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We Need “Young Creative People” Not Proof of Age Discrimination

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 […]

Employees Allowed To Work For Former Client But Not Allowed To Compete

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 […]

Restaurants Pay For Misclassifying Kitchen Workers As Exempt

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 […]

Burlington Definition of Retaliation Appropriate Under the FMLA

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 […]

Undocumented Workers Not Eligible for Back Pay Under NLRA

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 […]

It’s Ok to Threaten Your Supervisor

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 […]

Playing “Race Card” Wins Jury Trial on Retaliation Claim

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 […]

Age Discrimination Or Technological Advancement?

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 […]