Tuesday, October 20, 2015

Kuvin Law FIles Sex Discrimination Lawsuit Based Upon "Sexual Orientation Discrimination" Under Title VII

WASHINGTON — David Baldwin is asking a federal court to order the Obama administration to pay up for alleged anti-gay discrimination he claims to have faced while working for the Federal Aviation Administration in Miami.

Baldwin’s lawyer told BuzzFeed News that the purpose of the lawsuit is much larger, though, aimed at expanding the scope of a recent agency ruling that found anti-gay discrimination is barred by existing civil rights laws.

“Mr. Baldwin’s case has the ability to affect more people than the [Supreme] Court’s Obergefell [marriage] case because there are more gay men and women who have jobs than same sex couples who want to get married,” Baldwin’s lawyer, Lowell Kuvin, told BuzzFeed News on Monday evening.

Baldwin — who alleges that he was passed over for promotions at the FAA’s Miami Tower Terminal Radar Approach Control facility because he is gay — took his case to federal court this past week, following up on a ruling in his favor this summer from the Equal Employment Opportunity Commission that allowed his case to move forward.

Baldwin argued — and the EEOC agreed — that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 includes a ban on discrimination based on a person’s sexual orientation.
“[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the EEOC ruled in July in Baldwin’s challenge. Baldwin then had 90 days to decide whether to take the case to federal trial court.

In the complaint, filed in federal court in Miami on Oct. 13, Baldwin sued Transportation Sec. Anthony Foxx and FAA administrator Michael Huerta in their official capacities. Baldwin claims that he “was not selected for a permanent position as a [Front Line Manager] at the Miami Tower facility” and that sex — specifically, the fact that he is gay — was the “motivating factor” for the fact that he was not promoted.

Baldwin alleges that he “was singled out due to his sexual orientation and treated differently than heterosexual co-workers by his supervisors due to inappropriate gender stereotyping,” according to the complaint.

As legislative efforts to pass explicit LGBT protections have stalled in Congress, the argument that sexual orientation discrimination should be or is covered under existing civil rights laws has been advanced in recent years by some advocates and, this summer, by the EEOC.
While only the Supreme Court could issue a definitive ruling on the interpretation, EEOC decisions are given significant deference by federal courts. For now, however, the EEOC’s decision is only binding on federal agencies.

“While the decision by the EEOC in Baldwin v. Foxx was a giant step forward for extinguishing sexual orientation discrimination by allowing federal employees to pursue sexual orientation claim under the Civil Rights Act of 1964 and Title VII, it was just a small step forward for non-government employees,” Kuvin, Baldwin’s lawyer, told BuzzFeed News on Monday evening. “The next logical step for Mr. Baldwin, who would like to see the protection of Title VII extended to non-government employees alleging sexual orientation discrimination, was to bring the issue to the federal courts.”

Kuvin added that Baldwin only decided to take the matter to federal court “once it became apparent that the issues were not going to be resolved” through conciliation with the FAA, which Kuvin said “never responded” to Baldwin’s attempts to resolve the matter without litigation.

The move on sexual orientation coverage by the EEOC is not surprising. In 2012, the EEOC took similar action regarding the coverage of anti-transgender discrimination, finding in a case brought by Mia Macy that gender identity-based discrimination is covered under the sex discrimination bar in Title VII. The Obama administration has since concurred with that interpretation, but it has not announced such agreement with the EEOC’s interpretation as to anti-gay discrimination.
Baldwin’s case has been assigned to U.S. District Court Judge Kathleen Williams, appointed to the bench in 2011 by President Obama.

One leading advocate of the EEOC’s cases encouraged others to file similar cases.
“The EEOC’s strongly reasoned Baldwin ruling deserves deference from federal courts across the country, and we hope the federal district court in Florida will join federal courts in Washington state and Washington, D.C. in ruling that gay plaintiffs can bring Title VII claims,” Freedom to Work’s Tico Almeida told BuzzFeed News. “More LGBT Americans should follow the lead of courageous people like David Baldwin and Mia Macy by filing claims under the sex discrimination bans in the Civil Rights Act, the Fair Housing Act, and other existing federal statutes.”

Doing Away WIth Tipping - Restaurants Want To Charge More - Servers Will Earn Less

Danny Meyer, the New York restaurateur, may have started something. Last week, he announced he would eliminate tipping at his 13 restaurants and raise his prices. There followed a plethora of editorials and op-ed columns, most of them in support of the new policy, some of them pointing out — as you might have guessed — that tipping is anti-democratic, sexist, racist and, if it does not in some way contribute to global warming, that’s only because the study has yet to be done. Still, I love tipping.

The practice originated with European aristocracy, whence the term itself comes — “To Insure Promptitude,” thus TIP. The Financial Times editorial where I found that much-disputed fact went on to call the practice a “demeaning custom,” “outdated” and, just for good measure, “obnoxious.” That was just one of five articles the newspaper devoted to the subject. It has not been so worked up since Scotland threatened to bolt the United Kingdom.

Why? Well, there is much to criticize about tipping. Waiters usually do not share their tips with the kitchen staff, including the all-important chef. (There are, apparently, two classes of chefs: celebrity and impoverished.) It can be demeaning to rely on tips since some people like to see a waiter grovel or they like to criticize just about every aspect of the meal.

It is true also that female waiters not only have to put up with the occasionally obnoxious behavior of co-workers but also sometimes have to wade into a dining room fetid with men who think a good tip permits a sexist comment (or a leer). A New York Times anti-tipping article says that “nearly 37 percent of all sexual harassment claims to the Equal Employment Opportunity Commission come from restaurants.” Maybe so, but eliminating tipping will not eliminate boorish behavior.

There are, I grant you, some problems with tipping, but it is, overall, worth keeping. Like almost everyone else in America, I was once a waiter — and a busboy, and a short-order cook and a dishwasher — and I never felt I was groveling for tips. I did feel, as a friend told me before I went off on a wait job, “Remember, you work for the customer, not the restaurant.” If tipping doesn’t quite shift loyalties so neatly, it does put loyalties into play.

The waiter is my guy for the duration of the meal. He’s my agent. He looks out for me and, if he does a good job, I look out for him. He has an incentive to give me exceptional service, not some mediocre minimum, to ensure that my water glass is full, that my wine is replenished, to make sure that the busboy does not prematurely remove the plates — that I am not hurried along so that the owner can squeeze in another sitting. The waiter is my wingman.

I hesitate to mention another reason I like tipping. I like to make a difference, not just to be a bit of a big shot or be noticed or appreciated, but to give some of what I make to those who make less. I’m not flipping silver dollars into the air or hurling twenties around with abandon, but I am a healthy tipper (once a waiter, always a tipper) because this is my way of recognizing a good job. A healthy tip is like a pat on the back.

The tip is recognition of service well-performed. It shows that I care, that I notice — that I recognize what the restaurateur way back in the kitchen does not because he cannot. Why would I want to treat everyone as if they were equally good at their tasks? I like to reward, but occasionally I like to punish. Make my meal an ordeal, make me anxious about whether you got the order straight, and no 20 percent tip will come your way. Maybe that’s not democratic, but a meal is not a town hall meeting.

Tipping, I regret, will go the way of the tie or the dinner jacket. It’s complicated. It needs to be calibrated. It’s something you learn how to do over time, and when, as a kid, I used to watch my father tip the waiter and the mai tre d’, I felt that mastering this would be almost as difficult as fatherhood itself. I’ve got most of it down now (I still don’t know what the mai tre d’ gets) — and I consider it both a responsibility and a privilege. I could go on, but my table — of course — is ready.

Sunday, February 15, 2015

Darden Sue By Servers Alleging Age Discrimination At Season's 52

Clients of the Law Firm of Lowell J. Kuvin were named in a complaint filed by the Equal Employment Opportunity Commission in an age discrimination lawsuit against restaurant giant Darden, the owner and operator of chain restaurant Season’s 52.

Anthony Scornavacca and Hugo Alfaro, 52 and 49 were denied employment when they applied for server positions at the Season’s 52 location in Coral Gables, Florida. “Scornavacca, who was a server at Joe’s Stone Crab for many seasons, and Alfaro, who has been in the hospitality business for more than two decades, are both highly experienced servers” said their attorney Lowell J. Kuvin, Esq. who filed their EEOC charges of discrimination. “It is beyond reason that Darden’s spokesperson Rich Jeffers said, ‘[w]e are proud of our commitment to diversity’ when both Mr. Scornavacca and Mr. Alfaro, who are both qualified were given cursory employment interviews and then denied employment based upon pre textual reasons.”

After their two year investigation, the EEOC issued a Letter of Determination which stated in part that “[t]he evidence, including statistical data, supports a finding that [Season’s 52] engaged in a pattern or practice of not hiring individuals who are over the age of forty at its Season 52 restaurants throughout the United States.” Mr. Kuvin and the EEOC both tried to conciliate Mr. Scornavacca and Alfaro’s claims, however, Darden refused to work with either party and denied any preferential hiring had occurred.

"It is getting harder and harder for hospitality workers over the age of forty to find employment." said attorney Lowell Kuvin. "Unfortunately, there seems to be a growing trend perpetuated by successful restaurant chains such as Houston's/Hillstone's and Season's 52 that front of the house employees such as server and bartenders over the age of 40 do not fit in."

The Law Office of Lowell J. Kuvin is law firm dedicated to hospitality worker's rights throughout the United States.

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Wednesday, January 7, 2015

Florida Minimum Wage Rate Increases

On January 1, 2015 the Florida Minimum Wage increased from $7.93/hr.  to $8.05/hr. for non-tipped employees and from $4.91/hr. to $5.03/hr. for tipped employees who earn at least $3.02/hr. in tips. The increase will benefit approximately 364,000 low wage workers in the state by adding an additional $300 per year to their $16,500 annual wages.

Florida is joined by 19 states — Alaska, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Jersey, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington and West Virginia — that will raise their minimum wage on New Year's Day, and New York — which will do the same Wednesday — boosting wages for a total of 3.2 million workers.

For voters in Florida it is important to know that the increase was NOT the result of legislation or laws passed by representatives in Tallahassee; it was the sheer will of the people. In 2004, by an overwhelming majority, the voters passed the Florida Minimum Wage Amendment (Art. X Sec. 24) which mandates a yearly increase in order to keep the minimum wage on track with inflation.

The Law Office of Lowell J. Kuvin, LLC represents employees in the hospitality industry and other Florida industries in minimum wage claims against employers. Call and speak with an attorney for free.

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Monday, November 17, 2014

Strippers Win $10 Million Dollar Lawsuit For Tips And Unpaid Wages

NEW YORK -- Dancers at a strip club are due more than $10 million in back wages and tips, a federal judge ruled Friday after the dancers sued to be paid at least a minimum wage.

And additional claims are headed for trial in the class action case, meaning there ultimately could be further awards to roughly 1,900 women who worked at Rick's Cabaret in Manhattan between 2005 and 2012.

"We are very happy with the court's ruling," said the dancers' Minneapolis-based lawyer, E. Michelle Drake.

The club's owner, Houston-based RCI Hospitality Holdings Inc., said it planned to appeal and continue "vigorously defending the allegations."
The dancers got no steady wages, instead paying a fee to the club to perform there and in return getting paid by customers. The customers put up $20 for each personal dance and fees starting at $100 for 15 minutes of entertainment in semi-private rooms.

But after paying club fees and required tips to deejays and other club workers, the dancers sometimes ended up in the red, Drake said.

"There is a real mythology of the wealthy stripper who has made piles of money," she said by phone Friday. "People see all the money that the customers give to the dancers. What they don't see is all the money going back from the entertainer to the club."

The club argued the dancers were independent contractors. Club lawyers also said any wages due to the strippers should be offset by the money they made from customers, called performance fees.

"The concept that the large sums of money earned by entertainers at Rick's Cabaret New York, for which they received IRS Form 1099s, do not offset the claimed wage obligations is a fundamentally flawed concept," RCI Hospitality Holdings said in a statement Friday.

U.S District Judge Paul Engelmayer disagreed, first ruling last year that the dancers were entitled to minimum wage. Then he found Friday that they were entitled to $10.8 million on certain claims.

"There is no charter under (state labor law) for an employer to treat a performance fee as either a 'wage' or as an offset to its statutory wage obligations," he wrote.

Local Florida labor attorney Lowell J. Kuvin, Esq. said "I have seen both sides of the argument of whether the dancers were either employees or independent contractors, there is not any simple answer. The Clubs need to be diligent in how they operate so as not to change the classification of the dancers to being employees."

Friday's ruling covered claims the judge felt could be decided based on court papers alone. The trial will address others. The dancers are seeking more than $18 million in all.

Friday, October 17, 2014

Jimmy John's sandwich shop job application fine print forbids working at another sandwich shop for 2 years after leaving

If you're considering working at a Jimmy John's sandwich shop, you may want to read the fine print on your job application.

A Jimmy John's employment agreement provided to The Huffington Post includes a "non-competition" clause that's surprising in its breadth. Noncompete agreements are typically reserved for managers or employees who could clearly exploit a business's inside information by jumping to a competitor. But at Jimmy John's, the agreement apparently applies to low-wage sandwich makers and delivery drivers, too.

By signing the covenant, the worker agrees not to work at one of the sandwich chain's competitors for a period of two years following employment at Jimmy John's. But the company's definition of a "competitor" goes far beyond the Subways and Potbellys of the world. It encompasses any business that's near a Jimmy John's location and that derives a mere 10 percent of its revenue from sandwiches.

From the "Agreement:"

Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John's location in question] or any such other Jimmy John's Sandwich Shop.

It isn't clear what sort of trade secrets a low-wage sandwich artist might be privy to that would warrant such a contract. A Jimmy John's spokeswoman said the company wouldn't comment.

The noncompete agreement is now part of a proposed class-action lawsuit filed this summer against Jimmy John's and one of its franchisees. As HuffPost reported in August, Jimmy John's workers recently brought two lawsuits accusing the company of engaging in wage theft by forcing employees to work off the clock.

Last month, the workers filing one of those suits amended their initial federal complaint to argue that the noncompete agreement is overly broad and "oppressive" to employees. (The noncompete language from the franchisee's agreement can be found here, in the online hiring packet for a different Jimmy John's franchisee.)

Kathleen Chavez, the lawyer handling the case, told HuffPost in an email that her two clients named in the complaint were required to sign the agreement as a condition of employment; one is an assistant store manager, the other a former delivery driver and assistant store manager. Chavez argued that, if enforced, the clause would dramatically limit the places a worker could earn a paycheck following a stint at Jimmy John's.

Chavez said the effective blackout area for a former Jimmy John's worker would cover 6,000 square miles in 44 states and the District of Columbia. Founded in 1983, the college-town staple now has more than 2,000 locations.

"It is disturbing this document is being used and it is our position that it has broad impact on thousands of employees," said Chavez, who is a lawyer with the Chicago firm Foote, Mielke, Chavez & O’Neil.

Chavez used the example of a student who works at a Jimmy John's in Illinois during high school. Once he leaves for college at the University of Alabama, he has been foreclosed from working just about anywhere in Tuscaloosa that serves a decent share of sandwiches -- including, in theory, the school cafeteria -- because most of those places fall within three miles of a Jimmy John's.

HuffPost knows of no instances in which Jimmy John's has actually enforced this covenant upon a worker, and the company wouldn't necessarily be successful if it tried.

But it's not unheard of for a sandwich chain to enforce a noncompete clause. Last year, a former Subway manager accused her old employer of trying to block her from starting a new job at another sandwich shop, citing a clause the manager signed in 2009.

The effectiveness of noncompetition agreements varies from state to state. If the worker fights the clause in court, the company generally needs to demonstrate that it's legitimately trying to protecting itself, and that the clause is reasonable and wouldn't put an undue burden on a worker.

"A guy who's putting a piece of roast beef between two pieces of rye bread -- the challenge for the employer is to show what the hell this person knows that will hurt you," said one expert on noncompete agreements, who asked not to be named since he isn't involved in the case.

"Without making a judgment about Jimmy John's, I would say the lower you go down the food chain of employees, the question becomes a little more pressing: What is your legitimate business reason here?"

A company in this position may feel there's little to lose by inserting such language into an agreement. Even if the clause failed to hold up in court, the very possibility of limited employment opportunities could dissuade certain workers from rocking the boat -- like, say, those who are trying to unionize their Jimmy John's sandwich shop.

Tuesday, October 7, 2014

Kansas Supreme Court FedEx Ground Drivers Are Employees, Not Contractors! Ruling May Have Implications For Workers At Franchise Restaurants.

New Ruling: FedEx Ground Drivers Are Employees, Not Contractors! Kansas Supreme Court
Are you a contractor or employee
Employees not contractors!
Ruling May Have Implications For Workers At Franchise Restaurants.

479 Kansas FedEx Ground delivery drivers working for FedEx as independent contractors sued FedEx alleging they were improperly classified as independent contractors under Kansas law. The drivers are seeking to recoup retroactive costs and expenses, as well as overtime.

FedEx has faced multiple class actions across the country by both current and former drivers who signed contracts with FedEx between 1998 and 2007. Drivers say that the shipping giant classified them as independent contractors, but forced them to buy their own uniforms and equipment, while also controlling minute details of their appearance and behavior, with specific guidelines for hygiene and body odor.

Factors the court considered included: how much training the delivery company provided the drivers and how the drivers’ work hours were set, FedEx’s requirements of drivers to comply with its instructions, and how integrated the drivers’ services were to FedEx’s business

The justices also emphasized that FedEx provides "manuals, handbooks, memoranda, training videos, and other means of communication that direct that manner and means of delivering packages."
     "In short, the plaintiff drivers are integrated into FedEx's business to the highest degree possible," the 49-page ruling states.

The Kansas opinion could influence not only the decision of the Seventh Circuit court, but also other similar lawsuits against FedEx in other courts around the country.

Does Fedex sound like a restaurant you work for?
Find out if you are an employee or an independent contractor at www.kuvinlaw.com today.