Whacky Employment Claims: Who’s Whackier? Management or the Employee?
Employment Defense
by Nicole Kamm
818.907.3235
As employment defense attorneys, we see many strange situations arise in the workplace.
The question is, how prepared are you as an employer to handle the wackiness that may potentially arise when your employees make bizarre requests, do odd things, or intentionally violate company rules? And what if those oddball employees happen to be your managers responding to perfectly legitimate claims…?
It’s time to illustrate with another Whacky Employee Claims blog. We hope you will find the following employment situations educational, if not entertaining.
#5: Milking Punctuation Errors for All They’re Worth
Seventy-five milk truck drivers in Maine may be getting a $10 million pay day. Three of those drivers filed a class action lawsuit in 2014, claiming Oakhurst Dairy failed to pay them four years of overtime wages.
The problem arose not from a miswritten company policy or employment agreement, but from a state law (known as Exemption F) identifying which employees were exempt from overtime:
“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . .”
One more comma after “packing for shipment” would have distinguished packing and distributing as separate activities. But as the law is written without the serial or “Oxford comma” as it is sometimes known, the Plaintiffs were able to argue their duties fell outside Maine’s exemption law and they were entitled to overtime pay.
A trial court focused on the spirit of the law, and awarded partial summary judgment to the employer. But an Appellate Court disagreed, stating:
Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers . . . the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.
Employer Tip: You don’t have much say in how state and federal laws are written, but when something seems unclear or ambiguous, consult counsel. Additionally, be ultra-careful in how your company policies and employment agreements are written and stay apprised of frequent changes in employment laws.
#4: Simply Not Suited
Jessica Zelinske was an ad accountant at Charter Communications in Minnesota. She was also very attractive, and when she won a modeling gig to pose for Playboy in a 2011 “Hot Housewives” issue, Zelinske contends she got the “o.k.” from her boss.
Zelinske alleged her supervisor assured her she would not be fired if she posed nude, but once the magazine hit sales racks, she received a “Corrective Action Report” notifying her of her immediate termination. The company informed her: “You have violated Charter’s professional conduct policy by making the personal choice to pose nude in a well-known publication.”
Zelinske sought $150,000 for emotional distress, compensatory damages and legal expenses.
Employer Tip: Management should be familiar with the implications of all company policies to avoid making promises to employees they can’t keep.
#3: The Importance of Being Earnest (in Record-Keeping)
John Sederquist and Brenda White sued employer Steven Miller for unpaid overtime. This bothered Miller immensely because a.) He was pretty sure he paid all of his workers all monies owed on time, and b.) He couldn’t remember ever hiring White. So he did some digging.
Some of his other employees knew White, but no one ever remembered hiring her or actually working with her. But she did appear on his payroll for several months a few years before she jointly filed the lawsuit. For those several months, she was paid over $21,000 for work she never did. Suing for unpaid overtime was just salt in the wage and hour wound.
As it turned out, White and Sederquist were romantically involved. At the time of White’s supposed employment, a coordinator who is currently serving 20 years’ probation for thievery was handling Miller’s payroll. Miller decided to litigate, White cracked under pressure during deposition, and both sides dropped the lawsuit.
Employer Tip: If possible, take steps to enforce some checks and balances when it comes to handling payroll. While litigation can be costly, pursuing a case all the way is sometimes the way to go.
#2: “I Dreamed a Dream” (of not being harassed for my weight)
Laura Ziv filed a $6 million lawsuit against her boss and perfumer employer, alleging verbal assaults regarding her looks, and in particular, her weight. Ziv claims her supervisor compared her to Britain’s Got Talent star Susan Boyle, and sometimes called her “Fatty” in front of coworkers.
Additionally, Ziv claims her supervisor wanted her to develop a competing perfume brand with him, while on company time. When she refused a second time, her supervisor removed her from the company’s biggest account and took away a promised bonus. Ziv took a medical leave for high blood pressure and was threatened with termination. She claimed she suffered a brain hemorrhage due to stress.
Employer Tip: Comments regarding an employee’s weight or appearance are generally inappropriate, and could potentially lead to hostile work environment claims. Ensure entire staff knows they may report such incidents to people other than their direct supervisors, and that inappropriate remarks will not be tolerated.
#1: It’s a Tough Sell
Think you’ve heard the last of the Wells Fargo fake accounts scandal? Think again. A class action lawsuit by former employees alleges Wells Fargo fired them for ethical behavior – i.e., for refusing to meet sales quotas by opening bogus additional accounts for bank customers.
Alexander Polonsky and Brian Zaghi represent a class of Wells Fargo current and former employees over the past ten years, who may have been terminated, demoted, or retaliated against for not meeting their sales quotas. They allege employees are pressured into coercing family members and friends to open accounts to meet quotas, and were required to work “beyond a typical work schedule” without compensation – or they were threatened with demotion and termination. Plaintiffs seek $2.6 billion, “and possibly more.”
Employer Tip: It is important to “walk the walk.” Comply with the law, and don’t encourage or incentivize management or employees to act in violation of the law.
Nicole Kamm is a Shareholder in our Employment Practice Group.