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. ยง 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.

September 30, 2014

District Court Denies Summary Judgment; Deputies can Sue County Sheriff for Age Discrimination

On September 15, 2014, the Federal Court for the Southern District of Georgia denied summary judgment for the defendant on all but one part of the plaintiffs' complaint in Dyals et al v. Gregory et al. In this age discrimination case, plaintiffs claim that newly-elected Sheriff Tommy Gregory terminated both plaintiffs Roger Dyals and Dee Grant Porter because of their age, in violation of the Age Discrimination in Employment Act (ADEA). Plaintiffs also allege they were subject to unlawful retaliation when they were not called back to their jobs after filing age discrimination complaints with the EEOC. Dyals also asserts a claim for unpaid overtime under the Fair Labor Standards Act (FLSA), along with a connected FLSA retaliation claim. The court rejected both of these retaliation claims, but found that the plaintiffs had provided plenty of evidence to support prima facie ADEA and FLSA claims.

The plaintiffs were both deputies in the Camden County Sheriff's office, Dyals for about nine years and Porter for about six years, until both were laid off on June 29, 2011. Sheriff Gregory justified the layoffs of these two employees by pointing to a reduced department budget, which required him to decrease labor costs, claiming that the budget had decreased by about $600,000 from the previous year.

Section 623(s) of the ADEA states that it is "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." A plaintiff may establish a claim of illegal age discrimination by citing either direct or circumstantial evidence. When the evidence is circumstantial, as in this case, the court employs the McDonnell-Douglas burden-shifting framework--the plaintiff first establishes a prima facie case of discrimination, then the employer asserts some legitimate non-discriminatory reason for the adverse employment action, then the plaintiff tries to show that this proffered non-discriminatory reason is pretextual and that the real reason for the employer's action was discriminatory.

The Sherriff's defense was that the Plaintiffs were "not qualified for their positions" and "have not produced evidence showing that he intended to discriminate." The Court rejected both of these claims. First, evidence was provided showing that both plaintiffs had received excellent evaluations and reviews, and were regarded as exemplary employees. Second, plaintiffs were able to point to many comments, both direct and indirect, revealing that the Sherriff was clearly motivated to replace older employees with younger ones. Finally, the fact that defendant Gregory hired several people--all younger than the plaintiffs--days before the layoffs, and eighteen more just after, belies his claim to have been responding to a budget shortfall.

It is important when a Court in this situation points out the weakness of the defendant's stated reasons for having taken the adverse employment actions at issue, because one way that plaintiffs can support their case is by showing "weaknesses, implausibilities, inconsistencies, or contradictions' in the defendant's proffered explanation." In this case, the plaintiff seems to have a strong argument that the stated reasons for their termination were pretextual, and the real reasons illegal.

If you believe you have been the subject of age discrimination in violation of the ADEA, please contact The Harman Firm, PC.

September 27, 2014

Court Conditionally Certifies Class and Denies Summary Judgment for Defendant in FLSA Lawsuit Against New York Moving Company

On September 15, 2014, the federal court for New York's Southern District denied summary judgment for the defendants in the case Gaspar v. Personal Touch Moving, Inc. et al. and authorized plaintiff's notification of a few dozen potential opt-ins.

In their complaint, the plaintiffs allege several different violations of the Fair Labor Standards Act (FLSA) and corresponding sections of the New York Labor Law (NYLL). They allege (i) that their employer, Personal Touch Moving, Inc. ("Personal Touch"), regularly failed to give employees legally-required minimum wage, overtime, and spread of hours pay, and (ii) that managers of the company illegally retained all tips left by customers for movers and drivers, thereby violating the (informally-established) employment contract. Related claims include illegal deductions in wages for "facial hair penalties" and deductions for the purchase of company uniforms.

In their motion for summary judgment, the Defendants argue that the case should be dismissed under the Colorado River abstention doctrine so as to avoid requiring the court to spend its time and resources on "parallel proceedings" involving "contemporaneous exercise of concurrent jurisdiction" by state and federal courts to decide the same legal questions involving the same parties. The court rejected this argument because the plaintiff in the federal case is not a party to the state case, which implies that these cannot be parallel proceedings in the relevant sense. The legal question is nearly a non-starter.

The court next explained its decision to conditionally certify the class of plaintiffs similarly situated to plaintiff Gaspar, having found that plaintiffs' presentation of the facts of the case met the minimal burden of presenting actionable claims in their pleadings.

Even if a class of plaintiffs is eventually certified, some of their FLSA claims seem potentially problematic. In particular, the Motor Carrier Exemption (MCA) in the FLSA might make these employees exempt from the requirement of overtime pay. This is one of the defendants' affirmative defenses in the answer to the complaint. On the other hand, plaintiffs might be able to show that their clients were employees "not engaged in 'safety affecting activities,'" because they only loaded and unloaded vehicles without being responsible for deciding how safely to distribute the load. Or they might succeed in showing, as they suggest several times in the complaint, that nearly all of the jobs done by plaintiffs were within the state of New York and involved no interstate travel and are thus not subject to the MCA.

On the other hand, if we accept plaintiffs' accusations about Personal Touch managers keeping tips that customers intended to give movers, these would seem to be clear violations of at least the New York Labor Law:

Section 196-d. Gratuities. No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.

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

September 25, 2014

EEOC Sues GAF Materials Corporation for Disability Discrimination

On September 18, 2014, the Equal Employment Opportunity Commission (EEOC) filed a complaint in the case Equal Employment Opportunity Commission v. GAF Materials Corporation (GAF). GAF is accused of discriminating against employee Irvin Carter by denying him the opportunity to retain his job by "bumping" a less-senior employee and taking his or her job, as allowed under the company's collective bargaining agreement, during a layoff. The EEOC alleges that GAF denied Carter this opportunity based on incorrect and extremely outdated information about his ability to do a different job given his well-documented disability.

Mr. Carter had been injured while working at GAF in 2003, resulting in the amputation of his right hand below the wrist. The loss of his hand substantially limited his ability to perform manual tasks at first; most relevantly, he could only lift 5 pounds with his prosthesis and 11 pounds with both arms. These limitations rendered him unable to perform his old job, but since he had seniority over many other workers he was transferred to a different job that he could perform.

Meanwhile, he continued to go through physical rehabilitation and therapy, and he eventually became able to lift 90 pounds, which is the limit for his prosthesis. Meanwhile, the company went through a succession of layoffs. During the first layoff, in 2012, Carter bumped a less-senior worker to obtain a forklift driver position. Then, during a second layoff later in 2012, Carter was himself bumped from this position by a more senior co-worker. He still had seniority over many other employees, so he sought to bump a different employee and claim one of the many other positions he was qualified to perform. However, the company then decided that he was not physically qualified for any other available positions because of physical limitations and effectively terminated his employment.

If the Commission's allegations are true, this is a fairly straightforward case of discrimination based on perceived disability, in violation of Title III of the ADA, since the company's reason for terminating Carter was their belief that he was unable to perform a different job. One problem, though: the basis of the company's belief was his nine year old functional capacity summary, completed just after his accident. The company was fully aware that Carter's abilities had changed dramatically since that summary was written; in particular, his forklift driver position had a fifty pound lifting requirement and this had never presented a problem. Robert Dawkins, regional attorney for the EEOC's local Atlanta District Office, sums up the lesson: Companies should not rely on severely outdated information to take adverse actions against employees with disabilities...Instead, the employer must take into account the actual job duties and the employee's present ability to perform the job."

In short, for a disability to be a legitimate reason to deny someone a position, it must be a current disability that really does render him or her unable to perform the duties of the job.

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.

September 23, 2014

EEOC Sues BNV Home Care Agency, Inc. for Gathering Employee Health Data in Violation of the Genetic Information Nondiscrimination Act

On September 17, 2014, The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against New York home health care agency BNV Home Care Agency, Inc. ("BNV") for violating the Genetic Information Nondiscrimination Act (GINA). The complaint alleges that the company gathered extensive information from employees and prospective employees about their personal and family medical history. By allegation, complainant Yelena Sheglov and thousands of similarly-situated individuals have been asked to "indicate illnesses experienced by you or your family" by checking boxes on a questionnaire containing a list of 29 health conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy, and cancer. The Commission further alleges that "Defendant BNV requests that all applicants who are given conditional offers of employment complete this health assessment form when the applicants are offered employment but before they are officially hired." Then, "once hired, all employees are required to complete the form annually."

Section 202(b) of Title II of the GINA makes it "unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee," except under a list of specific circumstances. EEOC New York Regional Attorney Robert D. Rose stated in a recent press release that "GINA is clear: employers cannot ask applicants or employees for their family medical history." He continues: "the EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees."

Employers have been on notice about this for some time. The law was enacted in 2009 and, as attorney Konrad Batog, trial attorney assigned to the BNV case, states: "employers by now should have reviewed their procedures and practices to make sure that they or their agents do not violate the law by asking for family medical history."

The law is an attempt to shield individuals from forms of discrimination made possible by advances in genetic technology which allow researchers and doctors to test for more and more health conditions that would have implication for an employer. An older example cited in the law itself is sickle cell anemia, but now a person's risk for conditions from Huntington's disease to cancer can be determined through genetic testing, and an increasing number of cases are arising in which people have suffered adverse employment actions when such information was disclosed to their employers.

Another motivation for the law is less direct, but no less important: the possibility of having genetic information misused tends to discourage people from consenting to participate in medical research, or getting tested for detectable conditions in the course of their regular medical care.

In the EEOC's action against BNV, the defendant would be required (i) to change its policies and stop gathering genetic information from employees, (ii) compensate Sheglov and similarly situated individuals for their pecuniary and non-pecuniary losses, (iii) to pay any regulatory damages owed, and (iv) to pay the Commission's costs in the lawsuit.

If you are an employee and you believe your medical history has been unlawfully acquired by your employer, please contact The Harman Firm, PC.