Legal Updates – November 2022

News

First Woman Testifies in Harvey Weinstein’s Los Angeles Trial

The first victim testified in former film producer Harvey Weinstein’s Los Angeles trial early in the last week of October. Mr. Weinstein has been accused of multiple counts of rape and sexual assault, and the prosecution has lined up eight female victims to testify against him.[1] The first witness, known as Jane Doe #1, is a foreign actress and explained to the jury that she was assaulted by Mr. Weinstein in February of 2013 while on a business trip in L.A.[2]

Jane Doe #1 said that she had only met Mr. Weinstein briefly before the trip, and the two had “barely” spoken to each other. She testified that after she walked the red carpet and attended a festival event, she returned to her hotel room in Beverly Hills. Shortly after, she said that she received a call from the hotel lobby saying she had a guest, who was Mr. Weinstein. Jane Doe #1 said that she was not expecting Mr. Weinstein, and she did not know how he knew of her whereabouts or what hotel she was staying at.[3] She said that Mr. Weinstein came upstairs and knocked on her door loudly. When she opened the door, she said he forced his way into her room. During her testimony, the witness was in tears and was visibly upset. Jane Doe #1 told the jury in horrifying detail how Mr. Weinstein forced her to give him oral sex, raped her, and that she was “terrified” for the entire experience.

During opening statements on Monday, Mr. Weinstein’s defense team told the jury that years after Jane Doe #1 said she was assaulted by Mr. Weinstein, she attended a party thrown by his company and posted a picture of herself at the event on social media.[4] The witness, when asked about this, said that her public relations manager posted the photo without her approving the caption, which was normal in her business as a public figure.

After the assault, Jane Doe #1 said that she had difficulty proceeding with her normal life, and that she experienced “dark days.” She said that she started drinking more than she had in the past, and some days she could not bring herself to shower or brush her teeth. The witness said she was “destroying” and punishing herself because she felt guilty about what had happened. She testified on the stand that it was difficult seeing Mr. Weinstein in public spaces and at work events, and that each time she saw him, she felt like she could not breathe.

Jane Doe #1 said that in 2017, her daughter experienced sexual harassment in her school, and that their conversation prompted her to share that she had been raped by Mr. Weinstein. Jane Doe #1 said that her daughter convinced her to file a police report about her incident with Mr. Weinstein, and she did so in October 2017.

Seven more victims are set to testify in the upcoming weeks. Mr. Weinstein is already serving a 23-year sentence after being convicted of sex crimes in New York in February 2020.[5]

Fox News Pays $1 Million Penalty for Sexual Misconduct Allegations

In a settlement which was finalized earlier this summer, Fox News has agreed to pay a $1 million penalty as part of a settlement reached with the New York Commission on Human Rights.[6] The case was a result of a “cascade of sexual misconduct allegations” several years ago within the network that led to the departures of Roger Ailes, Fox News co-founder, and Bill O’Reilly, long term anchor.[7] The Commission on Human Rights is responsible for enforcing New York City’s anti-discrimination laws in workplaces, housing, public services, and other spaces. It launched an official investigation into Fox News in December 2018, following the reports of several employees. The Commission’s chair and commissioner, Carmelyn P. Malalis, said in an interview that this is the “largest civil penalty that has ever been levied by the City Commission on Human Rights.”[8]

The settlement prevents Fox News from including in new employment contracts a clause requiring confidential arbitration in cases where an employee lodges a complaint under the city’s Human Rights Law for the next four years. Additionally, it requires the network to advance several anti-harassment trainings and prevention measures.

In the past few years since the scandals broke, Fox News has hired a new human resources team and enhanced its sensitivity training requirements, among other measures that aim at reforming its workplace culture. In a statement, Fox News said that it was “pleased to reach an amicable resolution of this legacy matter.”[9]

U.S. Department of Labor Announces Proposed Rule on Classifying Employees and Independent Contractors

On October 13, the U.S. Department of Labor published a proposed rule revising the Department’s guidance on how to determine who is an employee or independent contractor under the Fair Labor Standards Act (FLSA).[10] The new proposed rule seeks to combat employee misclassification, which is a “serious issue that denies workers’ rights and protections under federal labor standards, promotes wage theft, allows certain employees to gain an unfair advantage over law-abiding businesses, and hurts the economy at-large.”[11]

This Notice of Proposed Rulemaking (NPRM) would rescind a 2021 rule on the topic and replace it with an analysis for determining whether a worker is an employee or an independent contractor that is more consistent with the FLSA, and longstanding judicial interpretation.[12]

Specifically, the proposed rule would do the following:

  • Align the department’s approach with courts’ FLSA interpretation and the economic reality test.
  • Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA.
  • Ensure that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors.
  • Revert to the longstanding interpretation of the economic reality factors. These factors include the investment, control and opportunity for profit or loss factors. The integral factor, which considers whether the work is integral to the employer’s business, is also included.
  • Assist with the proper classification of employees and independent contractors under the FLSA.
  • Rescind the 2021 Independent Contractor Rule.

The Department’s Wage and Hour Division has considered the feedback shared by stakeholders in forums during the summer of 2022 and now will solicit comments on the proposed rule from interested parties. Comments should be submitted online at the following link: https://www.dol.gov/regulations. Comments may also be submitted in writing to the Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Ave. NW, Washington, DC 20210.[13]

[1] https://www.theguardian.com/us-news/2022/oct/25/harvey-weinstein-trial-witness

[2] https://variety.com/2022/film/news/harvey-weinstein-trial-first-jane-doe-cries-1235413385/

[3] Id.

[4] Id.

[5] Id.

[6] https://www.nytimes.com/2021/06/29/business/media/fox-news-fined-sexual-harassment.html

[7] Id.

[8] Id.

[9] Id.

[10] https://www.dol.gov/agencies/whd/flsa/misclassification

[11] https://www.dol.gov/newsroom/releases/WHD/WHD20221011-0

[12] Id.

[13] Id.