Legal Briefings

SUPERVISOR’S UNCHECKED HARASSMENT
In Sheri Minarsky v. Susquehanna County (Pennsylvania), Minarsky alleged that over four years, her supervisor had repeatedly made unwanted advances, including by touching her inappropriately, attempting to kiss her more than 10 times and sending her inappropriate emails. Throughout the four years, she never reported that her supervisor’s actions made her uncomfortable. She filed suit against the county alleging state and federal claims for sexual harassment. The county moved for summary judgment based on the Faragher-Ellerth defense. Because Minarsky did not report the conduct for four years, and once she did, the supervisor was terminated, the county argued that it could not be held liable for the supervisor’s harassment. The Third Circuit Court found it could not conclude that the county exercised reasonable care to prevent the harassment or that Minarsky unreasonably failed to report her supervisor’s conduct. Minarsky testified that she did not report her supervisor because management knew the supervisor had harassed at least four other women in the office but failed to take action. Even though the county had an anti-sexual harassment policy, reprimanded him twice, and terminated him in response to Minarsky’s complaint, the court held a jury could conclude the county failed to effectively deal with the supervisor’s pattern of misconduct. Sheri Minarsky v. Susquehanna County, No. 17-2646, 895 F.3d 303 (3rd Cir. 2018)

IMPACT: Employers should not ignore or minimize less serious incidents of sexual harassment, particularly where there is a pattern of misconduct. Allowing such conduct to continue unchecked could result in employer liability.

EVERY MINUTE COUNTS IN CALIFORNIA
Donald Troester was a shift supervisor for a Los Angeles Starbucks. Starbucks’ software required Troester to clock out of every closing shift before initiating “close store procedure.” After completing the procedure, Troester was required to activate the store alarm, exit the store and lock the door. Troester wasn’t compensated for the 4 to 10 extra minutes per shift he spent performing these duties. Troester filed a class-action lawsuit under California’s state wage and hour statute. Starbucks filed a motion for summary judgment, arguing that the time Troester claimed was minimal and trivial and not compensable. The district court agreed with Starbucks but on appeal the U.S. Court of Appeals for the Ninth Circuit certified the following question for the California Supreme Court to answer: whether small minute windows of uncompensated time give rise to a claim. The high court held that California’s wage and hour statute provided more protection than the federal FLSA and did not incorporate the FLSA’s de minimis doctrine, whereby small working windows of minutes or seconds were trivial time and not compensable. The court held that even mere minutes of work beyond the scheduled hours are a burden that should not be the employee’s to bear and are recoverable. Troester v. Starbucks Corp., 421 P.3d 1114 (Cal. 2018)

IMPACT: Employers should re-evaluate their time-keeping policies and procedures in order to make sure that an employee is compensated when performing job duties.

Rachel L. Schaller and Daniel Saeedi are attorneys at Taft Stettinius & Hollister LLP. To comment, email editors@workforce.com.