When Santa Is Naughty, Does He Give Himself a Lump of Coal?

If so, then Santa should be giving himself a nice chunk of West Virginia’s finest to burn in his stove this Christmas.  According the Associated Press, recently, at a mall in Hingham, Massachusetts, Santa was barred from the mall and charged with indecent assault and battery after allegedly groping his 18 year old female elf. (Why Santa was not relaxing at the North Pole, but rather was working at a mall is not discussed in the article, but needless to say, this writer finds his pre-Christmas appearance deeply disturbing on a number of levels.) Santa stands accused of repeatedly pinching the buttocks of his elf and making suggestive comments.  Bad news for Santa, and quite possibly, very bad news for the mall, and the staffing company, if any, that employed Santa and contracted with the mall for his services. Santa has to answer to criminal charges, but Saint Nick’s magic fingers have likely subjected the mall to civil liability.

Under both Title VII of the Civil Rights Act of 1964 (“Title VII”) and several “Little Title VII” acts under state law, including the California Fair Employment and Housing Act (“FEHA”), an employer is, or may be, liable for the harassing actions of its employees against other employees.

The bar under the FEHA is actually quite a bit lower than under Title VII:  for one, it applies to “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract.”  In other words, there is a pretty good chance it applies to Santa, as above, when he is working as an employee of a staffing company that contracts with a mall, or merely as an independent contractor.  Also, under the FEHA, an employer has strict liability for the actions of a harassing employee.  So Santa’s bad acts can essentially become those of the mall.

This writer prides himself on seeking and finding the truth.  This odd tale of Santa working at a mall, particularly when he has so much else to do this month, spurred me to investigate this story.  As it turns out (and cover the eyes and ears of the children for this one), there is not, in fact, one “Santa,” but rather, hundreds of professional Santas roaming malls—and getting paid for it–throughout the United States in the month of December.  Although I am sure that this army of doppelgangers is masterminded by the one and only Santa, he apparently has employed his minions to run professional “Santa schools.”  The International University of Santa Claus, for instance, claims to have “graduated” over 2,600 professional Santas and Mrs. Clauses.

Dear readers, I am sure that these bombshell revelations regarding Santa threaten to overtake the real lessons and takeaways here, but be strong of heart and mind.  The most important thing to remember is that an independent contractor relationship, or the employment of temporary employees through a staffing agency, is no shield for liability.  The better plan is to avoid the naughty, and embrace the nice.  Merry Christmas.

- Monte Grix

The HR Grinch: The Pitfalls Of Businesses That Open For The Holidays

There was a lot of buzz in the weeks leading up to Thanksgiving—buzz which will continue through the Christmas holiday—about retailers and other businesses that not only opened on “Black Friday,” but also on Thanksgiving Day itself.  (Among developed or “first world” nations, the United States is the only country that does not guarantee paid vacation or holidays.)  This year, Staples, Toys R Us, Macy’s, Kohl’s, Office Max, Gap, Banana Republic, Old Navy, Kmart, Walmart, and Target were among the notable retail heavy hitters that opened on Thanskgiving—many of them, including Macy’s, for the first time ever.  Meanwhile, other retailers such as Costco, Patagonia, REI, P.C. Richard & Sons, Marshalls, Ross Dress for Less, TJ  Maxx, Radio Schack, Apple and Nordstrom elected to remain closed on the holiday, drawing kudos from employee rights groups and a growing chorus of others who think that retail operations on Thanksgiving is a bridge too far.

If money talks—and it certainly does—there is no reason to expect that this trend of holiday business openings will not continue.  The Cleveland Plain Dealer noted that, although Thanksgiving Day cannibalized Black Friday sales a bit, the combined two day gross sales across the United States checked in at approximately $22 billion dollars.  That will buy a few drumsticks and a whole lot of stuffing.

On the opinion/reader feedback pages of newspapers, and in the legislature of at least one state—Connecticut—there seems to be a growing grassroots effort to limit such openings, or to at least increase the required pay of such workers.  The Connecticut proposal, for example, calls for employees to receive triple their regular hourly wage. Of course, there are three New England states, Massachusetts, Rhode Island, and Maine, that still have blue laws on the books that prohibit most business openings on Thanksgiving, Christmas and major holidays.  (There are exceptions, of course, including public bath houses…one’s priorities must be in order.)

One would think, given the “blue” nature of California’s electorate, and given the relative strength of unions here, particularly the Service Employees International Union, that there would be a movement afoot to institute our own blue laws on retail openings.  Well, don’t hold your breath: although our own tepid blue laws prohibit alcohol sales between 2 a.m. and 6 a.m. (whatever are we going to do for those 4 hours?), and although state law also prohibits the mating of animals within 1,500 feet of a school, house of worship, or tavern (so many one liners to deliver, and such limited space), there is no indication that the State Legislature is going to lock the doors of Wal Mart on Thanksgiving, Thanksgivvukah, Christmas, or any other day.  So, if jostling in a human sea of shoppers on a major holiday is your idea of a good time, then let the good times roll.

- Monte Grix

NLRA Does Not Prevent Class Action Waivers But Overbroad Agreements Will Not Be Enforced

The Fifth Circuit Court of Appeals refused to enforce critical portions of the NLRB’s decision in D.R. Horton, Inc., including its decision that class action waivers in arbitration agreements violated the National Labor Relations Act.  The Fifth Circuit joins the Second and Ninth Circuits and numerous federal district courts in finding that federal labor law does not prevent employers from imposing class action waivers.  However, employers should consider revising their arbitration agreements based on the Fifth Circuit’s holding that the specific wording used by D.R. Horton could be misinterpreted by employees to prevent them from filing NLRB charges. Continue reading