September 2011 Quick Clips

EEOC Sues For Religious Discrimination On Behalf Of Job Applicant, September 28, 2011

On Monday, the EEOC sued a Maryland senior living home for religious discrimination on behalf of a Muslim job applicant. According to the Complaint filed in federal court in Baltimore, the applicant applied for a position as a certified nursing assistant and wore a traditional Muslim hijab (a religious headscarf) during her meeting with defendant’s Director of Health and Wellness. The interviewer asked the claimant if she was willing to remove the hijab, and expressed concerns that elderly residents might be afraid of the claimant and that the scarf may interfere with claimant’s duties. The claimant denied that the hijab would pose any problems with the residents or otherwise interfere with her responsibilities. Nevertheless, the senior living home did not select the claimant for one of the positions.

After settlement talks failed, the EEOC brought suit pursuant to Title VII of the Civil Rights Act of 1964, which requires an employer to reasonably accommodate an employee’s religious beliefs. The EEOC seeks injunctive relief, as well as front pay, back pay and punitive damages.

We Need “Young Creative People” Not Proof of Age Discrimination, September 21, 2011

by Frank L. Kollman

A federal court in New York has found that pro-youth remarks are not enough to establish that an older worker was the victim of age discrimination. Mickelsen v. Bertelsmann Inc., No. 08-cv-10138 (S.D.N.Y., September 19, 2011).

Apparently, someone had commented that startup companies did well because they are “full of young creative people who are determined to turn their ideas into products in the shortest time.” A year later, a corporate official was heard to say that the company “must concentrate much more on becoming attractive for top young talent.”

In a display of commonsense and rationality, the Court held that valuing youth does not mean that the company does not value maturity and experience. Every company needs young workers to replace older workers who retire or move on, and young workers do tend to have a different view than workers who have been with the company for many years.

While we do not recommend starting a campaign to recruit ONLY younger workers (still a problem under the Age Discrimination in Employment Act), it appears fine to notice that younger and older workers bring different skills to the workplace and acknowledge the value of having both.

Abolish the NLRB? Bill Introduced by SC Congressman, September 20, 2011

by Frank L. Kollman

Rep. Trey Gowdy of South Carolina has introduced a bill to abolish the National Labor Relations Board and split its duties between the Department of Labor (running elections) and the Justice Department (handling unfair labor practice cases). While the bill has no chance of passing and being signed by the President, maybe it will create more debate on the role of the Board.

Ironically, the Board used to be criticized and avoided by labor unions because the Board was viewed as ineffective. Under the Obama Administration, the Board has again become popular with Big Labor. Perhaps it’s because the NLRB is packed with anti-business Democrats.

The Board has adopted a posting requirement that is being attacked in the courts. More details on this website to follow.

Senate Holds Hearing on Workers with Significant Disabilities, September 19, 2011

by Frank L. Kollman

Senator Tom Harkin of Iowa is the king of woo and magic, and the enemy of science. Because of Harkin and the legislation he has pushed through Congress, people can be misled into buying vitamins, supplements, and so-called medical treatments for diseases those items could not possibly help, much less cure. Harkin is a dangerous man. His Senate committee is trying to cause more mischief in the area of so-called disability discrimination. A hearing was held last week on workers with significant disabilities.

Harkin said in his opening statement: “In the last three years, statistics show us that people with disabilities have been leaving the labor force at a rate more than 10 times the rate of the non-disabled population. This is unacceptable. I might even go so far as to say I think this is gross discrimination. We need to take action to change this trend.” He did not say, however, whether the trend was because people wanted to stop working and collect disability benefits.

Witnesses at the hearing said that we need to amend the nation’s laws to create more opportunities in the workplace for people whose disability needs “intensive or extended support services.” In other words, instead of just making reasonable accommodations, employers should be forced to make extraordinary accommodations.

The ADA is already more broad than it needs to be. Employers struggle with the ADA; it does not need to become a full employment act for disabled Americans.

House Approves Amendment to NLRA, September 16, 2011

by Clifford B. Geiger

On September 15 the House of Representatives passed the “Protecting Jobs From Government Interference Act” (H.R. 2587). This measure would amend the National Labor Relations Act by explicitly limiting the authority of the National Labor Relations Board to order certain remedies in unfair labor practice cases. The bill provides:

“That the Board shall have no power to order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment, to rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or persons who shall be engaged in production or other business operations, or to require any employer to make an initial or additional investment at a particular plant, facility, or location.”

The bill was introduced in July in reaction to an unfair labor practice complaint brought against Boeing Company. The complaint is based on an allegation that Boeing expanded its operations at a nonunion facility in South Carolina, rather than add production capacity in Seattle, where employees are represented by a union. The union claims Boeing’s decision was taken to retaliate against Seattle employees for prior strikes. Proponents of the bill, however, view the decision to issue a complaint against Boeing as another example of the government overreaching into a corporate business decision.

230 Republicans and 8 Democrats (all from right to work states) voted in favor of the bill, which now moves on to the Senate.

American Jobs Act Would Create New Protected Class, September 15, 2011

by Clifford B. Geiger

President Obama’s American Jobs Act (AJA) would make it illegal for employers to discriminate on the basis of someone’s “status as unemployed.” This new prohibition would come with the same EEOC enforcement scheme, and essentially the same private remedies, that exist under Title VII. One of the stated purposes of this anti-discrimination provision of the AJA, called the Fair Employment Opportunity Act of 2011, is “to remove the burdens placed on commerce by the exclusion of such individuals (i.e., the unemployed) from employment.” It is not difficult to imagine, however, the additional burdens that will be placed on private sector employers who will have to deal with the many claims that result if this portion of the AJA is passed.

You can read the full text of the AJA here.

Smile For The Union Camera, September 8, 2011

by Peter S. Saucier

Several employees at a New Jersey Nursing home were asked by a union trying to gain recognition as the exclusive bargaining representative to pose for photographs. Many of the those photographs ended up on a union campaign flyer with the attributed quotation, "We're voting yes." The quote was neither made nor agreed to by the employees. The employer challenged the actions of the union as an unfair labor practice. The National Labor Relations Board did not agree. The NLRB decision endorsing the union's conduct dismissed the charges because "no reasonable employee reading the Union's flyer would think that the employees actually got together and literally said, 'We're voting yes.'" Naturally, no one at the NLRB asked the Federal Trade Commission for an opinion on the statement's standing under truth-in- advertising laws.

Government with a “Scent” of Humor, September 7, 2011

by Peter S. Saucier

The Labor Department’s Office of Federal Contract Compliance Programs filed a complaint, claiming that the nation’s largest producer of mozzarella cheese discriminated in hiring of minority workers. The Director of OFCCP, who announced the action in a statement, said “Leprino Foods’ hiring process simply doesn’t pass the sniff test.” Rimshot, please.

Restaurants Pay For Misclassifying Kitchen Workers As Exempt, September 6, 2011

by Kelly C. Hoelzer

In two cases recently instituted by the U.S. Department of Labor (DOL), two restaurants in Jacksonville, Florida agreed on August 5, 2011, to pay more than $930,000 in back pay and liquidated damages to 30 employees for violations of the FLSA. The DOL’s investigation revealed that the restaurants failed to pay overtime wages as a result of improperly classifying kitchen employees as exempt from the overtime requirements of the FLSA. The DOL also reported that wait staff received only tip wages because they were required to sign their paychecks back to the employer. Solis v. La Nopalera Mexican Rest. #10, Inc., No. 3:11-cv-0583 (M.D. Fla. Aug. 5, 2011); Solis v. LAJAL Inc., No. 3:11-cv-0584 (M.D. Fla. Aug. 5, 2011).

Employees Allowed To Work For Former Client But Not Allowed To Compete, September 6, 2011

by Kelly C. Hoelzer

Courts are reluctant to enforce non-competition agreements because they are restraints on trade and one’s ability to earn a living. To be enforceable, a non-competition or non-solicitation agreement must be reasonable in geographic scope, time, and reasonably tailored to protect the employer’s legitimate business interests. A federal court in Nevada recently ruled that Accelerated Care Plus Corp. (ACP), a medical equipment leasing business, had such a reasonable agreement in place with two former sales and training managers, Emile Roumen and Joseph Pannell. The court granted a temporary restraining order stopping the two former employees from engaging in competitive activities with their new employer – and one of ACP’s former clients – Diversicare Management Services.

ACP leases medical equipment and provides associated training to nursing facilities throughout the U.S. Diversicare operates approximately 40 nursing facilities and, for several years, leased equipment from ACP. As part of its contracts with ACP, Diversicare also obtained training-related services and material. As upper level managers at ACP, Roumen and Pannell were instrumental in developing, implementing, and marketing those training services and materials to Diversicare and other ACP clients. Both managers signed restrictive covenants with ACP in which they agreed for a one-year period not to compete with ACP, solicit ACP employees, or induce any ACP client to cease doing business with ACP.

In June 2011, both Roumen and Pannell quit ACP and took jobs as vice presidents at Diversicare. Soon thereafter, Diversicare terminated its contracts with ACP. ACP also discovered that on Rouman’s way out, he had downloaded all of ACP’s written materials, presumably to use in his new job. ACP sued both Roumen and Pannell, and their new employer, for breach of contract, misappropriation of trade secrets, and other related claims, and sought a temporary restraining order to keep Rouman and Pannell from violating their non-competition agreements.

The court issued the TRO, finding that ACP’s non-competition agreement was enforceable. The one-year period was reasonable, and the lack of any geographic restriction was appropriate given that ACP operates throughout the country. The court found ACP had suffered irreparable harm when it lost Diversicare’s substantial business after Roumen and Pannell left and when Roumen absconded with ACP’s proprietary materials. According to the court, the harm caused by the disclosure of ACP’s confidential information outweighed any harm to Roumen and Pannell if they were precluded from competing with ACP for a year. Roumen and Pannell were free to work for Diversicare, so long as they do not engage in job responsibilities related to goods or services that are the same or similar to the goods and services produced by ACP and do not disclose ACP’s confidential information. Accelerated Care Plus Corp. v. Diversicare Mgmt. Servs. Co., Case No. :3:11-cv-00585 (D. Nev. Aug. 22, 2011).

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