News & Commentary

October 8, 2019

Vail Kohnert-Yount

Vail Kohnert-Yount is a student at Harvard Law School.

Today, the Supreme Court will hear oral argument in three cases that turn on whether Title VII’s protections against sex discrimination extend to anti-LGBTQ discrimination, as Lolita reported yesterday. Aimee Stephens, Gerald Bostock, and the family of Donald Zarda are the plaintiffs in the first case involving gay rights since Justice Kennedy’s retirement, after writing the majority opinions in all four of the court’s major decisions protecting gays and lesbians, including the 2015 ruling that established a constitutional right to same-sex marriage. Today may be the first time the word “transgender” is spoken during oral arguments at the Supreme Court, which Chase Strangio, a transgender attorney who is part of Stephens’s legal team, noted in the Washington Post. Jared previously summarized the briefs for the employees and employers in in Bostock v. Clayton CountyAltitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

DOL released a new proposed rule that, among other things, allows tip pooling, which requires servers to give some of their tip money to their employers, who can choose to distribute it to other servers, managers, kitchen crew, and even themselves if they see fit. Under this new law, the Economic Policy Institute predicted that employers could legally pocket over $5 billion annually from server tips, and indeed the National Restaurant Association has lobbied for this rule. Because tip pooling allows employers to capture some of workers’ tips, the EPI said this regulation means that a strong minimum wage, which limits employers’ ability to capture tips, is even more important.

The New York Times profiled the itinerant immigrant workforce that performs disaster recovery and reconstruction work in hurricane-prone areas, as hurricanes increase in frequency and severity. Often undocumented, these workers are more vulnerable to wage theft, housing instability, and employer threats of retaliation. Last month, a group of immigrant workers who cleaned up two resorts in the Florida Keys after Hurricane Irma in 2017 filed suit in federal court against a disaster restoration company and the owner of a staffing firm, alleging that they were not paid minimum wage or overtime for hours worked. One of the plaintiffs, who entered the country on a tourist visa, said that her boss threatened to call immigration authorities on her and her coworkers after they complained that their paychecks had bounced.

Bloomberg Law reported that three recent lawsuits argue that local paid sick leave laws are affecting flight routes and therefore violating federal rules governing air travel. The airline industry, represented by trade group Airlines for America, is fighting to exempt its workers from state and local paid sick leave on the grounds that compliance is too complex and interferes with scheduling needs. Eleven states, D.C., and 22 cities have passed paid sick leave laws, which generally require that individuals working within the jurisdiction must be able to accrue paid sick leave for hours worked and can take that leave without retaliation. With employees constantly traveling, airlines already must track scheduling, weather, and other “irregularities” every day, said Sara Nelson, president of the Association of Flight Attendants-CWA. “So for them to argue that this is too complicated is really pretty absurd.”

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