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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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Isolated Incident Can Support Harassment Claim
Boyer-Liberto v. Fontainebleau Corp., 4th Cir., No. 13-1473
A single instance of harassment can be so severe that it changes the terms and conditions of an individual’s employment and creates a hostile work environment, according to the 4th U.S. Circuit Court of Appeals.
Reya C. Boyer-Liberto, a black woman, worked at the Clarion Resort Fontainebleau Hotel, in Ocean City, Md., which contains several restaurants and bars.
On Sept. 14, 2010, Boyer-Liberto was working as a cocktail waitress in the Clarion’s nightclub. After retrieving a drink for a customer, she passed through the restaurant kitchen on the way back to the nightclub. After delivering the drink, she returned to her server station, where she was confronted by Trudi Clubb, a white food and beverage manager at the hotel.
Make sure all employees are trained on harassment and discrimination and how to prevent them. This is particularly critical for supervisors.
Clubb came through the kitchen doors, loudly berating Boyer-Liberto for passing through the kitchen and for ignoring Clubb when she had previously tried to get her attention. Clubb threatened Boyer-Liberto with words that included “[I’m] going to get [you]” and “[I’m] going to make [you] sorry,” and concluded by calling Boyer-Liberto either a “damn porch monkey” or a “dang porch monkey.”
The following day, Boyer-Liberto complained to HR about the incident. Four days after her harassment complaint, she was terminated.
She filed an action for racial discrimination and retaliation against her former employer. The trial court granted the defendant’s motion to dismiss the case.
But the full 4th U.S. Circuit Court of Appeals vacated and remanded the matter for further proceedings.
The court found that an isolated instance of harassment can amount to discriminatory changes in employment if that incident is “extremely serious.”
By Anthony J. Vinhal, an attorney with Carmagnola & Ritardi LLC, the Worklaw® Network member firm in Morristown, N.J.
Company Exempt from Overtime Claims of Drivers
Resch v. Krapf’s Coaches Inc., 3rd Cir., No. 14-3679
A motor coach company that required its drivers to meet the federal Motor Carrier Act (MCA) safety requirements and that randomly distributed interstate routes did not have to pay overtime to its drivers, the 3rd U.S. Circuit Court of Appeals ruled.
Krapf’s Coaches Inc. maintains a fleet of buses and shuttles that transport passengers on set routes within and outside its home state of Pennsylvania. Between 2009 and 2012, the majority of its trips remained in Pennsylvania, although a portion of its revenue—between 1 percent and 9.7 percent—came from interstate trips.
One of Krapf’s drivers, Joseph Resch, brought a collective action suit under the Fair Labor Standards Act (FLSA) to recover unpaid overtime compensation for other drivers and himself.
Resch claimed that many Krapf drivers seldom or never drove interstate routes, and thus Krapf could not claim that the MCA exemption applied.
The MCA exemption often applies in the transportation industry. Employers whose businesses involve transporting people or property over interstate routes should review their policies to make sure they comply with Department of Transportation rules.
The Federal Motor Carrier Safety Administration regulates employees who perform activities that affect the safety of interstate transportation.
Resch claimed that most Krapf drivers did not qualify as workers whose activities affect the safety of interstate transportation because only 1.3 percent of Krapf’s trips crossed state lines.
However, the trial court dismissed the case for all drivers, and the appellate court affirmed.
The 3rd Circuit reasoned that courts must decide whether the FLSA or MCA covers drivers on the whole and not on an individual basis. An entire category of driver becomes exempt from overtime eligibility if an employer distributes interstate routes indiscriminately to drivers, all drivers are eligible for an interstate route and no drivers are entirely excluded from the possibility of driving an interstate route.
By Jeffrey L. Rhodes, the managing partner of the civil division of Albo & Oblon LLP in Arlington, Va.
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