When Katharyn Felicia was told that she and other cocktail waitresses at Resorts Casino Hotel were to pose for photos in skimpy new flapper costumes, she thought it was to evaluate the sexy black outfits to make sure they fit and looked right.

What the women didn’t know, she said, was that the photo shoot would determine which of them would still have jobs when the 10-minute encounter was over.

Felicia, who had been with Resorts since the day it opened in 1978 and was twice named employee of the month, was one of 15 cocktail waitresses fired last month from Resorts.

The stated reason, they say, was for “violating uniform standards.” The real reason, they suspect, is that management wanted to get rid of older women who were judged not sexy enough to fit in with the new image the casino is trying to project.

Seven of the fired waitresses are suing Resorts, claiming age and sex discrimination. The others, including Felicia, are considering legal action.

“It was very degrading to women,” said Felicia, 53. “I feel they never gave me a chance. We had no idea that photo shoot was fighting for our jobs.”

Resorts said it gave each employee a fair evaluation and said the costumes are an integral part of its rebranding effort. The casino has adopted a roaring ’20s theme after the popularity of the hit HBO series “Boardwalk Empire,” based on Prohibition-era Atlantic City’s reputation as the vice capital of the East Coast.

“A critical aspect of theming is the new costumes front-line employees will be wearing, including the new cocktail server costume,” Resorts spokeswoman Courtney Birmingham said. “This particular cocktail server costume was chosen as part of the larger plan to unveil the new Resorts Casino Hotel as a destination for fun, excitement and a one-of-a-kind experience.”

The costumes include short, skin-revealing black dresses with deep open backs. Waitresses also wear fishnet stockings and ornate jazz era hats.

“All cocktail servers were given individual consideration and the selection process was conducted in a fair and objective manner,” Birmingham said. “We empathize with the cocktail servers who lost their jobs and gave them hiring preference in other open positions at Resorts. Some took advantage of this offer and some did not.”

Attorney Kevin Costello, who represents seven of the laid-off servers, said the casino’s action was “just more of the same age and gender stereotype discrimination.”

“Apparently, a modeling agency panel of some sort has decided that the servers didn’t have the right look to continue in their jobs despite having the skills to do so,” he said.

In 2008, two former cocktail servers at Atlantic City’s Borgata Hotel Casino & Spa settled a multimillion-dollar sex discrimination lawsuit they brought against the casino. They claimed the casino humiliated costumed waitresses — known as “Borgata Babes” — by imposing weight limits, encouraging breast augmentation surgery and emphasizing looks over job performance.

Felicia told of a late February photo shoot that was so stressful it made her break out in hives as she struggled to put on a costume that fit properly. She said each of the women who had to be photographed was made to enter a small changing room with the only light coming from a small window above. It was so dark that a small mirror was nearly useless.

Costumes were strewn about the floor, and she and others had to kneel or crawl around to try to find a costume to wear.

“I was forced to get undressed in front of six co-workers, one of them being my manager,” she said. “I had no top on because you can’t wear a bra with the uniform. I had stockings on, but that’s it. It was the most embarrassing thing I’ve ever had to do.”

The costumes’ sizes were not marked. The first one she tried on was too big, she said. The second one, which she eventually wore, gave no support to her bosom.

“I did not feel I looked very good in it,” Felicia said. “I was very nervous. I broke out in hives as I was walking out onto the floor. I was losing it, I was stressing so much.”

The photographer told her she was not allowed to pose. Rather, he took pictures from three angles: with her facing forward, backward, and from the side. The photos were shot from the neck-down, with Felicia holding a sign with a number on it that would identify her once the photos were evaluated.

Although it did not happen to her, she said some co-workers were told to spread their legs a bit, or turn their rear ends toward the camera.

“It’s hard to believe that in this day and age women are still put through this,” she said. “I’m a good employee. I did my job well; many managers have told me that. I just don’t understand this. I’m still in shock.

“I understand that cocktail-serving projects sex appeal, you have to be pleasant and radiate a party atmosphere,” Felicia said. “I get that. I’ve done it for nearly 33 years. If it’s all about what men want, well, men like all different kinds of shapes and sizes.”

Copyright © 2011 The Associated Press. All rights reserved.

How Old is Legally “Old”?

While many might recognize that business cannot use “age” as a criterion for employment decisions, including hiring, promotion, discipline or termination, the federal and California protections actually only apply to persons “of a certain age.” Workers under 40, the relatively “young,” do not have such rights. Employees aged 40 or over, considered legally “old,” are protected.

Federal age discrimination protections – including the Age Discrimination in Employment Act of 1967 (ADEA) — also only apply to companies with 20 or more on payroll. This is different than most other federal workplace anti-discrimination laws (race, gender, religion, etc.) which apply to businesses with 15 or more employees. See, e.g., Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

All California’s workplace anti-discrimination law – the Fair Employment and Housing Act (FEHA) — applies to employers with five or more on payroll.

According to the federal Equal Employment Opportunity Commission (EEOC), ADEA protections include:

– Apprenticeship Programs – Employers with apprenticeship/internship programs should not restrict qualified applicants over age 39 from participation. Only in rare circumstances when age is shown to be a “bona fide occupational qualification” (BFOQ) may an age limit be included. For example, a bar serving alcohol can legitimately restrict under-age apprentices or interns;

– Job Notices and Advertisements – It is generally unlawful to include age preferences, limitations or specifications in job notices or advertisements. For example, it is generally not a good idea to promote that “youth” or any particular age-range is a condition for hiring. Again, only in those uncommon settings were age is a valid BFOQ may an age limit be included;

– Pre-Employment Inquiries – Similarly, except where a certain age range or age limit is a legitimate BFOQ, an employer should not request age information from job applicants. Asking for a person’s age could be seen as evidence of an employer’s intent to discriminate. However, a company can obtain such information after hiring as long as the data gathering is not selective and is needed for a lawful purpose, for example insurance coverage.

– Benefits – The federal Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. However, as the cost of providing certain benefits to “older” workers (40 or over) is sometimes greater, Congress did include an exception. Employers may reduce benefits available to older workers as long as the cost is no less than the cost of benefits available to younger workers;

– Special Waiver Requirements – A company can offer a departing worker extra “severance pay” in exchange for that worker’s written promise never to bring a legal claim against that business or its management (a “release and waiver”). However, such a waiver must comply with specific requirements in order to validly release ADEA claims. The waiver must:

▪ be in writing and be understandable;

▪ specifically refer to ADEA rights or claims;

▪ not waive rights or claims that may arise in the future;

▪ be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled;

▪ advise the individual in writing to consult an attorney before signing the waiver; and

▪ provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

This article is only a general overview of federal and California workplace age discrimination laws. A knowledgeable employment law attorney should be able to guide personnel management through the perils and pitfalls of this sometimes very sensitive area.

A strong policy prohibiting harassment and discrimination is worth little if an investigation over a complaint is badly handled. Among the important rules:

Don’t Delay – Failing to start or complete an investigation promptly creates a potential claim that the company condoned the alleged misconduct, thus increasing the risk of a legal claim;

Ensure no retaliation – Employees have the right to complain over perceived wrongful or unfair workplace conditions and should not be criticized, marginalized or disciplined for doing so. Retaliating against a complaining worker is a separate basis for a lawsuit, even if the employee had no basis for speaking up. Of course, falsifying information in a complaint is a disciplinary offense;

Investigator’s Only Agenda is a Competent, Fair Process and Result – The person responsible for handling the investigation should have no personal stake in the parties or the outcome. Obviously, assigning the alleged harasser’s closest friend in the workplace as investigator is a disaster by definition. The investigation must include the opportunity for the accused to fully address all assertions made as well as the accuser to respond to potentially relevant information obtained from the accused and others;

Document, document, document – The investigatory and management should compile and maintain a thorough investigatory file on the matter. It should include: (1) a copy of the original complaint; (2) detailed notes of each interview; (3) the name of each witness, whether that person was interviewed, and if not, why not; (4) any notes or documents provided by any participant in the investigation; (5) a final report summarizing findings and conclusions; and (6) planned follow-up monitoring;

Make a determination and communicate the results – The investigation should result in a clear written determination of the validity of claims based on the credible facts obtained. An investigator has the ability and obligation to judge such credibility as objectively as reasonably possible. Management should monitor and confirm the fairness of the process prior to release of the results. Key elements of an investigative report include:

• The time of, and information regarding, the initial complaint;

• A summary of the allegations of the case;

• A summary of the interviews conducted and documents compiled and reviewed, including credibility assessments;

• A summary of the investigator’s factual findings; and

• A statement of the recommended remedial action, if any.

Follow Up – Check in periodically with the complaining employee to ensure there has been no further harassment or discrimination and that there has been no retaliation and obtain that person’s written confirmation of the information supplied.

It is also sound practice for company management to include capable legal guidance through the entire process.

Same-Week Makeup Time in California

California is one of a minority of states that requires higher pay for daily overtime, after eight hours of labor. This could discourage companies from permitting employees to make up time taken for important engagements by adding hours onto another day’s work. However, following certain guidelines will permit a worker to work past the eight hour threshold to make up time without requiring the business to pay the higher overtime compensation rate:

• The makeup time cannot be for more than 11 hours on any workday or for more than 40 hours in a workweek;

• The makeup time must be in the same workweek as the day in which the employee took the time off;

• Normally an employee must provide the employer with a signed, written request for each occasion that he or she desires to make up time. However, if an employee knows that he or she will be requesting makeup time over several weeks on a recurring basis, the employee can ask to make up the missed work time for up to four weeks in advance;

• A business is free to inform employees of the makeup time option, but cannot encourage or otherwise solicit workers to do so; and

• The employer may not make the makeup time a condition of the employee’s request for time off.

It is of course vital that the parties keep accurate time records that clearly designate extra hours that are makeup time paid at the employee’s normal rate and those that are paid at the overtime rate.

For assistance implementing a workable makeup time system in California, contact a attorney specializing in that state’s labor law.

Best Practices for Fair and Equal Employment

In our richly diverse society, it is perhaps no surprise that national origin workplace discrimination claims have been increasing steadily across the country since 2001.

It is unlawful for business to make a significant employment decision – e.g. hiring, advancing, demoting, or firing – based on a worker’s country of origin, culture, accent, ethnicity or assumed ethnicity. For example, an employer is prohibited from only hiring applicants born in the United States.

Other instances of unlawful workplace actions prohibited by U.S. Civil Rights Act of 1964 (as known as the “Title VII” law) as interpreted by the courts:

• Discrimination based on citizenship: Unless required by law, it is unlawful to hire only U.S. citizens or lawful permanent residents.

• Harassment: Supervisors, co-workers, company clients and customers may not create a hostile, oppressive environment for an employee based on his/her national origin, ethnicity, or accent.

• Language requirements: While employers may require “English-only” communication if that is necessary for the contact of business, a company may not impose that requirement for employee breaks or other off-periods. Also, an employer may not make employment decisions based on a person’s accent unless that accent significantly interferes with the function of a job.

Prevention is the best cure for any bad management habits. An experienced employment law attorney can advise on and help implement appropriate policy changes.

Photo: Ellis Island Photography Collection, New York Public Library

California Employers Must Carry On-the-Job Injury Insurance

California businesses must carry workers’ compensation insurance for every employee, even just one. Group or personal health insurance is not a substitute.

Workers’ compensation is oldest social insurance program in the U.S., adopted by most states in early part of the 20th century. The coverage is intended to ensure employees receive swift and sufficient medical treatment for on-the-job injuries and job-related illnesses. It is a “no-fault” insurance, i.e., it does not matter whether the employment-related accident or sickness was the due to the employee’s inattention, an unsafe workplace condition, or an act of God, the coverage applies.

Workers’ comp insurance provides six basic benefits: medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits, vocational rehabilitation, and death benefits.

Non-California employers may need to carry workers’ compensation for workers who are regularly employed in California or whom entered an employment contract here.

An employer may purchase workers’ compensation insurance from any of the privately licensed insurers authorized to write policies in California. A list of authorized insurers can be found on the California Department of Insurance website.

If you are a business owner or manager with questions about the legal requirements of workers’ compensation, contact an experienced employment law attorney.

Additional Resources:

Employer Rights Blog Article (Dec 30, 2010): “New Workers’ Compensation Regulations in California”

California Division of Workers’ Compensation homepage

California Division of Workers’ Compensation FAQ

Photo: The Library of Congress

Re-Employment and Pay Requirements for Returning Service Members

Soldiers returning from active duty to civilian life are protected by a number of federal and state laws. This includes reservists and National Guard members.

Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), it is unlawful for an employer to deny initial employment, reemployment, promotion, or any employment benefit because of the person’s obligation to perform military service.

According to the USERRA, returning service members are “required to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status, and pay, as well as other rights and benefits determined by seniority.” This is known as the “escalator principle” because the employer is obligated to keep the person in the seniority progression even though that individual is away on active military duty. USERRA also requires an employer to make significant efforts to train or retrain returning veterans to refresh or upgrade their skills.

Under the federal Americans with Disabilities Act, employers must seek to make reasonable accommodation for returning employees who have become disabled during their service. If the employer is unable to make reasonable accommodation for the person’s former position, the business is obligated to place him or her in another in another position for which the person is qualified or could become qualified. A disabled veteran also retains rehiring and placement rights for two years after his or her service ends.

These are just a few of the rules at play. State law may provide even more stringent requirements. An experienced employer rights attorney can help when management is confronting military leave issues.

A Workplace Lesson on Confirming Grounds for Termination

A hospital lab technician and army reservist sued his employer claiming two of his supervisors openly discriminated against him because of his military status and duties. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to treat military veterans fairly, prohibiting terminations and other major employment decisions motivated by a worker’s military status.

The reservist asserted his supervisors had voiced their displeasure with his military status with one of them intentionally scheduling him for work on his training weekends. He also claimed his supervisors issued groundless disciplinary warnings which ultimately and unfairly caused his termination by HR.

Although HR was not motivated by hostility regarding his reservist duties, he asserted the personnel manager (and thus the company) was the “Cat’s Paw” for the two supervisors. As the fable goes – sometimes wrongly attributed to Aesop — a monkey persuades a cat to grab roasting chestnuts from a fire which the monkey then eats (or steals), leaving the cat nothing except a burnt paw. Thus, the supervisor (monkey) purportedly asked the HR manager (cat) to issue the termination (chestnuts). HR and the company, unaware of the supervisor’s underlying discriminatory motives, get “burnt” when the HR manager approves the decision.

In Staub v. Proctor Hospital (2011) 131 Supreme Court 1186, the U.S. Supreme Court ruled that an employer can be liable under the “Cat’s Paw” theory if:

• A supervisor performs an act motivated by unlawful bias (in this case anti-military bias);
• The act is intended to cause an adverse employment action (in this case termination); and
• The act is a legal cause of that adverse employment action.

The Supreme Court decision expands the protections against workplace discrimination. Under these circumstances, HR’s lack of knowledge of the discrimination or a HR manager’s mistaken basis for a termination may no longer be relevant or controlling.

What should employers do now?

• Be on the alert for potential biases in supervisors;
• Institute and enforce formal complaint procedures directing employees to promptly report any supervisor’s wrongful conduct;
• Allow the employee being terminated a fair chance to present his or her side of the story;
• Before implementing a requested adverse employment decision, HR should confirm by objective evidence a supervisor’s asserted basis for the decision;
• Thus, avoid automatically signing off on a supervisor’s recommended adverse action, especially where such decisions are based on subjective criteria; and
• Train supervisors and managers on anti-discrimination and retaliation laws as well as how to properly communicate disciplinary action and job expectations.

It is of course also a good idea to seek knowledgeable labor and employment legal counsel to help management navigate potentially troublesome terminations.

California’s Department of Labor Standards Enforcement website explains that a non-union employer has full discretion: a) to close the business on any holiday; b) to give employees the day off for any particular holiday; or c) to pay employees taking a holiday off. In this state, hours worked on holidays are not considered differently from any normal work day. Thus, as long as no overtime is involved, the law does not require any extra rate of pay for holiday work.

Union employees may have special terms under collective bargaining agreement. Many employers may provide (and thus must provide) holiday pay by policy but, again, it is not a legally required benefit.

Contact an experienced employment law attorney if you would like assistance issuing a policy covering time-off and pay for holidays.