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2003 turned out to be another terrific year for our annual employment-case awards. We may not be the Oscars or the Emmys, but the list has developed a growing following. Without further ado, the winners: MAY I HAVE THIS DANCE? 10. A California appellate court ruled in Moody v. Razooly that exotic dancers at a Eureka, Calif., strip club are covered by the state’s minimum-wage law, but their damages had not been calculated correctly by the trial court. Exotic dancers Ashley M. Moody and Crystal Hurley were not “artists” exempt from the state’s minimum-wage requirements because they had no professional dance training. After all, the court reasoned, “nude or semi-nude dancing can be performed by a person endowed with general manual ability.” What’s more, the club owner was entitled to a setoff for tips resulting from all those lap dances. STAND AND BE COUNTED 9. The National Labor Relations Board held in Longshoremen Local 1575 (Navieres, NPR Inc.) that a union did not breach its duty of fair representation when it asked members to vote with their feet. At a meeting to ratify a new contract, 80 percent stood up to express dissatisfaction with a contract provision. The union president then quickly said that all those in favor of ratifying the new contract should stand — and announced that the contract had been ratified, given the vast majority then on their feet. The court side-stepped this “internal” matter. A TOAST TO PRETRIAL DRINKING 8. In Murphy v. Air Transport Local 501, a federal judge in Connecticut found that an employee fighting a discharge based on cocaine use got a fair hearing, even though his representative consumed a double vodka and tonic before the closing argument — because no harm was shown. Bottoms up. EXCLUSION ANXIETY 7. The 8th U.S. Circuit Court of Appeals found against the plaintiff in Bridget Jones v. Reliant Energy-ARKLA. It didn’t buy Jones’ argument of discrimination when she was kept on the job instead of being laid off and given a severance package, like her lucky co-workers. BATTER UP 6. A federal judge and baseball fan in Rhode Island ruled in Mann v. Lima and Sovereign Bank Corp. that a female supervisor for a local bank did not engage in sexual harassment when she repeatedly complimented one of her female staffers and asked her for hugs. The plaintiff had “struck out on her claims.” The defendants “pitched extensive evidence,” causing the plaintiff to “strike out.” Such a claim is “like the infield fly rule” — all the elements must be present. While the plaintiff was “in the right ballpark,” her allegations “were minor league.” Play ball! RIP VAN WINKLE HAD IT RIGHT 5. An Illinois court, in Philip Wrobel v. Illinois Dep’t of Employment Security, ruled that a Chicago Tribune employee who overslept did not intentionally do so and was entitled to unemployment benefits after he was fired for tardiness. Venturing into the metaphysical, the court reasoned, “[W]e have no conscious acts by plaintiff, rather, we have an unconscious act: he over-slept.” He did not “chose to sleep beyond the time he would need to in order to get up and make it to work, or call in, on time.” After all, “one does not typically forget to do something intentionally; forgetting is a matter of carelessness.” Wake us if this one is reversed on appeal. NUDE MODELS BARE THEIR WOES 4. Complaining of low pay, cold rooms and air laden with paint fumes, models who pose nude at a Philadelphia art school voted to join a union. The National Labor Relations Board in Moore College of Art and Design and District Council 47 had earlier rejected the school’s argument that the models are independent contractors. Stripped to its essence, this is what union organizing is all about. FIT TO BE TIED-OR NOT 3. Jennifer Jo Smith sued her film director for injuries incurred during an explicit San Francisco photo shoot for Slave Labor Productions, known for its bondage films. It seems that Smith hurt her left arm, wrist and hand while bound, gagged and hanging from ropes several feet off the ground during filming. As the arbitrator wrote, “claimant (unable to [talk] with a gag in her mouth) was left hanging as ropes were unevenly loosened and she was not provided effective bracing.” The arbitrator found that Smith, star of such classics as “Asses in the Air,” was entitled to damages, giving a new meaning to binding arbitration. BLONDES HAVE LESS FUN 2. A Philadelphia judge in Shramban v. Aetna Inc. found that being blonde is not protected under Title VII of the Civil Rights Act of 1964, and granted summary judgment for Aetna on discrimination, hostile environment and retaliation complaints by a blonde employee that were based on dumb-blonde jokes by her supervisor. Will Congress please close this loophole? CROSSING THE PANTY LINE 1. In EEOC v. Rio Bravo Int’l Inc., a restaurant manager was accused of sexual harassment by five female employees, who were awarded $1.55 million. The employees of a restaurant in Clearwater, Fla., showed that for two years, the manager forced them to submit to “leg-shave checks” and “panty checks,” in which he groped their buttocks to ensure that they weren’t wearing any “granny panties.” Thorough, yes. Wise, no. Gerald D. Skoning is a senior partner at Seyfarth Shaw in Chicago.

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