American Apparel's Business a Little Too Casual?

A woman fired from designer sweats giant American Apparel has sued her former boss for sexual harassment. Mary Nelson claims that the head of the clothing company, known for making all of its clothes in downtown LA and paying its employees a living wage, made the workplace uncomfortable with his sexual conversation and attitude. Nothing remarkable there. So why am I tell you about it? From the ABA Journal [citing the LA Times]:

Because he worked as a fit model, and was designing an underwear line, there was a legitimate business reason for him to appear at work meetings in the office and elsewhere wearing only his underwear, contends Dov Charney, the founder and chief executive of American Apparel Inc. Furthermore, lawyers for the casual fashion giant contend in court briefs that the "sexually charged workplace" Charney created was appropriate "where employees of both genders deal with sexual conduct, speech and images as part of their jobs" because of the suggestive marketing routinely used to sell the company's garments, reports the Los Angeles Times.

Actually, that might not be too far off. If you don't know American Apparel, just look on the back page of your local, free urban bohemia magazine and you should find one of their bizarre, sexual, amateurish ads for 80's inspired sweats or gold lamé swim trunks for guys.

Even if trying on underpants was part of your job (it's gotta be better than document review), sampling the goods in an accounting meeting - especially when you're the president of the damn company - is probably not the best idea. But then, what do you expect from a guy who says the following in his own defense?

I weigh 155 pounds, I'm five-10. Am I not fit? Is there any job that is not appropriate for me to do? All the big guys did exactly what I do. Versace—they all wore their own bathing suits," he says, referring to designer Gianni Versace, who was murdered in 1998.

Umm... I have an American Apparel polo. It's really nice, but Versace may be a stretch.

This isn't Mr. Charney's first time at this particular pink-skivvied rodeo: He was sued by multiple women in 2005 for sexual harassment, claiming he asked them to hire women he could have sex with, and exposing himself to employees. Two of those cases have settled, but one is still pending, as of last year.

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FirmSuit of the Day: Holland & Knight Blocks Jumps like Dikembe Mutombo

In case you missed it, this week is "well, you taught them how to sue" week at CE. Every day we're going to feature a little nugget of law firm internal strife that's ended up in court, and we're kicking things off with a couple of big names: Holland and Knight.

The story [via Blog of Legal Times]: Patricia Dillman, a former Holland & Knight litigation paralegal, is suing her old firm for mucking up (read: tortiously interfering with) her imminent transfer to another global powerhouse, Hughes Hubbard. Apparently, the gigantic firm responded to Dillman's 2-week notice by conflict-checking the paralegal's new position against her work at H-K. When a red flag came up based on some environmental work, Holland contacted Hughes, which promptly pulled the plug on the job.

The Good Parts: Most people's first question is what the big deal is about conflict-checking a departing employee. Well, nothing. When they're lawyers. But Dillman was a paralegal - she wasn't bound by the professional ethics rules that usually trip up travelling lawyers - and anyway, wall-offs are run-of-the-mill in firms the size of these two. Otherwise, no one could ever lateral. So, why did HK conflict-check her to begin with?

For the juice, keep reading.
First off, this was no ordinary paralegal. Dillman was the head of the litigation department's support group, and her new gig was set to bag her $200k a year in Hughes' NY office. Not the kind of person you want to let walk into another multinational firm and start shaking hands. Second, that "environmental work" she was allegedly a part of was the sinking of the oil tanker Prestige, the worst environmental disaster in the history of Spain. And her client was...well...Spain. From the BLT Article:

Spain said the [American Bureau of Shipping], which checks the structural fitness of ships, was negligent in classifying the 26-year-old vessel as fit to haul fuel. Six months after the bureau gave clearance, the Prestige became caught in a storm and Spain refused to give the ship port. The Prestige eventually split in half and sank.

So, Holland represents Spain. Hmm. [Insert joke of choice]. Anyways, guess who reps the bureau? Yep:

According to the complaint, Holland partner Brian Starer told Hughes Hubbard attorneys [representing the ABS] during a deposition in the Reino de Espana case that Holland might try to disqualify the firm from the lawsuit if Dillman began working there.

This case is a seesaw. If Dillman's telling the truth, she was a tragic victim of an underhanded litigation strategy. If not, then does that mean Holland was justified in notifying its opponent of a non-attorney's potential conflict? Dillman's alleging that she did little more than copies and letter writing in the Spain suit, which puts Holland's comments to Hughes in a bad light.

If she's telling the truth, she's a true tragic victim, complete with her own Shakespearean ending: a judge in New York dismissed the entire action by the Spanish government a few days ago, holding Spain has to pursue the case in its own courts.

More tomorrow.

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Ho Ho Whoa!

Daniel Schwartz at Connecticut Employment Law Blog (which graphically puts our fledgling rag to shame) has brought a very important, under reported holiday issue to everyone's attention - sexual harassment of mall Santa Clauses.

Yep. Apparently, creepy women older girls have been waiting in line to talk to Santa, hoping to raise their rank on the naughty list. From the Hartford Courant (via the post):

A 33-year-old woman who posed for a picture with Santa Claus at Danbury Fair Mall over the weekend wanted more than a photo, police said.

Sandrama Lamy inappropriately touched a 65-year-old worker dressed as Santa on Saturday while sitting on his lap, police said. She is charged with fourth-degree sexual assault and breach of peace, both misdemeanors.

While the post points out that the real Santa is "presumably...an independent contractor," his buddies that fill in for him in malls may be employees. So? Liability? Schwartz says probably not, because the DOL regs require that the employer know or should have known the harassment was likely. From the post:

I'm just taking a hunch here, but I'm imagining that this kind of harassment of Santa Claus is pretty rare; thus, its unlikely the employer could have foreseen this kind of harassment. (Readers, please let me know if I'm off base here). And now, after the incident has occurred by this customer, the police have arrested the woman, making it unlikely to occur from her again.

For her part, according to an interview with the Danbury News-Times (via Above the Law), Lamy says didn't do anything wrong. She didn't even sit on his lap:

"Why would I do this? There were so many people there. If he (Santa) needed a few extra bucks I would have given it to him," Lamy said. "I've never been involved in a crime or anything. This is shocking to me."

Ok, that's got to be the quote of the year. Still, what the hell was a 33 year old lady doing in line to see Santa in the first place? You're asking for trouble is all I'm saying. (And you thought that Wizard of Oz kid with the goggles from a Christmas Story was creepy.)

I took my dog to see Santa at PetSmart last year. That gig's probably pretty safe. Maybe you get peed on a little, but I'm thinking mall Santas have to worry about that one anyway.

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The Job Bored:

• EU seeks to expand job portability by recognizing degrees and skills across borders. EU News and World Report ready with arbitrary ranking system to fill in oppressive educational class structure. - International Herald-Tribune

• If you were a "Democratic" Think Tank constantly defending yourself from accusations of being a haven for neo-conservatives, what would you do? Publish an op-ed called "The Myth of Middle-Class Job Loss" in the WSJ. Duh.

• "Um, the handicapped spaces are for armless Iraq war veterans/tank arsenal employees with real handicaps. You're fired." - Detriot Free Press.

• Looking for a job in real life is so 2005. - Daily Telegraph

• $5 Million a year's not insulting. It's the $3 million in incentives that really burned Joe Torre's britches. - NY Times

• Outsourcing singing telegrams. Seriously. No joke necessary. - Gatehouse News Service

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We Didn't Realize the NLRB was THAT Management Friendly...

Getting off the bus to get to work this morning, there was a giant, inflatable rat outside an office building in the loop. This is not that unusual (especially here in the Chi), it just means a union is striking outside a job site.

Some things about this particular strike seemed odd, though. For one thing, the picketers were in collared shirts and slacks - some were wearing suits. We don't know of any unions with strike-wear dress codes (though there may be something to that...). Then there was the fact that the strike was outside the University Club building - which is a typical breakfast meeting/cle event locale for attorneys...

Then we noticed the signs - "NLRB: Practice What You Preach."

That's right, folks - the National Labor Relations Board Union is currently picketing the NLRB for failure to recognize it as a certified bargaining unit. Right now, all we've got is the strike flyer, so our information is understandably one-sided (and scant)[ed. note: see updates below]. But we have an email in to the Union directors and we're going to try to contact someone at the Board to get a reaction.

Here's what we know:
[ed. note - see new post here]
- This appears to be a national issue - the flyer quotes Ronald Meisburg, the NLRB General Counsel, as saying "I am refusing to bargain over conditions of employment." (which, whoa - hopefully not, you know? That's pretty much the ballgame)
- The FLRA did apparently certify a bargaining unit, and they did issue a ULP against the Board (that's irony, right?) - according to the union flyer.

If there's something else you know - or want to know - put it in the comments or email us, and we'll get on it.

[UPDATE: 10:23 am] - A little google searching led us to this Press Release from August that we think is the foundation for today's activity. Apparently the NLRB Union petitioned the FLRA to combine some previously separate units, which it did. Then GC Meisburg emailed employees saying he wouldn't bargain with the newly combined unit. The union picketed (we think in New York) in August. The Release goes on to promise more:

Union sources said this would not be the last demonstration demanding
Meisburg’s resignation. They indicated that the Union has plans to picket
at other public events Meisburg attends and will continue until he either
resigns or agrees to obey the law.

So is that why they're at the University Club? Is GC Meisburg gracing us in the Windy City with his presence? Looks like we may have to crash a party or two this morning...

[UPDATE: 11:44 am] - Ok. We've been doing some digging, and it seems like maybe we're a little late to this party. The Union's picketed in a few places, and caused the New Jersey regional office to cancel its 50th Birthday celebration in September by promising to picket Meisburg's presence at the event. Bob Gilson at FedSmith (where we found the Press Release) has a series of articles explaining the history of this sordid, labor law love-triangle, which is 90% assured of making its way into court. Needless to say, we're on pins and needles.

Expect a full post on this mess later in the day.
[UPDATE: Ok, so later in the day actually means four days later or so, but here's the promised post, for those still interested.] Any more updates on today's picketing will be tacked on here.

The text of the strike flyer appears after the jump.


Here's the Text of the Flyer:

National Labor Relations Board
Refuses to Obey Federal Labor Law

On August 19, 2007, the Federal Labor Relations Authority issued an unfair labor practice complaint alleging that the National Labor Relations Board violated its obligation under federal labor law to bargain with the National Labor Relations Board Union, the union of NLRB employees, in the bargaining unit certified by the FLRA.

NLRB:
- Refuses to recognize the certified bargaining unit of its own employees
- Refuses to bargain with the Union
- Ignores FLRA decision
- Violates federal labor law
- DISRESPECTS ITS OWN EMPLOYEES!!

NLRB General Counsel Ronald Meisburg, the chief enforcer of the National Labor RElations Act, told its employees, "I am refusing to bargain over conditions of employment." He has told employees that he will not obey the federal labor law. He has said that he will refuse to bargain with the Union in the bargaining unit certified by the FLRA.

The NLRB is violating the law by refusing to bargain with the Union. If the NLRB does not honor the rights of its own employees, how can employees count on the Board to protect THEIR rights?

WE DEMAND
THAT THE NLRB OBEY THE LAW AND
BARGAIN WITH THE UNION!

NATIONAL LABOR RELATIONS BOARD UNION

Updates will come before the jump.

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