A Mississippi appeals court has determined that neither McDonald’s Corp. nor one of its franchisees could be held liable for injuries allegedly resulting from a spatula-wielding cashier’s response to a dispute with a customer. Parmenter v. J&B Enters., Inc. No. 2010-CA-01251 (Miss. Ct. App., decided February 21, 2012). Affirming the trial court’s grant of summary judgment and directed verdict in favor of the defendants, the court determined that McDonald’s did not exercise the requisite level of control over the employee to be liable under the doctrine of respondeat superior and that the employee was not acting within the scope of her employment when she engaged in the altercation, thus rendering the franchisee not liable under the same doctrine. The plaintiff also brought claims of negligent hiring and training, and the appeals court found insufficient evidence to support either claim. The court further ruled that the trial court properly disqualified the plaintiff’s…
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Sixty-five legal migrant workers from Mexico have filed a putative class action against GLK Foods, LLC in a federal court in Wisconsin, seeking to recover wages and damages for breach of contract, including the cost of transportation if the workers were terminated before the end of their certified period of employment. Jiminez v. GLK Foods LLC, No. 12-209 (E.D. Wis., filed February 29, 2012). The action was brought under the Migrant and Seasonal Agricultural Worker Protection Act, Fair Labor Standards Act, Wisconsin Migrant Labor Act, and Wisconsin Wage Payments, Claims and Collections Act. The workers were allegedly recruited from Mexico and employed in the United States in the defendant’s sauerkraut cannery under the H-2B temporary foreign worker visa program over a period of five years beginning in 2006. They claim that employers seeking to hire H-2B workers, where sufficient domestic workers are unavailable to perform the job, must file an application…
Starbucks Corp. has filed its response in the Second Circuit Court of Appeals in a dispute over tip sharing, asking the court to affirm the district court’s grant of summary judgment in its favor. Lawrence v. Starbucks Corp., No. 11-3199 (2d Cir., brief filed February 22, 2012). Additional information about related litigation involving Starbucks baristas and shift supervisors appears in Issue 256 of this Update. The company asserts that the district court correctly held that (i) New York labor law does not grant plaintiff assistant store managers the right to participate in a tip pool, and Starbucks did not “demand,” “accept,” or “retain” their tips; (ii) Starbucks’ policy of allowing only baristas and shift supervisors to share tips is consistent with state law; and (iii) assistant store managers exercise control over their subordinates’ employment status and are thus “agents” prohibited from sharing tips under state law.
The U.S. Department of Labor (DOL), which had sought in 2011 to increase protections for children working in agriculture, has agreed to ”re-propose the portion of its regulation on child labor in agriculture interpreting the ‘parental exemption.’” The original proposal sought to update a 40-year-old rule in light of data showing that “children are significantly more likely to be killed while performing agricultural work than while working in all other industries combined.” Agriculture Secretary Tom Vilsack applauded the action, saying, “The Labor Department listened to farmers and ranchers across the country. This announcement and the additional opportunity for comment represent a common-sense approach to strengthen our agricultural economy while keeping kids safe.” Critical responses from a number of lawmakers and the agricultural sector led DOL to reconsider its action. Under the revised rule, children of any age employed by their parent or a person standing in the place of the…
NBC’s Rock Center recently reported on how Alabama’s new immigration law is affecting farmers in the region, where stricter enforcement measures for undocumented workers have apparently left agricultural communities struggling to find workers. As cucumber farmer Jerry Danford explained to correspondent Kate Snow, the new rules have drained the seasonal labor pool and made it difficult for Alabama producers to compete with neighboring states. “Since the bill was signed into law, Danford has watched many of the immigrant workers he relied on leave. He worries that none of them will return for the spring harvest, when a provision requiring that employers check the immigration status of workers will be in effect,” reports Snow. Although Alabama Governor Robert Bentley (R) defended the law as necessary to uphold federal standards and secure jobs for Americans, the domestic workers interviewed by Snow preferred other kinds of work over field jobs, which typically pay $10…
The Eleventh Circuit Court of Appeals has upheld in part a district court ruling that denied migrant workers’ claims that a Georgia onion farmer had improperly withheld the cost of housing and meals from their pay, reducing it below minimum wage. Ramos-Barrientos v. Bland, No. 10-13412 (11th Cir., decided October 27, 2011). While the appeals court agreed with the lower court that the farmer could receive wage credits for meal reimbursements, it reversed the summary judgment that the farmer could receive wage credits for housing provided to the workers. The court also upheld the lower court’s determination that certain fees that third-party recruiters charged the workers in Mexico could not be recovered from the farmer who was unaware of them and had not agreed by contract to pay them. The workers and the Secretary of Labor, as amicus, contended that the farmer was “not entitled to wage credits for the…
The Equal Opportunity Employment Commission (EEOC) has filed a claim under the amendments to the Americans with Disabilities Act against a company that allegedly discharged a morbidly obese man. EEOC v. BAE Sys., Inc., No. 11-03497 (S.D. Tex., filed September 27, 2011). According to the EEOC, “at the time of his discharge, [Ronald] Kratz was qualified to perform the essential function of his job as a material handler II. BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job … The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.” News sources have reported that Kratz, who weighed 450 pounds when the military vehicle manufacturer hired him, gained 200 pounds over the 16 years he was employed. He claims that his weight never interfered with his job…
A California resident has filed a putative class action against Brinker International, Inc., alleging that when she worked for one of its Chili’s Grill & Bar Restaurants she was not paid minimum wage, because the company “fraudulently and maliciously caused Plaintiff and Class members to make up the restaurants’ cash shortages.” Eldred v. Brinker Int’l, Inc., No. 56-2011-00403808 (Cal. Super. Ct., Ventura Cty., filed September 15, 2011). According to the complaint, if a customer leaves the restaurant without paying or does not leave enough money to pay the entire tab, “it is defendant’s corporate policy to either inform the server that he or she has to pay for the walkout or that server will be written up and if it happens again that server may be terminated. Defendant uses the threat of termination to induce class members to pay for walkouts out of their own money.” Alleging failure to pay minimum…
The New York Times “Room for Debate” series recently tackled illegal farm labor, with six labor policy and economic experts discussing whether “strict enforcement of immigration laws would drive up prices for fruits and vegetables.” According to the commentators, eliminating undocumented workers in the agriculture sector, if possible, would have far-reaching consequences for growers, consumers and other economic sectors. As agricultural and resource economist Michael Roberts explains, the strict enforcement of immigration laws would not only raise domestic fruit and vegetable prices and likely increase cheaper imports, but “the employment effect for citizens could be smaller than some might expect, because illegal immigrants don’t just fill jobs; they also buy stuff with the money they earn, spurring demand and creating jobs in other parts of the economy.” Tamar Jacoby, president of ImmigrationWorks USA, also agreed that expelling immigrant farm laborers would affect “whole sectors of the economy,” since “every farm…
In an August 17, 2011, letter to the U.S. Department of State filed on behalf of more than 400 foreign guest workers recruited by the Council for Educational Travel, USA (CETUSA) to work for the Hershey Chocolate Co., the National Guestworker Alliance seeks the revocation of CETUSA’s sponsor status as a provider of J-1 visas, which allow foreign students to enter the United States for work, training and internships. According to the Alliance, the university students recruited to work for Hershey paid $3,000-$6,000 in pre-employment expenses and expected to receive wages and benefits comparable to U.S. workers and be provided with educational and cultural opportunities. Instead, they were paid $7.85 to $8.35 per hour, but after automatic weekly deductions for “above-market rent and other expenses, they net[ted] between $40 and $140 per week for 40 hours of work.” They were apparently “offered no cultural exchange of any kind.” Some of…
