October 29, 2014

EEOC, Braun Electric Company Settle Sexual Harassment Lawsuit

If plaintiffs' accusations in Equal Employment Opportunity Commission v. Braun Electric Company et al. are true, the claimant Samara Schmidt and others similarly situated were subjected to sexual harassment so severe and pervasive that it created a hostile work environment and effectively forced Schmidt to resign. The complaint refers to an array of extremely offensive sexual comments and behaviors, all of which were clearly unwelcome and brought many unanswered complaints to the company's managers and human resources staff.

The EEOC alleges that the company knowingly failed to investigate, prevent, or correct this pattern of continuous harassment by the manager at the center of the complaint. "Despite multiple complaints of sexual harassment...beginning in 2004," the state, "Braun finally got around to conducting an investigation in August 2010. Sadly, Bruan's HR Manager Wood conducted only a cursory investigation...purposefully ignoring evidence that Robertson's conduct was not an isolated incident directed at one employee. Despite being aware that other employees were present for Robertson's comment, HR manager Wood decided to just interview Miller, never entertaining the idea of interviewing percipient witnesses." Wood allegedly made "no efforts to ascertain whether Robertson had previously engaged in such conduct, as Wood 'just didn't think that was true...'" In the end Robertson received only a written warning that had no material consequences for his working life or career. There was no meaningful discipline, and no monitoring to ensure that the behavior would not continue. According to the plaintiff's and claimants' allegations, this was only the first of several complaints about sexual harassment that led to no action.

The terms of the settlement, approved by the District Court for the Eastern District of California on October 15, 2014, are not unusual for EEOC cases of this kind: claimants will receive monetary relief in the amount of $82,500; the defendant agrees to refrain from discrimination and retaliation for complaints made under Title VII; the defendant will retain and an Equal Employment Opportunity Monitor to oversee the administration of the settlement and "bear all costs associated with the selection and retention of the Monitor and the performance of his/her duties"; the defendant will be required to "review, implement, distribute and post its companywide policies and procedures against employment discrimination prohibited by Title VII," following the Commission's recommendations; the defendant will implement a sustained program of regular training for managers, non-managers, and human resources personnel regarding unlawful harassment and the proper handling of harassment complaints by employees; and the defendant will submit reports about the administration of these policies to the EEOC.

Anna Park, regional attorney for the EEOC's Los Angeles District, stated that "the policies, procedures, training, and monitoring that Braun Electric has agreed to put in place will go a long way toward protecting employees from harassment." Director Melissa Barrios of the Commission's Fresno Local Office added: "As agents of the employer, supervisors and managers should act as role models and promote an environment free of harassment. Employers should make sure that supervisory staff is trained not only on the laws against workplace harassment, but also on how to effectively prevent and address such issues."

If you are an employee and you believe that you have been subjected to sexual harassment in violation of Title VII of the Human Rights Act of 1964, please contact The Harman Firm, PC.

October 28, 2014

Jury Will Decide Whether 'Outside Sales Exemption' to FLSA Was Properly Applied to Plaintiff in FLSA Case

On October 21, 2014, the U.S. District Court for the Eastern District of Pennsylvania denied summary judgment to the defendant in the case Drummond v. Herr Foods Inc., et al. While the court suggested that there were several reasons that the plaintiffs might fall under the Fair labor Standards Act's (FLSA's) "Outside Sales Exemption," it nevertheless concluded that these reasons were not strong enough to declare victory for the defendant based on the pleadings alone.

The relevant statute states that "Drivers who deliver products and also sell such products may qualify as exempt outside sales employees only if the employee has a primary duty of making sales..." That is the main question the court, or the jury, will have to decide. The court began by explaining that under the statute it is the employer's burden to establish the applicability of the exemption after considering several factors; the employer seeking to apply the exemption "must prove that the employee and/or employer comes plainly and unmistakably within the exemption's terms." It then noted that there are few cases applying to this legal question. The defendant argued that the court should adopt the Fifth Circuit's ruling in Meza v. Intelligent Mexican Marketing, Inc., but the court rejected this argument based on a key difference between Meza and Drummond: unlike the route salespeople at Herr, those at Intelligent Mexican Marketing, Inc. were the only people in the company salespeople at the company. By contrast, plaintiffs Drummond, while she was responsible for doing sales work, was supported by in-house salespeople from several other departments. Further, Herr's route salespeople, when they did make sales arrangements, were arguably constrained in making those decisions to such an extent that a jury would be able to question whether selling product was the route drivers' primary responsibility. In many cases, Drummond's main responsibility was arguably not to make sales but to execute the conditions of sales that were made by higher-level salespeople at the company.

It is not disputed that the plaintiffs were provided sales training, and attended meetings for that purpose. However, the court notes, both these meetings and the plaintiff's job description included many other job functions unrelated to sales-vehicle safety, loading trucks, merchandising, computer and equipment use, etc. On the central question of the case--whether Drummond's primary duty as a route driver for Herr was sales--there remained some open questions for a jury to consider and decide.

According to the plaintiff's complaint there are a total of about forty route salespeople at Herr who are potential class members in her lawsuit. If a jury were to determine that they have been misclassified as exempt, the five named plaintiffs, and any additional class members, would stand to gain many hours of unpaid overtime.

If you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

October 24, 2014

Plaintiffs File Unopposed Motion for Approval of $12 Million Settlement in Wage and Hour Case Against J.P. Morgan Chase Bank, N.A.

On October 8, 2014, attorneys for a class of plaintiffs from twelve states filed a notice of motion requesting court approval of a $12 settlement in the case Evan Hightower et al v. Washington Mutual Bank et al. (Defendant was later terminated and replaced by J.P. Morgan Chase, N.A.) The lawsuit is a fairly straightforward Fair Labor Standards Act (FLSA) action brought against the financial giant by non-exempt employees from the company's retail branch offices-- Chase tellers, bankers, assistant branch manager trainees and sales specialists--who allege that they "(1) performed work 'off-the-clock' and, accordingly, were not properly paid all the wages owed for hours worked (including overtime hours worked); (20 were not provided duty-free meal periods and rest breaks; (3) were not provided accurate itemized wages statements; (4) were not reimbursed for all expenses incurred in the performance of their duties; and (5) were not paid all wages due upon cessation of employment."

This class action, filed in 2011 in the Central District of California, consilidates thirteen separate lawsuits filed against J.P. Morgan Chase Bank ("Chase") in the last two years, each involving similar allegations under the applicable state laws as well as the FLSA. Noting that Plaintiffs and their expert had reviewed over three million payroll records, over 7 million time-clock records, and over 204 million transactions records, the court approved distribution of $3,600,000 million for attorney's fees and $200,000 for plaintiffs' costs, as well as $25,000 for regulatory penalties and $222,500 for incentive and service awards for named plaintiffs.

The remaining $7,952,500 is to be distributed to the approximately 145,000 members of the settlement class according to a formula: the number of hours worked, multiplied by the average pay for their position at their location. The resulting total is then multiplied by the applicable State Modifier, in order to cover additional state law claims.

The original lawsuit filed by the plaintiffs in this case was against Washington Mutual Bank, et al., which then collapsed in the largest bank failure in U.S. history before before being being seized by the government and sold to Chase. In the end Chase surpassed Bank of America as the largest bank in the United States, with $2,520,336,000 in assets.

If you believe your rights under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

October 22, 2014

Appeals Court Vacates Summary Judgment in Misclassification Suit by GEICO "Telephone Claims Reps"

On October 10, 2014, the Second Circuit Court of Appeals revived a 2011 lawsuit by a potential class of "telephone claims representatives" (TCRs) from insurance giant GEICO, vacating an order of summary judgment and remanding the case back to the lower court. The district court for the Eastern District of New York had accepted the Defendant's argument that the employees in question fell under the administrative exemption of the Fair Labor Standards Act (FLSA), but the appeals court found that there were genuine disputes of material fact to be decided by the court regarding whether the exempt status of these employees.

According to binding regulations issued by the the Secretary of Labor, in order to qualify as exempt under the FLSA's administrative exemption an employee must satisfy several criteria. The relevant criterion here is that the exempt employee's "primary duty incude(s) the exercise of discretion and independent judgment with respect to matters of significance." In addition to these general criteria, the regulation contains specific provisions for insurance claims adjusters: "Insurance claims adjusters generally meet the duties requirements for the administrative exemption...if their duties include activities such as interviewing insureds, witnesses and physicicans; inspecting property damage; reviewing factual information to prepare damage estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation."

Despite the presumption in favor of adjusters being exempt, however, the appeals court notes that the Secretary's regulation goes on to state that the relevant section, § 541.203(a), "does not create a 'blanket excemption for claims adjusters,' but requires the courts to determine whether the claims adjusters "perform the listed tasks in a sufficiently discretionary way" to count as exempt.

The appeals court found "genuine disputes of material fact" concerning the applicability of these criteria to the class of plaintiffs. For one thing, several of the tasks enumerated in the relevant regulations do not apply--TCRs do not inspect property damage from their office cubicles, and do not appear to be involved in litigation. Also, the Court notes, there is conflicting testimony as to whether GEICO's supervisors monitor the TCRs' investigations, or whether GEICO's claim-adjusting software, ClaimIQ, eliminated discretion on the part of TCRs by limiting the questions they could ask and applying an "algorithm to calculate the range of GEICO's financial liability." There was also conflicting testimony regarding the extent of supervisors' control over the inputs that TCRs typed into ClaimIQ, or their involvement in negotiations about claims.

In the end, the court concluded that "the record could lead a reasonable jury to conclude that, to the extent that TCRs perform the tasks enumerated in § 541.203(a), they do so in too circumscribed and non-discretionary a manner to fall within that section's vision of a presumptively 'administrative' employee..." If a jury ultimately decides that these employees are not exempt from the FLSA's overtime requirement, GEICO might be liable for many hours of unpaid overtime by hundreds of its claims adjusters.

If you believe your rights to minimum wage or overtime pay under the Fair Labor Standards Act have been violated, please contact The Harman Firm, PC.

October 21, 2014

The Restraining Practice of Employers of Imposing Non-Compete Agreements on Low Wage Workers may be held Contrary to Public Policy and Unenforceable.

On July 18, 2014, employees at Jimmy John's restaurant filed a FLSA class action in the U.S. District Court of Northern District of Illinois against the sandwich chain alleging wage theft. The employees further alleged that the "Confidentiality and Non-Competition Agreement" Jimmy John's required employees to sign before they could start working was "oppressive, overly broad, unreasonable, against public policy, void as a matter of law and unenforceable."

Jimmy John's non-compete agreement restricts employees from working for any type of business for two years within a 3-mile radius of any of the 2,000 Jimmy John's Sandwich locations nationwide that generates more than 10% of its revenue from sandwiches. If enforced, the clause would dramatically limit a worker's ability to find employment after working for Jimmy John's.

Non-compete agreements are typically reserved for managers or high-level employees who could exploit a business's inside information by working for a competitor; however, Jimmy John's agreement applies to low-wage sandwich makers and delivery drivers.

Low-wage, interchangeable "sandwich artists" do not have the type of skills or insider information that justify such an agreement. The agreement's enforcement would merely thwart and frustrate employees' job searches. Such contracts are simply a novel attempt to control further and intimidate employees.

In order for the court to enforce the agreement, Jimmy John's will need to demonstrate that the agreement's purpose is to legitimately try to protect the company, and that the clause is reasonable and wouldn't put an undue burden on workers.

For instance, in Natural Organics Inc. v. Kirkendall, plaintiff brought action against former employee and former employee's new employer alleging a breach of the non-compete agreement. The employee worked for the company selling vitamins and dietary supplements. When he was hired for the position, the employee signed a nondisclosure and noncompetition agreement, which prohibited employment with a competitor of the company for a period of 18 months from the date of termination of employment, and where the employee is a sales person, for an additional 18 months within 300 miles of the boundaries of his or her territory.

The company alleged that the employee, due to his position as a salesman, had been exposed to reports containing detailed sales information concerning the company's customers. However, the court found that the employee, after leaving the company, did not physically appropriate, copy, or intentionally memorize any purported confidential business information. In addition, the court found that "an employee's recollection of information pertaining to specific needs and business habits of particular customers is not confidential." Further, the court stated that the company had failed to prove how the non-compete agreement was necessary to protect the goodwill of its clients or that the employee has used or threatened to use any protected trade lists or confidential customer lists. Therefore, the Supreme Court, Appellate Division, Second Department, New York held the non-compete agreement to be void and dismissed the complaint.

Courts not only look at the purpose and the time span of non-compete agreement, but also look at the geographical area to which the non-compete agreement applies. Courts usually give greater weight to the interests of the employer in restricting competition within a confined geographical area. For instance, in BDO Seidman v. Hirshberg, the Court of Appeals of New York declared part of a non-compete agreement to be overbroad because the company was a national firm seeking to enforce the agreement within a market consisting of the entirety of a major metropolitan area. A court may then get rid of the parts of the non-compete agreement that are unreasonable.

Non-compete agreements are only enforceable to the extent that they protect against misappropriation of the employer's trade secrets or of confidential customer lists, or protect from competition by a former employee whose services are unique or extraordinary. Indeed, under New York law, the general public policy favoring robust and uninhibited competition should not give way merely because a particular employer wishes to insulate himself from competition.

If you believe your rights have been violated, please contact The Harman Firm, PC.

October 20, 2014

All of Plaintiffs' Claims Survive Summary Judgment in Fair Credit Reporting Act Case Against Lowe's and LexisNexis

The Federal Court for the Western District of North Carolina denied summary judgment to the defendants on all counts in the case Brown, et al. v. Lowe's Companies, Inc. et al, granted leave for plaintiffs to amend their complaint, and set the stage for the lawsuit to expand into a potentially large-scale class action. Each of the three named plaintiffs alleges that the defendants violated the Fair Credit Reporting Act (FCRA) by taking adverse employment actions--in each case, denying them employment--on the basis of consumer reports purchased from Lexisnexis Screening Solutions.

According to the plaintiffs, because Lowe's routinely bases employment decisions on consumer reports, including criminal-background reports, they are subject to several provisions of the FCRA. Specifically, Lowe's must provide a copy of a report to the applicant prior to taking adverse employment action, along with a summary of their rights under the FCRA, and must give each applicant the opportunity to correct inaccuracies in his or her report. Plaintiffs allege further that Lowe's routinely and knowingly fails to provide reports and correction opportunities to the many thousands who submit employment applications to them and for whom they solicit consumer reports.

Plaintiff Jason D. Brown was denied employment on the basis of a Lexisnexis report that contained several entries of criminal-history information for a different person named "Jason Brown." He was denied employment before a copy of his report was sent to him.

Plaintiff Laszlo Boszo applied online for a job at Lowe's, and as part of that application ordered a background report from Lexisnexis. The report indicated that Mr. Bozso had been convicted of a felony in 1999, but failed to include the information that this conviction had been overturned on appeal in 2000. Mr. Bozso was never even provided with a copy of his report

Plaintiff Meris Dudzic also alleges that she was denied employment on the basis a report from Lexisnexis. She does not allege that the report contained inaccuracies, but claims that that she was never furnished with a copy of the report on the basis of which Lowes decided not to hire her.

The class of plaintiffs are all individuals who applied for employment at Lowes, had their applications denied on the basis of Lexisnexis consumer reports, and received copies of these reports either after their applications were denied or not at all. Plaintiffs further allege, in counts two through four against Lexisnexis, that the reporting company failed to provide notice that reports were being issued, failed to conduct reinvestigation of disputed information, and failed to follow "reasonable procedures" to ensure accuracy of the reports. Every one of these allegations survived the motions to dismiss, and if it is true, as alleged, that Lowe's handles most of their job applications in similar ways, the class of plaintiffs will likely include many thousands.

If you are an employee and you believe your rights under the Fair Credit Reporting Act have been violated, please contact The Harman Firm, PC.

October 17, 2014

EEOC Sues FedEx for Discriminating Against Dozens of Deaf and Hearing Impaired Package Handlers

Consolidating 19 individual cases that have been filed nationwide, the Equal Employment Opportunity Commission initiated the lawsuit EEOC v. FedEx Ground Package System, Inc. on September 30, 2014, on behalf of "a significant number" of deaf and hard-of-hearing employees and job applicants. The charging parties allege that the company has consistently and intentionally failed to provide reasonable accommodations to these employees, in violation of the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991.

In its complaint, the Commission argues that FedEx has failed to provide accommodations to hearing impaired Package Handlers "at all points in the employment life cycle," which includes (i) failing to provide communications-based accommodations such as American Sign Language (ASL) interpretation during new employee orientation, training, and mandatory meetings, (ii) ignoring multiple requests for such accommodation, (iii) failing to provide modified equipment such as vibrating scanners to enable hearing impaired employees to meet production quotas with the same level of effort as their co-workers, (iv) adding flashing lights to moving equipment for safety, and (vi) failing to initiate an interactive process regarding the need for these kinds of accommodations.

The ADA's implications for this situation seem clear: the company must "engage in good faith in an interactive process to identify effective reasonable accommodations" and then provide such accommodations unless it can show that doing so would not be an "undue hardship." After studying nineteen different facilities, the Commission concluded that FedEx has "engaged in widespread abandonment of its legal duties to engage in good faith in the interactive process with deaf and hard-of-hearing Package Handlers and deaf and hard-of-hearing applicants to the Package Handler Position and to provide effective reasonable accommodation to these individuals." Despite numerous complaints by hearing impaired Package Handlers, and despite they allege, the company has also failed to engage these employees in an interactive process. Thirty-two examples of such failures are cited in the complaint itself.

To cite just one typical example: Miriam Franson was terminated from her employment in Portland, Oregon for productivity issues. In a written complaint to FedEx, she challenged her termination for productivity and accuracy issues, explaining that her inability to rely on the scanner's audible "beeps" caused her to be slower and more error-prone.

EEOC Philadelphia District Director Spencer H. Lewis, Jr. said they filed this lawsuit "to remedy alleged pervasive violations of the ADA on a national level." Regional Attorney Debra M. Lawrence added: "Common sense, let alone federal legal requirements, would dictate that FedEx Ground should have provided effective accommodations to enable people with hearing difficulties to obtain workplace information that is disseminated in meetings and in training sessions. EEOC contends that by failing to do so, FedEx Ground has marginalized disabled workers and hindered job performance. This is a lose/lose scenario."

If you are an employee and you believe your rights under the Americans with Disabilities Act have been violated, please contact The Harman Firm, PC.

October 14, 2014

Possible Class Action in Wage-and-Hour Case Against Limousine Company in New Jersey

On October 8 2014, a Federal District Judge from the New Jersey District Court denied summary judgment to the Defendant in Naider v. A-1 Limousine, Inc. The motion for summary judgment was pre-emptive--the plaintiffs had not yet requested conditional certification, but the defendant argued that class certification could be denied because the facts from their pleading were not sufficient to support any argument for incorporating any of the plaintiff's co-workers into his lawsuit.

The court clearly rejected the defendant's motion: "Importantly, Plaintiff alleges that the subject policies in violation of the Fair Labor Standards Act-no overtime hourly wages and the use of flat fees/service charges as de facto gratuities--are practices that apply to all similarly-situated employees." "At this juncture," the court stated, "based on Plaintiff's pleadings, it is reasonable for the Court to infer that all drivers, employed by Defendant, were treated similarly." In short, then, the plaintiffs seem to be in good position to expand the case into a class action.

Plaintiff Natan Naider, who has worked for A-1 Limousine for more than five years, alleges that throughout that time he worked between 50 and 65 hours each week without receiving overtime pay. He was compensated at $7.50 per hour, regardless of the number of hours worked.

What makes the case interesting is that the defendant did pay Naider and his fellow drivers additional monies, labeled "gratuities," and claimed that this justified classifying them as tipped employees under the FLSA. This is likely to be the central issue in the case: the plaintiff argues that adding a service fee to the customers' bills does not make the company's drivers "tipped employees" under the law, even if the fees are in fact given to the employees who provide the service. If charging a service fee and labeling it a "tip" did not make Mr. Naider a tipped employee under the law, then he should have been paid one and one-half times his regular pay for the hours he worked above forty per week.

The Plaintiff's argument seems to be based on a generally correct interpretation of the relevant law. For example, FindLaw gives the following summary: "Service Charges vs. Tips: Mandatory service charges are not considered tips, according to the FLSA. That means a mandatory 15 percent service charge that is paid out to wait staff, for example, cannot be counted as tips received for use as a tip credit. The service charge may be counted as part of the employee's minimum wage and overtime requirements. However, employees who receive tips in addition to a mandatory service charge are considered tipped employees by the FLSA."

In fact, if the allegations in his complaint hold up, Mr. Naider appears to be entitled to a substantial amount of overtime pay, at least, and this would be true whether or not he was a tipped worker under the law. The plaintiff alleges that he never received one and one-half times his base rate of $7.50 per hour, even when he worked many hours in excess of 40 per week.

If you are an employee and you believe you have been denied your right to minimum wage or overtime pay under the Fair Labor Standards Act, please contact The Harman Firm, PC.

October 14, 2014

EEOC Sues FedEx for Failing to Provide Reasonable Accommodations to Deaf and Hard-of-Hearing Workers and Job Applicants

On October 10, it was announced that the EEOC has filed a lawsuit charging that FedEx discriminated against deaf and partially deaf packed handlers and job applicants for years. Package handlers physically load and unload packages from delivery vehicles, place and reposition packages in FedEx Ground's conveyor systems, and scan, sort and route packages.

The lawsuit arose as a result of 19 charges filed throughout the country citing discrimination against deaf and hard-of-hearing people by FedEx Ground. The agency consolidated these charges and conducted a nationwide systemic investigation of these violations. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland.

The EEOC says that FedEx Ground failed to provide needed accommodations to the workers such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The shipping company also failed to provide such accommodations during staff, performance, and safety meetings.

In addition to failing to provide communications-based accommodations for mandatory meetings, FedEx Ground refused to provide needed equipment substitutions and modifications for deaf and hard-of-hearing package handlers, such as providing scanners that vibrate instead of beep and installing flashing safety lights on moving equipment.

These widespread failures to provide reasonable accommodations occurred despite FedEx Ground having longstanding knowledge that it receives applications from, and has employed, a significant number of deaf and hard-of-hearing people in the package handler position throughout the country.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating on the basis of disability. The ADA requires employers to provide reasonable accommodations for applicants and employees with a disability unless the employer can show that doing so would be an undue hardship.

See the full article at EEOC.

If you believe your rights under the Americans with Disabilities Act were violated by your employer, please contact The Harman Firm, P.C.

October 13, 2014

Bus and Limousine Company Sued for Terminating Drivers Based on Age

On August 28, 2013, the EEOC filed the lawsuit in the Spartanburg Division of the U.S. District Court for South Carolina against a Spartanburg transportation company on behalf of two of its employees. Both plaintiffs in the case--EEOC v. Atchison Transportation Services, Inc.--are over seventy years of age, both worked as drivers, and according to the complaint each was told by management, more or less explicitly, that he was being terminated because of his age. If true, these allegations imply that the company violated the Age Discrimination in Employment Act (ADEA), which states clearly in 29 U.S.C. § 623 that "it shall be unlawful...for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." The plaintiffs won a settlement of $85,000, and the case was dismissed on October 2, 2014.

One plaintiff, William Thomas, claims that his Operations Manager informed him that he was terminating his employment because he was 75, although he had believed that Thomas was only 70. The same Operations Manager told Thomas that the company's insurance policy contained a clause that did not allow anyone to drive after he or she reached the age of 75. No problems with Thomas's performance at the job were ever discussed as part of this process.

The other plaintiff, Norris Locke, was terminated under similar conditions. Locke, a 76-year-old motor coach driver, was also told that the Defendant's insurance carrier did not want to insure him any longer so he was terminated. Again, no performance problems were discussed.

The Commission alleges in its complaint--and the Defendant's willingness to settle suggests it is likely true--that the insurance policy in question does not contain any age restriction for coverage.

Commenting on this case, EEOC Regional Attorney Lynette A. Barnes of the agency's Charlotte District states that "Employers commonly make assumptions about how long persons should work before retirement, including assumptions about their ability to work based solely on age." But "employers must be careful," she says, " as making such assumptions and then acting on them, can result in a violation of federal law."
In addition to the $85,000 in monetary damages, the settlement agreement also requires Atchison Transportation to adopt new policies to avoid age discrimination in the future, to train managers and employees in the avoidance of age discrimination, to post notices about this lawsuit in its Spartanburg facility, and to report all discharges of employees over age 40 to the EEOC.

Failure-to-hire age discrimination cases tend to be more common than wrongful termination cases. There is surely no shortage of people who have lost their jobs because their employer discriminated against them because of their age. But a company trying to justify terminating an existing employee can always try to manufacture a legitimate reason based on the person's employment history and work performance, whereas it can be more difficult to justify not having hired an older person with a far better resume. Age discrimination by employers worsens the lives of many people, but unfortunately the facts of a case are rarely as clear as in this one.

If you believe your employer has discriminated against you in violation of the Age Discrimination in Employment Act, please contact The Harman Firm, PC.

October 10, 2014

EEOC Sues Consulting Company For Firing Employee Because of Post-Partum Depression

On October 8, 2014, the EEOC filed a lawsuit against The Lash Group, a Charlotte, North Carolina based consulting company. The company refused to provide reasonable accommodation to an employee with post-partum depression. The employee was fired in violation of federal law.

The employee worked as a reimbursement case advocate at The Lash Group's Rockville, Md., facility when she went on maternity leave. She received short-term disability benefits while on maternity leave and advised the disability benefits carrier that she needed additional unpaid leave due to post-partum depression. The Lash Group initially fired her, but later extended her short-term disability leave. When the employee was medically released to return to work, however, The Lash Group did not return her to her position as a reimbursement case advocate because it had filled her position.

The company refused to transfer her to vacant positions for which she was qualified and instead forced her to find and compete for vacant positions within the company. The employee applied for three vacant positions for which she was qualified, however, she ended up being fired because of her disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating on the basis of disability. The ADA requires employers to provide reasonable accommodations for applicants and employees with a disability unless the employer can show that doing so would be an undue hardship. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland, Southern Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

"While pregnancy itself is not a disability under the ADA, some women develop pregnancy-related disabilities, such as post-partum depression, and are entitled to reasonable accommodations unless the employer can prove that doing so would be a significant expense or difficulty," said Spencer H. Lewis, Jr., district director of the EEOC's Philadelphia District Office.

EEOC Regional Attorney Debra M. Lawrence added, "It is incumbent on employers to provide reasonable accommodations for women who need them due to pregnancy-related disabilities, such as extending unpaid leave or transferring the employee to a vacant position for which she is qualified. Forcing an employee to try to find a new position within the company on her own does not meet the company's affirmative obligation to provide a reasonable accommodation by transferring her to a vacant job."

See full article at EEOC.

If you believe your rights under the Americans with Disabilities Act were violated by your employer, please contact The Harman Firm, P.C.

October 9, 2014

EEOC Sues Pharmaceutical Giant for Terminating Female Employee Disabled by Post-Partum Depression

On September 30, 2014, the Equal Employment Opportunity Commission sued AmerisourceBergen Drug Corporation ("Amerisource") for terminating Meron Debru, and failing to provide reasonable accommodation for her pregnancy-related disability, and ultimately terminating her employment, in violation of both the http://www.dol.gov/dol/topic/disability/ada.htm (ADA) and the Civil Rights Act of 1991.

The Commission claims in its complaint that Ms. Debru, a Reimbursement Case Advocate in the company's Rockville, Maryland facility, was granted leave for the birth of her child, from April 25 through June 6, 2012. However, on June 6 her doctor did not release her to return to work, citing concerns about possible post-partum depression. She was referred her to a Professional Counselor, who confirmed the doctor's suspicion by diagnosing Debru with post-partum depression. She then informed the company that she could not return to work, and would take additional unpaid leave.

When she did not return to work on July 15, 2012, the company filled Debru's position. Then on August 1, 2012 they sent a letter informing her that she was terminated, effective August 1, 2012, because she had exhausted her six months of leave under the FMLA. She then informed them that they had been incorrect, since she had not actually taken more than six months of leave, and that she had post-partum depression.

The company then sent Debru another letter stating that she had exhausted her leave, but could apply for open positions. Then on August 14 they reinstated her short-term disability benefits through September 5, 2012. On September 5 she was released to return to work, but Amerisource did not return her to her previous position; instead, she applied for three other positions at the company. She was qualified for each of these positions, but was offered none of them. The EEOC argues that the company was obligated under the ADA to offer Debru accommodation, leave, or reassignment; instead, they terminated her because of her disability.

Spencer H. Lewis, Jr., district director of the EEOC's Philadelphia District Office, comments that "While pregnancy itself is not a disability under the ADA, some women develop pregnancy-related disabilities, such as post-partum depression, and are entitled to reasonable accommodations unless the employer can prove that doing so would be a significant expense or difficulty.

Debra M. Lawrence, EEOC Regional Attorney, sums up the Commission's reasoning about this case, and the lesson they want employers to take from it: "It is incumbent on employers to provide reasonable accommodations for women who need them due to pregnancy-related disabilities, such as extending unpaid leave or trasferring the employee to a vacant position for which she is qualified. Forcing an employee to try to find a new position within the company on her own does not meet the company's affirmative obligation to provide a reasonable accommodation by transferring her to a vacant job."

Given the size, scale, and resources of the company, presumably it will be difficult for them to argue that accommodating Ms. Debru's pregnancy-related disability would have imposed an undue hardship. After all, they only would have had to move her to one of the two available positions in which she had expressed interest.

If you believe your rights under the Americans with Disabilities Act were violated by your employer, please contact The Harman Firm, PC.

October 6, 2014

NLRB Administrative Law Judge Finds that Burger King Owners Unlawfully Retaliated Against Employees Who Discussed Union At Workplace

On September 29, 2014, a judge for the NLRB decided against the respondents in the case against EYM King of Michigan, LLC (EYM), owners of 22 Burger King restaurants in the Detroit, MI area. The Court found that the company had violated employees' rights under the National Labor Relations Act (the Act) both in its direct actions toward the complainants and in its maintenance and enforcement of company policies that are in violation of the Act.

This case happened against the backdrop of large-scale changes in labor relations within the fast food industry. Recently there have been many well-publicized unionizing efforts by fast food and service workers across the country, and the Board recently made a key decision when it decided that the McDonald's corporation is to be treated as a joint employer with its franchisees in labor lawsuits.

According to the complainants' allegations in this case, one employee was threatened with termination if she continued to discuss wages or engage in union activity at work.

On another occasion, employee Claudette Wilson parked her car outside the Burger King restaurant as she was preparing to go to work, and gave a union questionnaire to a fellow employee who had just clocked out. Managers came out to the car and confronted Wilson, though not the other employee, accusing her of violating the company's policy against loitering. They ordered her to leave, which she refused to do. Later that day, after Wilson's shift started, her manager gave her a written warning for refusing to follow her instruction to leave. Angry, Wilson placed pickles on burgers, rather than in a neat square as the company requires, and the same manager sent her home two hours early.

Aside from being a direct act of retaliation, the judge said, the company's policies prohibiting loitering, etc., are themselves in violation of the Act. Generally, the workplace is the most apt place for employees to discuss their working conditions, and as such barring solicitation or union activity in the workplace "clearly adversely impacts employees' exercise of their fundamental statutory rights." The case law shows fairly clearly that employers are required to allow solicitation or union activity at the work site unless there is some special circumstance to justify restricting it. In this case, the company argues that its no-loitering policy is justified by the restaurant's location in a high-crime area. The Court was unpersuaded, concluding that the company's "professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious," since the company "has made no showing as to how this rule enhances safety."

The judge in this case also found many other policies maintained by EYM to be violative of the NLRA. To take one typical example, the company prohibits employees from engaging in "disrespectful conduct"--for example, protesting outside the workplace, as was done in the present case--or disseminating messages that the company might characterize as "abusive," "unprofessional," "disparaging," etc. Such limitations on the content of employees' public speech generally violates the Act, since they are broad enough to give employees the reasonable belief that they would be disciplined for discussing their working conditions or taking steps toward unionization.

Such policies are now against the law, and in the end the judge ordered the company to cut out large swaths of its anti-loitering and confidentiality policies and to post a notice of employees' rights and the outcome of this case.

If you believe your rights under the National Labor Relations Act have been violated, please contact The Harman Firm, PC.

October 3, 2014

E.E.O.C. Sues Suffolk Laundry Services For Negligently Handling Allegations Of Hostile Work Environment And Sexual Harassment

On January 30, 2012, the EEOC commenced an action against the Suffolk Laundry Services, Inc. alleging sexual harassment and hostile work environment in violation of Title VII of Civil Rights Act of 1964. Seven women intervened under Rule 24 of the Federal Rule of Civil Procedure adding state law claims pursuant to the New York State Human Rights Law alleging, in addition to sexual harassment, gender discrimination and retaliation claims against the President of the company, the Corporate Secretary and their son who also works for Suffolk Laundry. Sullivan Laundry is a commercial laundry business that provides laundry services for hospitals, nursing homes, and restaurants.

Everything started when the seven women filed charges of gender discrimination against Suffolk Laundry with EEOC alleging "misconduct" by Suffolk Laundry's mechanic who EEOC contends "had the power to influence the firing of employees." One of the female employees alleged that the mechanic discriminated against her because of her gender, made sexual comments and touched her in unwanted ways. For fear of losing hours at the job she was afraid of complaining about the mechanic's conducts. He would repeatedly touch her despite her several requests that he stop and continuously asked her for kisses. Further, the employee alleges that prior to filling the EEOC charge she had easy duties, such as feeding napkins and tablecloths into the laundry machine. However, after the filling with EEOC, not only was she subjected to harder working conditions but also she had her work hours reduced. The other female employees had similar allegations.

The President of Suffolk Laundry conducted an investigation that the EEOC called a "sham," and confronted the female employees, stating that if they did not like working at Suffolk Laundry to find another job.

The Defendants moved for summary judgment to dismiss the action and on October 1, 2014, the District Court for the Eastern District denied the motion stating that there was sufficient evidence on the record to permit a reasonable jury to find severe or pervasive conduct and to find Suffolk Laundry liable for the mechanic's conduct. The court condemned the fact that Defendants had no written or oral policies regarding sexual harassment, no adequate procedure in place for employees to report sexual harassment, and did not properly respond to the female employees' allegations of illegal conduct on behalf of their mechanic.

If you believe your rights under Title VII of the Civil Rights Act or under New York State and City Human Rights laws have been violated, please contact The Harman Firm, PC.

October 2, 2014

EEOC Sues Papa John's For Firing Down Syndrome Employee After Refusing Reasonable Accommodation of Job Coach

On September 25, 2014, the EEOC initiated a lawsuit against the "integrated enterprise" of three companies that own several hundred Papa John's pizza restaurants. The Commission brings this action in the U.S. District Court of Utah on behalf of Scott Bonn, a Papa John's employee with Down Syndrome. They allege that Bonn was denied reasonable accommodation and ultimately terminated because of his intellectual disability, although he "was and remains capable of performing the essential functions of that job with reasonable accommodations."

Plaintiffs allege that in early 2012, Brent Dunham, one of the Defendants' operating partners, visited one their restaurants, where he saw Mr. Bonn folding boxes with his job coach standing beside him. When he was informed that Bonn was employed by Defendants and had requested the reasonable accommodation of a job coach, Mr. Dunham contacted the Defendants' (shared) human resources department and recommended that they terminate Bonn. On February 10, 2012 they did so, thereby allegedly violating several relevant sections of the ADA by (a) denying and interfering with Scott Bonn's employment opportunities based on his need for reasonable accommodation; (b) terminating Scott Bonn's employment because of his disability and/or because of his need for reasonable accommodation; and (c) terminating Scott Bonn in retaliation for his requests for reasonable accommodation.

Statements by EEOC attorneys make clear that this case is part of a larger agenda of requiring employers to accommodate the intellectual disabilities of capable workers. EEOC Regional Attorney Mary Jo O'Neill states: "Many disabled persons are qualified, ready and willing to work. All they need is an equal opportunity. Job coaches are one form of reasonable accommodation that allows employees with intellectual disabilities to be able to work." Rayford O. Irvin, District Director of the EEOC's Phoenix District Office, adds: "Employers who terminate people because of their disability or because they requested a reasonable accommodation are violating federal law. We will continue to vigorously pursue our mission of fighting employment discrimination on all fronts."

Employers are rarely obligated by law to hire intellectually disabled people. Disabilities such as down syndrome or autism spectrum disorders often give prospective employers a convenient explanation for their decision to hire a different candidate. Perhaps it is cheaper and easier for companies not to bother trying to accommodate workers who are often noticeably disabled, and limited in the tasks they can perform. One has to worry that a case like the present one carries some risk, if employers decide that hiring intellectually disabled people increases their exposure to lawsuits. To some extent we must hope that employers will share the larger goal of making opportunities for employment available to disabled people.

The EEOC requests that the defendants be ordered to change their policies and compensate Mr. Bonn for the loss of his job, to offer him reinstatement, and to compensate him resulting emotional and psychological injuries.

If you believe your rights under the Americans with Disabilities Act have been violated, please contact The Harman Firm, PC.