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Archive for September, 2020

EEOC Issues Opinion Letter on Scope of Pattern or Practice Claims that Modifies Earlier Position

Posted on: September 23rd, 2020

By: Jennifer Markowski

On September 3, 2020, the Equal Opportunity Commission (“EEOC”) issued an Opinion Letter concerning the so-called “pattern or practice suits” brought under section 707 of Title VII. The questions answered in the letter are: (1) Does a pattern and practice claim under section 707(a) require allegations of violations of section 703 or section 704; and (2) Does a section 707 claim require the pre-suit requirements of section 706 be satisfied before suit can be filed? The EEOC answered both questions in the affirmative, which was a change from previous stances on both issues.

Section 707(a) allows the EEOC to bring suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.” 42 U.S.C. § 2000e-6(a). The subchapter is Title VII itself and the rights secured by Title VII are the rights to be free from unlawful discrimination (section 703) and retaliation (section 704). Reading the sections together, the EEOC opines that a claim under section 707 must therefore be based on a pattern or practice that is tied to unlawful discrimination or retaliation. This position deviates from the EEOC’s earlier broader interpretation that it had authority to pursue claims based on undefined practices that it believed facilitated unlawful “resistance” in some way, even if those practices did not violate section 703 or 704.

The EEOC further advised that the 706 pre-suit requirements must be satisfied before bringing suit. Thus, a charge must be filed, a reasonable cause finding must issue, and conciliation must be pursued before suit is filed. This too was a change from the EEOC’s earlier position that it was not bound by the section 706 requirements when pursuing a claim of “pattern or practice of resistance.”

Employers who rely in good faith and in conformance with the interpretations provided in the Opinion Letter may have a defense to a claim even if the Opinion Letter is subsequently rescinded, modified, or invalidated by a court.

If you have questions or would like more information, please contact Jennifer Markowski at [email protected].

COVID-EO JURY TRIALS – Challenges Imposed By Virtual Jury Trials During COVID-19 And Alternatives To Best Serve The Interests Of The Client

Posted on: September 22nd, 2020

By: Stacey Bavafa

In March of 2020, the United States judicial court system experienced an unprecedented disruption when most courts decided to close their doors and suspend jury trials due to the COVID-19 pandemic. Now, approximately 6 months into the pandemic, California courts have yet to resume in-person civil jury trials.

One can say that the use of technology during the coronavirus pandemic has had a positive impact on the legal community and brought an ancient, prestigious profession up to speed in 2020. With more attorneys leaning towards Zoom conferences in order to conduct client interviews, depositions, and even attend court mandated conferences and hearings, lawyers are saving time and money for their firms and the clients who hire them.

But what about when it comes to conducting a “virtual” civil jury trial? At first glance, a virtual trial seems more convenient to all involved. Jurors, witnesses, parties to a lawsuit, and their attorneys can merely sign on from the comfort of their homes instead of being burdened by the need to travel, find parking, and wait in long security lines to enter the courthouse. This is especially of benefit to defense attorneys who no longer have to worry about sympathetic jurors seeing a plaintiff exaggerate a limp while walking in courthouse hallways.

Additionally, with a virtual trial, attorneys can shorten their presentation of the evidence by using catchy sound bites throughout to keep the attention of the virtual jurors who are tuning in from their homes.

However, when looked at in greater detail, it becomes apparent that a remote jury trial actually imposes an array of challenges that may be of detriment to defense attorneys and their clients alike. 

For starters, there are a host of technological issues that are inevitable. First, there’s the issue of ensuring that all witnesses, parties, and jurors have access to a computer and high-speed internet.

Then come the inescapable technical video and audio issues associated with a remote jury trial. Video can be choppy, delayed and distorted. A juror’s evaluation of a witness or party to a case may be affected by how the individual is framed in the video stream. Bad lighting or a poor camera angle can also affect the presentation of evidence. An accidentally muted microphone or a delayed audio feed also diminishes a juror’s ability to analyze the testimony being presented. 

Aside from the technical complications, there is also the issue of the court’s inability to maintain and manage decorum in a “virtual courtroom.” Generally, courtroom staff and judges work together to safeguard a trial from outside world distractions. For example, jurors are told to turn off their cellphones prior to entering the courtroom and are told not to discuss the case with anyone until its completion.

The management and control of virtual jurors is almost impossible. There is no way to ensure that remote jurors are present, alone, and attentive throughout all aspects of the remote trial. There is no way to ascertain remote jurors are in an isolated environment by themselves, or whether there are other individuals present, off-camera, that are tuning into the trial testimony. It is also much easier for remote jurors to use their cellphone to send texts or scroll through social media in a remote setting than if they were within the confines of a courtroom. 

Since no one knows the trajectory of the coronavirus and when traditional jury trials will resume, trial attorneys need to think of creative and alternative approaches that do not impose the challenges of a virtual jury trial, all while keeping their client’s best interest in mind.

In the face of the pandemic, alternative dispute resolution (“ADR”) appears to be the most viable method for the resolution of civil disputes. “Virtual ADR”, such as remote mediations or arbitrations, allow cases to be resolved expeditiously and in a far more cost-effective manner. 

Another option would be for attorneys to opt for bench trials in lieu of a traditional jury trial. Considering how backlogged the court dockets are, a bench trial will allow parties to present their case before a judge and obtain a resolution in a shorter duration than a traditional jury trial. Bench trials are extremely beneficial in cases involving complex legal issues because a judge is better able to decipher the facts of the case than a jury who may confuse the issues and legal concepts. Furthermore, bench trials may result in a more pragmatic award compared to an award determined by a traditional jury.

While it is difficult to predict the long-term effects of the coronavirus on the civil justice system, what is certain are the lessons members of the legal community have drawn and will continue to draw from this experience. One being that the alternative route to a traditional jury trial, by way of alternative dispute resolution or a bench trial, appears to be the more practical approach to pushing litigated files to resolution as opposed to the idea of the “virtual jury trial.” However, attorneys must prepare themselves. If the COVID-19 pandemic continues, many courts and attorneys may inevitably be forced to embrace the idea of the virtual jury trial.

If you have questions or would like more information, please contact Stacey Bavafa at [email protected].

Georgia Revamps Lactation Break Law for Private Employers and Creates a New One for Public Employers

Posted on: September 22nd, 2020

By: Tim Boughey

The Georgia state legislature recently weighed in on the issue of lactation breaks by passing “Charlotte’s Law.”  Before August 5, 2020, Georgia employers largely followed the federal Fair Labor Standards Act’s lactation break requirements to provide an employee with a reasonable amount of unpaid break time and a space to express milk as frequently as needed by the nursing mother, for up to one year following the birth of the employee’s child. The former Georgia lactation law (O.C.G.A. § 34-1-6) did not require much more than the FLSA – so it took a back burner to the federal requirements.

Now, Georgia public and private employers need to do more and comply with “Charlotte’s Law,” which is more robust than the FLSA in its requirements.  In short, Charlotte’s law requires most Georgia employers to provide reasonable break time to working mothers who desire to express breast milk at their worksite during working hours in a safe location near the employee’s workspace. Like the FLSA, restrooms do not satisfy the “safe location” requirement. Unlike the FLSA, Georgia’s law applies to all employees, requires PAID break time and includes no one-year time limit on granting of lactation breaks.  Charlotte’s Law requires employers to pay the employee at the employee’s regular rate for the lactation break. If an employee is salaried, employers cannot require employees to use paid leave for such breaks or reduce their salary because of the breaks.

The amended O.C.G.A. § 34-1-6 now applies to Georgia private employers with one or more employees. The law does create an undue hardship exemption for employers with fewer than 50 employees where compliance would cause significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business.

For employers with teleworking or traveling employees, Charlotte’s Law does not require a paid lactation break for any employee working away from their worksite. But employers should continue to follow federal requirements.

Notably, Charlotte’s Law also created O.C.G.A. § 45-1-7, which applies the same rules to public employers, except public sector employers can avoid liability for making reasonable efforts to comply with Charlotte’s Law.

Here is the final legislation:

If you have questions or would like more information, please contact Timothy Boughey at [email protected].

Let Us Eat Cake (and Work)! — A Federal District Judge Declares Pennsylvania’s Capacity Restrictions and Business Closures as Violations of the First and Fourteenth Amendments

Posted on: September 21st, 2020

By: Ashley Hobson

On Monday, September 14th a federal judge in the Western District of Pennsylvania struck down the Governor’s restrictions on the size limitation of persons at gatherings and the mandatory closure of “non-life sustaining” businesses. The restrictions, which were similar to those across many states, have since been lifted as all counties entered the “Green” phase of re-opening on July 3rd.  Although District Judge William Stickman IV labeled the Governor’s restrictions as “well intentioned,” he also opined that “good intentions towards a laudable end are not alone enough to hold governmental action against a constitutional challenge.”


Like most states across the country, Pennsylvania initiated strict protocols in the hopes of containing the novel coronavirus outbreak. Due to the virus’ varying impacts across the state, counties were placed under Stay-at-Home Orders on different dates, and the statewide Stay-at-Home Order was implemented on April 1st.

The Governor implemented a three-phase re-opening process: Red, Yellow, and Green. In the Red Phase, only life-sustaining business were permitted to remain open. Further, large gatherings were completely forbidden, and restaurants were limited to carry-out and delivery. In the Yellow Phase, gatherings were limited to no more than 25 persons, with many businesses remaining closed. As of July 3, 2020, every county moved to the Green Phase. Although the Green Phase reopened most business establishments, there are still capacity limitations for both indoor and outdoor activities.

Constitutional Violations:

On May 7th, the Plaintiffs filed their Complaint, arguing the Governor’s “numeric limitation on the size of gatherings” violated the First Amendment, while the Stay-at-Home Orders and the mandatory closure of “non-life-sustaining” business violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

In addressing the First Amendment violations, Judge Stickman held the capacity restrictions were not only far too broad and not scientifically linked to achieve the State’s goal of reducing the spread of Covid-19, but that the capacity limitation does not “address the specific experiences of the virus across the Commonwealth.”

The Court also agreed that the Stay-at-Home Orders and business shutdowns were also unconstitutional. Similar to the capacity restrictions, Orders were far too broad, open-ended and the State has not proved the “burden to liberty is no more than reasonably necessary to achieve an important government end.”

How Does this All Relate to Employer?

For employers, the Court’s reasoning on the unconstitutionality of mandatory business closures is enlightening. The Court agreed that certain components of the state’s mandatory business shutdown orders violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The closing of “non-life-sustaining businesses” limited a person’s “pursuit of his or her chosen profession free from governmental interference.”  Judge Stickmen held, that is uncontested that the Fourteenth Amendment’s Due Process Clause recognizes an interest to pursue an occupation, but the true question is not about the right to work, but how much the State can infringe upon that right. In Pennsylvania, the Governor’s initial Order mandating the closures still has no definitive end date, which would permit the State to reclose businesses if it deems it necessary. Even though the State argued that the mandatory closures were temporary and many businesses has since reopened, the damage has already done.

Even if the restrictions were temporary, the Court found the State’s reasoning for labeling certain businesses as “non-life-sustaining” versus “life-sustaining” was done without creation of a set policy or even creating a definition of the term that could be agreed upon by all members of the State’s task force that initiated the closures. Rather than creating a uniform definition, the task force used “their commonsense judgement.” Although business owners were permitted to file waivers if their business was mistakenly classified as “non-life-sustaining,” the State closed the waiver process on April 2, 2020, and left many businesses without an option to appeal the designation. The arbitrary nature of the state’s designation left many business owners confused as to their status as “life-sustaining” or not.

The business closure provisions also violated the Fourteenth Amendment’s Due Process Clause in two ways. First, due to the States grouping of certain counties into regions for the purposes of implementing the phased re-opening plan, similarly situation businesses were not treated equally due to their location in a different region. Secondly, similarly situated businesses in the same region, were also treated unequally. The second argument is exemplified by the State’s permission of retailers such as Lowes and Home Depot to remain open during the pandemic. As many are aware, Lowes and Home Depot sell furniture, appliances, and various other products. Although they were permitted to remain open, smaller retailers that sold similar products were required to close. The only difference between Lowes and a smaller retailer that offers the same products is the size of the retailer, and that alone is insufficient to pass constitutional muster.

Although the Court agreed that States are permitted to implement certain regulations based on county and/or population density, the State cannot arbitrarily group businesses into categories of “non-life-sustaining” vs. “life-sustaining” without a measurable definition. Lastly, a State’s decision to close businesses must rationally relate to the stated purpose. Thus, there should not be a distinction between larger and smaller retailers who offer the same merchandise. The Court found that, although the State had good intentions, its implementation was far too arbitrary and not rationally related to achieve it goals.

What’s Next?

Judge Stickman’s ruling is hot off the press, and, although the State plans to appeal the District Court’s decision, it is unclear if the State will be successful and what the ruling may mean for other Pennsylvania businesses that remain closed. As these are very real issues to navigate, please contact one of our Labor and Employment team members to discuss the next steps in more detail.

If you have questions or would like more information, please contact Ashley Hobson at [email protected].

Federal Court Considers Jurisdiction Over Japanese Autonomous Auto Accident

Posted on: September 18th, 2020

By: Wes Jackson

On September 8, 2020, a federal court in California heard arguments as to whether it will exercise jurisdiction over a wrongful death lawsuit against Tesla. While the case presents an interesting forum non conveniens issue, it is also a harbinger of the coming transformation of auto accident litigation: as more vehicles become autonomous, what were once run-of-the-mill negligence cases will become full-blown corporate products liability claims.

The accident at issue occurred on April 29, 2018, when the driver of a Tesla Model X operating in Autopilot mode fell asleep and crashed into some motorcycles, pedestrians, and a van parked along an expressway near Tokyo, Japan. A 44-year-old husband and father died in the accident. His survivors brought suit against Tesla in the Northern District of California, arguing that the manufacturer sold cars operating on substandard, untested autonomous technology.

The arguments on September 8, 2020 consisted of standard forum non conveniens fare—weighing the benefit of having direct access to Tesla employees with knowledge of the car’s technology in California against the benefit of having access to witnesses and physical evidence of the actual crash in Tokyo. But the case also foreshadows a major change in how auto accidents are litigated. If, as we expect, the multiple split-second decisions involved in driving a vehicle are outsourced from the individual driver to a manufacturer’s autonomous driving system, liability will gradually shift from the driver to the manufacturer.

One consequence of this shift might be that the driver’s insurer is no longer the deepest pocket in play in auto wreck cases, encouraging plaintiffs to turn their attention to products liability claims against the manufacturer. Such a shift could also bring about major changes in the automobile insurance industry itself. These changes are likely to unfold in the coming years, as autonomous vehicles become more prevalent.

If you have any questions about this post or transportation liability, please contact the author, attorney Wes Jackson, at [email protected].