  Perhaps the key takeaway from this cavalier move: when planning to remove a liked and respected C-level executive, try to get leaders of affected constituencies within the organization to buy in before the ouster

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  • Section 922 of the Dodd-Frank Act of 2010 has received a lot of attention in legal circles.  That provision established a whistleblower program under which a person who voluntarily provides the Securities & Exchange Commission with information about an employer’s wrongdoing can receive an award.    To help strengthen the program, Section 922 also protects whistleblowers from retaliation for disclosing information that they report directly to the SEC. 

    On August 21, the SEC announced its first payment of a whistleblower award under the new program.  

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  • The Inbox

    | Zuckerman Spaeder Team

    This week's latest in Suits by Suits:

    • A trombonist and former leader of the Glenn Miller Orchestra is in the mood for some litigation.  Gary Tole, who is white, has sued the orchestra’s production company claiming that he was fired in retaliation for him promoting and hiring African Americans and Hispanics.  Among other things, Tole alleges that the president of the company questioned his hiring of two African American musicians, saying at the time to Tole that “[T]his is the Glenn Miller Orchestra, not the Count Basie Orchestra,” or words to that effect.
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  • This story from law.com starts with a truism: “Litigation and anger can be a dangerous mix.”  The story explains why: it’s about how Eaton Corporation , which makes devices that manage energy, has spent eight years suing six of its engineers. Along the way, according to the story, Eaton and its counsel engaged in discovery violations, incurred sanctions, and may have hired an outside counsel who engaged in ex-parte (one-side-only) communications with a judge hearing the case.  In addition to damaging its reputation, the casualty list includes two outside law firms that were terminated and two in-house lawyers who lost their jobs.   The saga continues for Eaton: while one part of its suit against the engineers is still active, the engineers (who have had criminal charges against them dismissed), still have a counterclaim against the company, and shareholders have filed a suit against the company’s directors and officers, alleging they “bungled the case."

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  • The Lilly Ledbetter Fair Pay Act Basics

    | Zuckerman Spaeder Team

    When we promised yesterday that we would have more on the Lilly Ledbetter Fair Pay Act of 2009 later this week, we hadn’t realized that Ms. Ledbetter would be speaking to the Democratic National Convention about it last night.  As Ms. Ledbetter reminded the crowd last night, the law named after her was the first bill that President Obama signed into law

    In a nutshell, the Ledbetter Act was Congress’s response to the U.S. Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., Inc., that Ms. Ledbetter, a nearly 20-year employee of Goodyear, did not timely file an EEOC charge against Goodyear alleging that, in violation of Title VII, Goodyear paid her less because of her gender.

    Read more

As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

Contributing Editors
John J. Connolly

John J. Connolly
Partner
Email | +1 410.949.1149


Man

Andrew N. Goldfarb
Partner
Email | +1 202.778.1822


Sara Alpert Lawson_listing

Sara Alpert Lawson
Partner
Email | +1 410.949.1181


Nicholas DiCarlo

Nicholas M. DiCarlo
Associate
Email | +1 202.778.1835


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