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Friday, April 7, 2017

Seventh Circuit Rules that Sexual Orientation Discrimination is Prohibited by Title VII

On April 4, 2017, in Hively v. Ivy Tech Cmty. Coll. of Indiana, No. 15-1720, the Seventh Circuit en banc (all of the judges), on rehearing of a panel decision disallowing the plaintiff’s claim, became the first federal Court of Appeals to hold that discrimination based on sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964.  Title VII makes it unlawful for employers to discriminate on the basis of “race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a).  The ruling did not carve out sexual orientation as a separate protected class, but rather found that “sexual orientation” is encompassed within “sex” and is therefore already protected by federal law. 

In Hively, the plaintiff had applied six times for a full-time professor position at Ivy Tech and was denied a position each time, allegedly because she is a lesbian.  Hively filed a discrimination claim based on sexual orientation, which was dismissed by the district court because sexual orientation is not enumerated as a protected class in Title VII.  The Seventh Circuit reversed the lower court, holding that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” 

There has been a long debate over sexual orientation and related claims under Title VII, stemming in large part from a 1989 U.S. Supreme Court decision: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Court held that an accountant alleging that she was treated differently in partnership considerations based on “sex-stereotyping” – because she did not act, dress, or talk “femininely” enough – could have a claim under Title VII.  Since Price Waterhouse, lower courts have struggled to delineate between claims of discrimination based on sex-stereotyping, which is prohibited by Title VII, and those based on sexual orientation, which most Circuit Courts (including the Eighth Circuit, in which Missouri sits) have held is not prohibited by the current law.  But as the court in Hively pointed out, that distinction is sometimes very difficult to draw, because homosexuality is often “the ultimate case of failure to conform” to sex stereotypes, in that the stereotype is men partnering with women and vice versa. 

For employers in Illinois and other states in the Seventh Circuit, Hively creates binding precedent and must be followed (unless it is reversed).  For employers elsewhere, this case may signal the beginning of a trend in favor of finding Title VII protection for LGBT employees, especially after the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, 135 S.Ct. 2584 (2015).  On the other hand, Congress has consistently heard and failed to adopt an amendment to Title VII adding sexual orientation as a protected class, so this decision might spur it to act.  Some states and cities already have laws or ordinances providing that sexual orientation is a protected class. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.


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Thursday, March 23, 2017

U.S. Supreme Court Clarifies School Districts' Obligation to Provide Free Appropriate Public Education

The United States Supreme Court handed down its decision on March 22, 2017 in Endrew F. v. Douglas County School District, No. 15-827 (3/22/2017), regarding the standard for determining whether a child has been offered a Free Appropriate Public Education ("FAPE").

In the unanimous (8-0) decision, the Court held that each Individualized Education Program (“IEP”) must be “reasonable” and must be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”  This holding clarifies, but does not overrule, the standard previously adopted in Board of Ed. of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), that the IEP must be “reasonably calculated to enable the child to receive educational benefits.” The school in Endrew had argued that Rowley referred to “some educational benefit” and therefore that the benefits provided must be “merely more than de minimis”; however, the Supreme Court expressly rejected this much-lower standard.

The Endrew Court made clear that there is no bright-line test.  For example, a child who is making passing marks and advancing from grade to grade is not necessarily being given a FAPE.  Similarly, a child who is not making passing marks and advancing from grade to grade is not necessarily being denied a FAPE, because that is not a reasonable expectation for every child. Instead, the IEP must be “appropriately ambitious in light of [the child’s] circumstances.”

Finally, the Court stated that the fact that its decision does not announce a bright-line rule is not an “invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.”

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Robert A. Useted and Erin M. Leach.


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Friday, March 10, 2017

City of St. Louis Minimum Wage Ordinance

On February 28, 2017, the Missouri Supreme Court reinstated St. Louis City Ordinance 70078, available here, which requires covered employers to pay covered employees a minimum wage of $10/hour in 2017 and $11/hour starting January 1, 2018, for each hour worked while the employee is physically present in the City of St. Louis.  Employers governed by the ordinance include all businesses whose annual gross revenue is $500,000 or more and who have employed more than fifteen employees during each calendar week of the current and previous calendar years.  Employees covered by the ordinance include all employees who work at least twenty hours per year within City limits (with some exceptions, including seasonal educational camp workers and work-study students, among others).   Ordinance 70078 also mandates that the minimum wage will increase to reflect inflation each January first beginning in 2019.

In October 2015, this ordinance had previously been halted, by a trial court injunction as being in conflict with the state minimum wage law (The state minimum wage, per R.S.Mo. § 290.502, is currently $7.70/hour.)  However, the Missouri Supreme Court disagreed with the trial court, and in a unanimous decision, held that Ordinance 70078 is not in conflict with or preempted by state law and that the City was validly acting within its constitutional police powers in enacting the ordinance.  The Missouri Supreme Court held that Missouri’s minimum wage law sets “a floor below which an employee cannot be paid,” but does not set a maximum wage or prohibit cities from expanding the protection of the minimum wage law.

The decision appears to make the minimum wage effective immediately, though Mayor Slay has promised a “short, but reasonable, grace period” for businesses to comply.  On March 8, Mayor Slay also tweeted that “no action to enforce the minimum wage may be taken until . . . the [lower] court lifts its injunction.”  This statement seems to indicate that employers should prepare to comply with the new minimum wage now.  (The City has also set up an update page on compliance/enforcement, as well as an email address for questions.  Details can be found here.)  Compliance by businesses requires not only payment of the new minimum wage, but also: (a) placing posters in all workplaces in the City which give notice to employees of the current minimum wage and employees’ rights under the ordinance, and (b) including similar notice with the “first paycheck subject to [the] ordinance” to every employee covered by the new wage, which appears to also apply to any employer who has covered employees working in the City.

The Missouri legislature tried to block Ordinance 70078 when it was first passed in 2015, by enacting R.S.Mo. § 285.055, which prohibits political subdivisions from establishing a minimum wage exceeding the rate set by state statute.  The Missouri Supreme Court found R.S.Mo. § 285.055.2 was ineffective at voiding this particular St. Louis City ordinance, but did not invalidate the statute.  Given the legislature’s previous opposition to Ordinance 70078 as well as the disapproval of many businesses and interest groups, further legislative action (including a bill passed by the House and read in the Senate on March 9, 2017) and/or litigation to attempt to delay, halt, or eliminate Ordinance 70078 would not be surprising. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Charles S. Elbert and Erin M. Leach.


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Friday, March 10, 2017

City of St. Louis Reproductive Health Decision Ordinance

On February 13, 2017, the attached City of St. Louis Ordinance 70459 became effective.  Among other things, it prohibits employers (with six or more employees) in the City of St. Louis from discriminating or taking any adverse employment action against any applicant or employee based on their pregnancy, condition related to pregnancy or the “reproductive health decisions” of that individual or that individual’s dependent(s).  A “reproductive health decision” is defined by the ordinance as “any decision related to the use or intended use of a particular drug, device, or medical service related to reproductive health” and includes contraceptives, fertility treatments and initiation or termination of a pregnancy.  This ordinance also prevents pre-employment inquiries based on these matters as well as any statements by employers regarding their preferences on these issues.

The City of St. Louis Civil Rights Enforcement Agency has authority to enforce the ordinance according to the terms and provisions of Ordinance 67119 (the general civil rights ordinance).

Though this ordinance does not apply to those employers that are not in the City of St. Louis, other state and federal law, including the Missouri Human Rights Act, the Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964, already prohibit discrimination based on sex, pregnancy, and conditions related to pregnancy.  Even the “reproductive health decisions” explicitly covered by Ordinance 70459 may be protected under existing law, as they are decisions directly tied to sex and/or pregnancy.  

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Charles S. Elbert and Erin M. Leach.


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Thursday, February 23, 2017

Trump Administration Withdraws Guidance for Public Schools on Transgender Student Issues, Including Restroom Access

Late on February 22, 2017, the Departments of Education and Justice (“Departments”) published a Dear Colleague Letter (“DCL”) withdrawing guidance which had previously been handed down by the Obama administration regarding public schools' treatment of transgender students.  The previous guidance came in the form of two other DCLs, dated January 7, 2015 and May 13, 2016, which together contained detailed directives for schools about transgender student issues.  

The most controversial piece of the Obama-era DCLs had attempted to condition receipt of federal funds on school districts allowing transgender students to use the restroom corresponding with their gender identity rather than with their sex assigned at birth.  That interpretation of the law has been the subject of several lawsuits in the last year, including G.G. v. Gloucester County School Board, in which the 4th Circuit held that according to Title IX and the federal government’s interpretation contained in the DCLs, a transgender male high school student (Gavin Grimm) was likely to prevail in his request to use the boys’ restroom at school.  The 4th Circuit therefore entered a preliminary injunction requiring the Gloucester district to allow Gavin to use the male restroom.  That decision was stayed by the United States Supreme Court last fall.

In the fall of 2016, another federal court reached the opposite conclusion in Texas v. US, and held that the 2016 DCL appeared to be an improper exercise of executive authority which had not gone through the proper process for making a new rule.  The court in Texas v. US issued an injunction nationwide, prohibiting the federal government from enforcing their DCLs as to restroom access.  Several other lawsuits are currently pending around the country with respect to the restroom issue in schools.   

G.G. is set to be heard by the Supreme Court on March 28th and Texas v. US is on appeal to the 5th Circuit.  However, with the withdrawal, these two cases lose much of their import, because parties in each were expressly relying on the 2015 and/or 2016 DCLs.  Either or both cases could go away on procedural grounds.  However, others of the pending transgender cases advanced other arguments to support restroom access, including Equal Protection under the U.S. and state constitutions.  That argument has not been affected by the Trump administration’s DCL, and so the issue could reach the Supreme Court again as those cases work their way through the judicial system.

Other lesser known provisions of the 2015 and 2016 DCLs directed schools on topics such as identification documents, names, pronouns, sex-segregated activities, privacy of transgender status, and discrimination/harassment based on transgender status.

The February 22nd DCL is only two pages long (you can read the whole document here) and does not address the above issues with any detail.  Instead, it simply withdraws the earlier guidance, stating that the Departments will no longer rely on any of the views expressed in the previous DCLs.  The stated purpose of the withdrawal is for the Departments to “further and more completely consider the legal issues involved” and also that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”   

This new DCL does make clear that the withdrawal does not take away transgender students’ protection from discrimination, bullying, or harassment, and promises that the Office for Civil Rights will continue to hear all claims of discrimination.  However, aside from that guaranteed protection, the withdrawal of previous guidance will likely create uncertainty for school administrators in the states which do not have state law on the topic (Missouri does not currently have relevant state law, though a bill is pending in the General Assembly which could resolve the restroom issue, at least temporarily). 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school law attorneys if you have any questions regarding how to structure or modify your school or district's policies and/or practices given this change in the legal landscape.

This update was prepared by Robert A. Useted and Erin M. Leach.


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Tuesday, February 7, 2017

Missouri Becomes Nation’s 28th Right to Work State

In a ceremony in Springfield, Missouri on February 6, 2017, Missouri Governor Eric Greitens signed Senate Bill 19 into law, making Missouri the 28th “Right to Work” state in the nation.  The law, which will be effective August 28, 2017 (unless delayed or rejected by referendum) and will be found at R.S.Mo. § 290.590, states in relevant part:

No person shall be required as a condition . . . of employment to . . . become a member of a labor organization; pay any dues, fees, assessments or other similar charges . . . to a labor organization; or . . . pay to any charity or other third party any amount equivalent to . . . any dues, fees, assessments,or other charges required of members of a labor organization.

Before yesterday, even employees who were not members of a union could be required, under some collective bargaining agreements, to pay union dues or agency fees (the portion of dues that goes to internal advocacy and bargaining rather than to political endeavors), based on the rationale that unions are federally required to represent all employees.  Missouri’s new law means that labor organizations can no longer make such agreements.  Supporters of the law say that it will make Missouri more competitive and will attract business by reducing employers’ costs, while labor organizations worry that their ability to collectively bargain for workers will be undercut if some employees choose not to contribute dues or agency fees to their organizations.  History suggests a basis for the labor organizations’ concerns, particularly because union membership has been dropping in recent years.  Currently, the U.S. Bureau of Labor Statistics estimates that only about 6.4% of private sector employees – and  a total of 10.7% of private and public sector employees – are union members.     

Under the new law, which appears to apply to both public and private sector employers, any labor or employment agreement that violates the above provision will be immediately null and void.  Violation of the Right to Work law is a Class C Misdemeanor and the law mandates that local prosecutors and the Attorney General investigate and prosecute all such violations.  Additionally, aggrieved employees will be able to seek injunctive relief and money damages, including attorneys’ fees, for violations of the law. 

Missouri’s Right to Work law does not apply to several classes of employees, most notably federal employees, employees in exclusive federal enclaves, and workers in the railroad and airline industries.  Furthermore, the law does not go into effect until August 28, 2017, and explicitly grandfathers all labor agreements entered into before that effective date.  However, once those grandfathered agreements are renewed, extended, amended, or modified after the effective date, then the Right to Work statute will apply. 

The full text of the Right to Work law can be viewed here.  The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions or if you would like to discuss the impact of this law on your organization.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.


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Wednesday, November 23, 2016

Federal Judge Blocks Implementation of DOL’s New Overtime Rule

On November 22, 2016, a federal judge in Texas issued a nationwide injunction barring implementation of the United States Department of Labor’s new overtime rule under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), which was to become effective on December 1, 2016. 

The new rule, if it ever goes into effect, would represent the most significant modification of the FLSA’s overtime regulations in over twenty years.  Prior to the new rule, the longstanding “white-collar” overtime exemptions required that executive, administrative, and professional employees perform certain duties and be paid a salary of at least $23,660 annually (or $455 per workweek) in order to be exempt from overtime.  The new rule made no change to the duties test, but would have doubled the minimum annual salary level to $47,476.  Under the new rule, the minimum salary also would have automatically adjusted every three years to track a federal wage index. 

Yesterday’s injunction was issued by a federal district court judge in the Eastern District of Texas in a consolidated lawsuit, Nevada v. U.S. Department of Labor, No. 4:16-CV-00731 (E.D. Tex. Nov. 22, 2016), which was brought by 21 states and 50 business organizations.  The court held that the new rule is unlawful because it “exceeds [the Department of Labor’s] authority and ignores Congress’s intent” in that it raises the minimum salary level to such an extent that it “supplants the duties test.”  The court noted in support of its decision that under the new rule 4.2 million workers currently ineligible for overtime would automatically become eligible simply due to the new threshold salary.  The court expressly held that the injunction against implementation of the new rule extends nationwide.

The court’s ruling presumably will be appealed to the U.S. Court of Appeals for the Fifth Circuit.  It is unknown how long such an appeal will take or whether the appellate court (or the United States Supreme Court) will affirm or reverse the district court’s decision.  In any event, the injunction will remain in effect until such time as it is reversed, which almost certainly will not occur before December 1, when the new overtime rule was to go into effect.  Adding even more uncertainty is the recent election of a new president, which very well may result in the modification or withdrawal of the rule, even if it were ultimately held by the courts to be lawful in its current form.

In light of the uncertainty regarding whether and when the new rule will go into effect, employers now face difficult questions about whether to restructure salaries, modify job duties, hire part-time employees or take other steps that would be important if the new rule were to go into effect.  Employers who have not yet implemented changes are no longer legally required to do so.  Employers who have already announced changes in anticipation of the new rule now must decide whether such changes are still warranted, whether because legally-binding promises have been made to employees or simply in the interest of preserving employee morale.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions or if you would like to discuss how to proceed under these circumstances.

This update was prepared by David A. Castleman and Erin M. Leach.


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Thursday, November 3, 2016

Hearings For School District Employees on Administrative Leave

On September 14, 2016, the Missouri legislature overrode the governor’s veto and passed House Bill No. 1432, a copy of which you can find here.  Under that bill, which was effective October 14, a school district employee, other than a probationary teacher, who is put on paid administrative leave must be given a hearing within sixty (60) days from the date the employee was placed on such leave if the employee is not removed from administrative leave within thirty (30) days after being placed on such leave.  Although the hearing can be continued for good cause, it cannot be continued for more than 180 days from leave commencement.  Further, within thirty (30) days of placing an employee on administrative leave any school district must inform the Board of Education of the reason or reason(s) for the employee’s placement on administrative leave.  Finally, the District must provide a writing to the employee the “general reason or reasons” for the leave.

These new requirements do not apply under circumstances where the employee’s misconduct is the subject of certain law enforcement investigations.

The practical effect of this statute is that school districts will be required to act quickly in connection with any investigation and decision after an employee (other than a probationary teacher) is placed on administrative leave.  Therefore, Districts may want to fully develop the facts before placing an employee on administrative leave if the employee is not creating a safety or health issue that requires immediate action.  Districts must carefully draft the “general reason or reasons” why the employee is placed on administrative leave because these reasons may bind the District in subsequent, such as employment discrimination, proceedings.  The statute likely will prevent Districts and the employee from agreeing to a long leave in lieu of a hearing on termination.  Therefore, Districts likely should promptly file charges to terminate permanent contracts and set the hearing within sixty (60) days of the date that the permanent teacher is placed on administrative leave.  In addition, employees who may not otherwise be entitled to hearings, such as classified employees, now are entitled to hearings under this statute.

Because the statute provides that a hearing “shall” occur, the parties may not be able to waive the hearing.  However, the statute does not describe the nature, extent or procedures of the hearing.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.


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Thursday, July 28, 2016

New OSHA Rule Impacts Post-Injury Drug Testing Policies

The Occupational and Safety Administration’s (“OSHA”) new electronic reporting requirements impact certain employers’ post-accident drug testing policies that require an automatic drug test following a work related injury.  OSHA adopted the rule in May 2016, (effective August 10, 2016) in order to improve tracking of workplace injuries and illnesses, by requiring certain workplaces to submit specified information electronically.  See 29 CFR 1904.  The workplaces governed by the new rule include all establishments with 250 or more employees that were already subject to OSHA’s record-keeping requirements as well as establishments in certain designated industries with 20 or more employees.  Id. at Sections 1904.41(a)(1) & (a)(2).   

Though the purpose of the rule is administrative, the commentary to the rule also states that “. . . blanket post-injury drug testing policies deter proper reporting.” Cmt. to Section 1904.35(b)(1)(iv).  Specifically, OSHA states that its rule prohibits employers from “ . . . using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  Id.  Instead, OSHA suggests that employers should use post-injury drug testing only when there is “. . . a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” unless the drug testing is required by federal or state law or regulation.  Id.  According to OSHA, bee stings, repetitive strain injuries, injuries caused by a lack of machine guarding or by a machine or tool malfunction are examples of work accidents in which employee drug use likely was not a factor.  Therefore, drug testing after such an accident/injury likely would violate OSHA’s rule.  Unlike some other retaliation prohibited by Section 11(c) of the Occupational Safety and Health Act, OSHA can enforce this prohibition without an employee complaint.

Many employers have policies that require an automatic post-accident drug test if the accident results in an injury.  Unless and until the OSHA rule is determined to be unlawful, we believe that employers subject to the rule likely should modify any automatic post-accident testing policy (except those applicable to Department of Transportation testing or other federal or state requirement) to provide that a post-accident test will be administered when there is a reasonable possibility that employee drug use contributed to the injury.  Please let us know if you would like us to determine whether your company (establishment) is subject to this rule and if so, whether you would like us to analyze or modify your company’s policy.  

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Erin M. Leach.


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Friday, June 3, 2016

Department of Labor’s Final FLSA Rule re: White-Collar Overtime Exemptions

On May 18, 2016, The United States Department of Labor released its final revised overtime rule under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”).  This rule represents the most significant modification of the FLSA’s overtime regulations in over twenty years. 

Prior to the rule, the longstanding overtime exemption requirements were: (1) employee is paid on a salary basis rather than an hourly wage basis; (2) employee is paid at a salary level of at least $23,660 annually (or $455 per workweek); and (3) employee’s duties meet the elements of a professional, administrative, executive, or outside sales (collectively referred to as “white-collar”) exemption.  Requirements (1) and (3) remain unchanged by the rule.  However the rule significantly modifies requirement (2) by raising the threshold salary level to $47,476 annually (or $913 per workweek).  Consequently, “white-collar” employees with a salary less than that amount will no longer be exempt, and therefore will need to record their time and be paid overtime for working more than 40 hours in a workweek.  This changed salary level has the potential to affect the wages of over four million U.S. workers in its first year of implementation. 

The rule goes into effect December 1, 2016, and applies to all employers covered by the FLSA.  In addition, the new salary threshold is not static; it is set to adjust every three years, beginning January 1, 2020, and tracking the 40th percentile of wages earned by full-time salaried workers in the lowest wage census region in the United States.  Other modifications made by the final rule include that “highly compensated” employees must be paid an annual salary of $134,004 (previously $100,000) in order to meet that exemption, and that employers will be allowed to include nondiscretionary bonuses and incentive payments, including commissions, in satisfying a portion of the minimum salary requirements for both “white-collar” and “highly compensated” employees. 

As a result of this final rule, employers should undertake a comprehensive and careful audit of their current wage and salary structures to ensure that they make appropriate adjustments for salaried employees classified as exempt currently earning between $23,660 and $47,476.  Based on each employer’s needs and staffing practices, there are several potential ways in which compliance with the new rule can be achieved, including: raising salaries, decreasing salaries to account for anticipated overtime, reclassifying employees, limiting or requiring pre-approval for overtime hours, redistributing workloads, using more part-time employees, using outside vendors to perform certain functions, and restructuring salaries to include bonuses/incentive pay. The enactment of this major change might also signal that it is a good time for employers to reconsider and update all of their exempt/nonexempt classifications, particularly with regard to jobs that have changed in the last 20+ years.  And, because the salary threshold level is set to adjust every three years going forward, employers need to continually review the above possibilities and consider their application to each employer’s particular workforce.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, Kevin A. Sullivan, and Erin M. Leach.


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Thursday, December 10, 2015

Missouri Supreme Court Expands Admissibility of “Me Too” Evidence in Age Discrimination Cases

On September 22, 2015, the Missouri Supreme Court, in a 5-2 decision, reversed a jury verdict in favor of the Kansas City Chiefs in a Missouri Human Rights Act (“MHRA”) age discrimination case brought by a former employee on the ground that the trial court improperly excluded evidence from numerous other older employees relating to the cessation of their jobs.  Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107 (Mo. banc 2015).  Plaintiff, who was 61, was terminated for poor performance and insubordination and was replaced by a 37-year-old employee.  At trial, plaintiff had evidence of several possible age-related statements made by Chiefs’ management, and his theory was that the Chiefs instituted a policy of terminating older workers and replacing them with younger workers.

The trial court had excluded from evidence the testimony of 17 former employees, who were going to testify about the termination of their employment, replacement by younger workers, and their claims against the Chiefs.  The trial court excluded this evidence on two grounds:  (1) plaintiff alleged only one act of discrimination, not a pattern and practice (systemic and repeated discriminatory conduct), and therefore the testimony was irrelevant to the claim; and (2) these former employees were not similarly-situated to plaintiff, meaning they did not have the same supervisor, same decisionmaker, or similar job type.  The Chiefs prevailed at a jury trial, and plaintiff appealed.

The Missouri Supreme Court reversed the jury verdict and remanded the case for retrial, holding that the trial court abused its discretion in excluding the circumstantial evidence from the other employees allegedly terminated because of their age.  The court held that this type of “me too” evidence of other acts involving other employees was not limited to a pattern and practice claim and did not require a plaintiff to show that the other employees were similarly-situated.  The Supreme Court also ruled that such evidence could come in regardless of whether the same decisionmaker was involved in the termination decisions.  The Court reasoned that a plaintiff who alleges or has a theory of a top-down strategy to replace older workers can offer this “me too” evidence and that the trial court must do an individualized, fact-based analysis to determine its admissibility.

The implications for employers facing MHRA claims is that plaintiffs probably will seek (and likely obtain) in discovery information relating to other claims of discrimination or terminations involving other employees in the same protected class (e.g., race, age, gender or disability) on an organization-wide basis.  Practically, this will likely make discovery more burdensome and expensive.  In addition, at trial, there is the risk that testimony from another employee, who might be in a completely different department with a completely different employment history, could be admitted into evidence, which means that disgruntled former employees could strengthen their cases by testifying in each other’s cases.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and Kevin A. Sullivan.


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