Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

On the Friday before Thanksgiving, Vice-President Biden announced at a Middle Class Task Force event the creation of a collaboration between the U.S. Department of Labor and the American Bar Association.   According to the press release associated with the event, the purpose the collaboration is to “help workers resolve complaints received by DOL’s wage and hour division.

Beginning December 13, 2010, people with unresolved complaints under the Fair Labor Standards Act (FLSA) or Family and Medical Leave Act (FMLA) will be sent a letter explaining their rights, and providing a toll-fee number that will connect them with an ABA approved lawyer referral service in their area. These are complaints that the Department of Labor is otherwise charged with investigating but apparently cannot because of what the Secretary of Labor described as the Department’s “limited capacity.”

While this collaboration may be good for the business of lawyers, it is doubtful it will be good for anyone else, most especially the business community and the middle class employees the program purports to help.   The unspoken assumption of programs like this one is that lots of employers are violating employment laws and short changing their employees.   Indeed, Labor Secretary Solis’ statement that “our nation’s workers deserve full and fair compensation” implies that they are not.  

Contrary to the assumptions underlying this program, in my experience and that of other employer side lawyers I know, the lion’s share of companies are conscientious about complying with the employment laws. The high cost of defending employee claims and the risk of an adverse outcome, regardless of the merits of the suit, give employers an economic incentive to comply with the law.   Nor is the federal government and the ABA encouraging more employment litigation likely increase the income of middle class employees. In fact, it may have the opposite result, as more and more resources are devoted to defending and settling these cases rather than increasing wages and benefits of employees generally.    In a 2008 study by Estreicher and Yost, the median gross settlement in 179 collective or class action employment lawsuits studied was $8,500,000.   This does not include the thousands of individual claims and settlements every year. 

Remarkably, the ABA touts this program as an opportunity to improve the image of lawyers. I don’t know who the ABA thinks this will impress, but it is not likely to be the business community or the majority of the general public who are cynical about lawyers.  If the Department of Labor believes employer compliance with FLSA and FMLA is lacking, there are more constructive ways to address the problem than increasing their litigation risk.

For a thoughtful view on the other side of this issue, see Dan Schwartz’s post at the Connecticut Employment Law Blog.

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A jury in the U.S. District Court, Southern District of Iowa recently returned a verdict in excess of $50,000 to a female plaintiff alleging sex discrimination based upon gender stereotypes.   The plaintiff, who was a night auditor at a hotel, claimed she was terminated because she was more masculine than a typical female employee. She described herself as “slightly more masculine”; she preferred to wear loose fitting clothing as well as men’s button down shirts and slacks.   

There was evidence a manager for the employer made statements that its front desk staff should be “pretty” and have a “Midwestern” girl look. 

The trial court had previously granted summary judgment to the defendant on the grounds that the plaintiff presented no evidence she was treated differently than similarly situated male employees. However, the Eighth Circuit reversed and remanded for a new trial, holding that it was wrong to require a sex discrimination plaintiff to rely solely upon evidence showing the treatment of similarly situated male employees. (See our post here discussing the Eighth Circuit opinion).  

Notably, the jury found for the plaintiff only on her claim of retaliation, not gender discrimination.   Thus, even though the case was remanded to the trial court because of the gender discrimination claim, that is not how the plaintiff established liability.   We noted in our previous post that the Eighth Circuit’s decision expanded the boundaries of gender discrimination liability for employers. Even though the jury did not find gender discrimination, the fact that the plaintiff prevailed on any ground is likely to encourage more gender stereotyping claims of this type.

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