The Employment Brief

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...

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,...

The Second Circuit has joined five other Circuits in holding that the correct definition of a "materially adverse employment action" in FMLA retaliation cases is the one used by Supreme Court in its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White.  The Burlington definition includes employer actions that are likely to dissuade reasonable workers from exercising their rights under anti-discrimination laws.  Millea v....

Affirming dismissal of an FLSA suit against SAIC, the Fourth Circuit has held that a job applicant who alleged the company withdrew a conditional offer of employment upon learning that she had sued a former employer for wage and hour violations cannot pursue an FLSA retaliation claim against the prospective employer because the Act only permits "employees" to file retaliation claims against their current or former employer.  Dellinger v. SAIC, No....

In Mezonos Maven Bakery Inc., 357 N.L.R.B. No 47 (Aug. 9, 2011), a unanimous three-member panel held that the National Labor Relations Act and Supreme Court precedent in Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002) “forecloses us from awarding back pay to undocumented workers” even where the employer was violating the Immigration Reform and Control Act by knowingly employing undocumented workers.  The workers in this case were...

This week, a construction industry employer learned that it was illegal for it to fire two union-represented employees who had told a supervisor “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves” after the supervisor disciplined a group of employees for exceeding a 15-minute break limit.  The employer terminated the employees for violating its zero tolerance policy against workplace violence.  The National...

An African-American factory employee won the right to take his Title VII retaliation claim to a jury because his manager had accused him of “playing the race card.”  The employee “almost habitually” complained about poor treatment from a white co-worker, as well of racial discrimination in training and promotion decisions that he was denied.  In one particular meeting where the employee was being questioned about why he did not complete a...

by Kelly C. Lovett Workers’ compensation provides a valuable benefit to employers as the sole remedy for employees injured on the job.  As a result, employee lawsuits against employers for job-related injuries or illnesses usually are dismissed as soon as they are filed.  Occasionally, an employee will sue under a narrow exception to the workers’ compensation laws.  This was the case in the District of Columbia where a lab employee brought...

Plaintiffs suing for age discrimination must prove, as part of their prima facie case, that they were replaced by an individual outside of their protected class – that is, that they were replaced by someone younger.  What happens, though, if the employee is replaced by a computer program?  Can the employee establish a case of discrimination? The answer is “no,” according to the Eleventh Circuit.  That court held that a terminated employee...

The Americans with Disabilities Act (ADA) prohibits associational discrimination.  In other words, an employer cannot discriminate against an applicant or employee who has a relationship or association with an individual with a known disability.  42 U.S.C. § 12112(b)(4).  The EEOC explains that the ADA prohibits conduct such as: An employer is interviewing applicants for a computer programmer position.  The employer determines that one of the...