Articles Posted in Employment Law

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Facebook is facing legal woes as a group of plaintiffs charges the tech giant with making it possible for companies to post employment advertisements in a discriminatory manner. The plaintiffs include the American Civil Liberties Union, a coalition for workers and three women who were seeking employment.

Smart-Phone-with-Apps-48915227-001In addition to Facebook, 10 employers are named as defendants in the complaint. Plaintiffs say that Facebook’s ad-targeting technology made it possible for these employers to direct their help-wanted ads exclusively to men. The jobs on offer included truck drivers, law enforcement officers and sales clerks at sporting goods retailers.

The Equal Employment Opportunity Commission received the complaint, which argues that since an increasing number of job and housing applicants are conducting their searches online, it has been increasingly easy for employers and landlords to engage in discriminatory practices. Under federal law, it is illegal for employers and landlords to discriminate against people based on their race, religion, gender, national origin, disability status or other protected categories.

However, in the online world, it is routine for tech companies to use algorithms that fast-track certain ads to specific users. Facebook excels at “microtargeting” users for certain advertisements. Additionally, the social media platform allows users to click on a link that says “Why am I seeing this?” This feature is actually what prompted lawyers with the ACLU to file the complaint.

Outten & Golden, a Washington, D.C. law firm, performed an experiment in which people used Facebook to search for a job or otherwise indicate that they were engaged in a job hunt. Employment ads for the 10 employers named in the suit were displayed for the male job candidates but not for the female ones. The Facebook users then clicked on the “Why am I seeing this?” link, where it was stated that their gender played a role in the targeting of that particular ad to that user.

This is not the first such complaint that has been lodged against Facebook. An earlier EEOC complaint alleged that Facebook employment ads were targeted to unfairly exclude older employees. Both of these cases are pending.

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One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney“. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

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Electric car company Tesla has filed a lawsuit against a former employee over what it claims are stolen secrets. Martin Tripp is named as the defendant.

System-Failure-51347065-001Tripp began working for Tesla in October 2017. His job was at the organization’s Nevada battery factory. As a process technician, Tripp was required to sign a non-disclosure agreement like other employees. Supervisors at Tesla began noticing problems with Tripp’s employment after a few months. They allege that Tripp was combative with colleagues and caused disruptions. In May 2018, he was reassigned to another department. The company also claims that this prevented Tripp from getting a promotion that he felt he deserved.

In the complaint, Tesla alleges that Tripp’s reassignment and the denied promotion are what sparked the employee to retaliate. Tripp admitted to internal investigators at Tesla that he wrote a software program that was capable of transferring gigabytes of data to computers outside the company. The data included photographs and videos, and Tesla claims that all of the data was privileged. Tripp is alleged to have placed the hacking software on the computer systems of three other employees so that he could continue to receive data even after he left the company. Additionally, this measure would implicate the other employees in the data theft.

According to the complaint, Tripp then leaked some of the stolen data to the media, combining it with falsehoods such as a claim that punctured battery cells were used in Tesla’s Model 3 car. The company further alleges that Tripp falsified data regarding the amount and value of scrap metal that is generated in the organization’s production processes.

Tesla CEO Elon Musk warned employees in an email about the hacking and the falsehoods that were leaked to the media. He noted that many other entities, like oil and gas companies, “want Tesla to die,” and that this is leading them to investigate whether or not Tripp acted alone.

It is not known if any criminal investigation has been launched, but this situation serves as a reminder of the importance of protecting intellectual property using all legal means available.

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A California law firm is being sued by three of its female associates. The plaintiffs, identified only as “Jane Does,” allege that Morrison & Foerster systematically discriminates against female employees, particularly those who are pregnant or have children.

Gender-Discrimination-105366239-001Representatives for the plaintiffs say they believe the case will become a class action lawsuit once other female associates at Morrison become aware of it. Plaintiffs are seeking approximately $100 million in damages, arguing that the firm pays them less and provides them with fewer promotions when compared with male peers.

The allegations came as a surprise to partners at Morrison & Foerster, a firm that provides several options for accommodating the needs of new parents. Some of these programs include flexible work options, reduced hours, parental transition time and 20 weeks of paid time off for primary caregivers.

However, the plaintiffs say that associates who take advantage of these programs are “set up to fail.” In January 2018, each learned that their peers who were in the same class year had been promoted ahead of them. Additionally, their salaries were no longer the same as their promoted peers. Their external billing rates had been raised, an error that management corrected when they were alerted to the issue.

One plaintiff described her performance review, which occurred during the same month. The plaintiff says that the partner conducting the review essentially informed her that she had not been promoted because she became a mother. She also revealed that her request for flexible scheduling, which would have allowed her to work full time with some of the hours being logged at home, was denied.

Another plaintiff was told that she was required to work more billable hours upon her return from maternity leave. However, when she requested additional work to meet this new standard, the partners were not forthcoming.

It’s unlikely that the management at Morrison intended to discriminate against any of their associates. However, sometimes even the appearance of gender and pregnancy bias is enough to cause legal problems. Working closely with an employment attorney is the best way to avoid these situations.

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The Ninth Circuit Court has acted to further eliminate the wage gap. In fact, it reversed a decision that the judge now views as unjust. The ruling sets precedent for female employees who allege that they are paid less than similarly qualified male counterparts for the same work.

Compensation-134182432-001The case in question is Rizo v. Yovino. Aileen Rizo is a math consultant employed with Fresno County Public Schools. When she learned that male colleagues in her department were being paid significantly more than she was, Rizo began investigating. What she learned eventually led her to sue her employer. Basically, Rizo was earning less because she had been paid less in her previous positions with other employers. Fresno County Public Schools used her wage history as justification for paying her less than male counterparts with similar experience.

The Ninth Circuit agreed with this pay history reasoning last year, aligning themselves with the defendant because the pay differential was based on “a factor other than sex.” The recent reversal of this finding means that a worker’s pay history cannot be construed as “a factor other than sex” under the auspices of the Equal Pay Act. This decision effectively wipes out 30 years of precedent, and activists say that it strikes a major blow to the wage gap situation.

In the decision, Judge Reinhardt wrote that “‘any factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.” The judge went on to argue that using the Equal Pay Act to perpetuate the gender wage gap runs contrary to the very purpose of the Act.

The decision is an echo of several state-level decisions that are prohibiting employers from gathering data relating to the salary history of prospective employees. Accordingly, it is critical for employers to update their hiring processes to reflect these changes. It also is sensible to review current salary data for all existing employees to ensure that any pay disparities between male and female colleagues with similar qualifications are supported by the provisions of the Equal Pay Act.

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Employers don’t always have an easy time when it comes to accommodating the religious beliefs of workers. Understanding nuanced belief systems and balancing that with company objectives leads to legal friction. That’s the case in a lawsuit that the Equal Employment Opportunity Commission, or EEOC, filed against Memorial Healthcare in Michigan.

Employment-Contract-44108074-001According to the complaint, medical transcriptionist Yvonne Bair received an offer of employment from Memorial Healthcare. The prospective employer informed Bair of its requirement that all employees receive the flu vaccination. Bair refused the vaccination on religious grounds, saying that her belief in Jesus Christ led her to reject injecting or ingesting any foreign substances. The hospital suggested that Bair could take the nasal spray flu vaccine, but Bair again refused.

Memorial then rescinded its employment offer, despite the fact that Bair told them that she would wear a mask. According to the employer’s policy, it’s acceptable for employees to wear a mask when they cannot get a vaccination.

Bair took her complaint to the EEOC, which filed a lawsuit on her behalf. The EEOC charges that Memorial violated Title VII of the 1964 Civil Rights Act when it rescinded the employment offer. According to the act, employers cannot discriminate against employees based on religious beliefs. Instead, employers must strive to provide reasonable accommodations that allow workers to observe personal religious practices.

Why did Memorial rescind the offer of employment when they have a policy allowing unvaccinated employees to wear a mask as an alternative? Bair would eventually have become a work-from-home employee, so the chances of her transmitting the flu to co-workers or patients would likely have been minimal.

Perhaps Memorial had other reasons for deciding to go with another job candidate. However, unless they used proper documentation to support their decision, they may find themselves in a continuing legal battle.

It is vital for all employers to understand anti-discrimination employment laws. Additionally, it’s critical that employers proceed with extreme caution when it comes to hiring, firing and disciplinary decisions. Work with a qualified business attorney to make certain you stay on the right side of the law.

Feel free to contact attorney Rich Oppenheim by phone or message by using the “Contact” box in the right column of this blog.

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A former employee of a Chicago-area Target store is suing the retail chain based on numerous claims. Perhaps most explosive among them is the accusation that Target systematically accuses Hispanic employees of using fake Social Security numbers.

Wrongful-TerminationEsmeralda Radek began working at Target in 2012. In 2014, the manager of the store where Radek worked received a letter that claimed that Radek was stealing from the store and selling the items on eBay. Moreover, the letter asserted that Radek had used a fake Social Security number during the hiring process.

Approximately one week after receiving the letter, human resources personnel at the store confronted Radek over the claim that she used a false Social Security number. Radek was requested to verify her Social Security information by providing the state in which the credential was issued. In response, Radek informed supervisors that she had been born in Texas, and that her mother had likely obtained the Social Security card for her.

Within a few days, Target terminated Radek’s employment on the grounds that she had used a fake Social Security number. However, Radek claims that she is not the only Hispanic employee at Target who has been accused of similar crimes. If these employees could later verify the authenticity of their credentials, they could be re-hired.

In April of 2014, Radek filed a complaint alleging that she had been fired based on her national origin. Additionally, the complaint alleged a negligence claim under Illinois state law, hostile work environment claims and asserted that Target had demonstrated a pattern of practice that discriminated against Hispanic employees.

Target filed a request to dismiss the case, and a U.S. District judge partially granted this request. Judge Lee dismissed the claims regarding the hostile work environment and pattern of practice, but said that Radek’s case regarding national origin discrimination may proceed.

When questions arise regarding an employee’s identification and other credentials, it is always advisable to proceed with caution. Consult with a qualified business and employment attorney before this type of situation arises so that your organization is prepared to respond in line with the law.

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James Damore, a former Google employee who made headlines last year after his written diatribe regarding why women are barred biologically from being successful at engineering, is making headlines again for suing the company.

Gender-Discrimination-105366239-001In his long and considerably detailed complaint, Damore alleges that the tech giant discriminates in its hiring policies against white, conservative men. He accuses the company of having hiring quotas for workers who are female or belong to an ethnic minority. Citing meetings in which department managers are singled out and chastised for not having reached their quota of female or minority workers, Damore says that it is difficult for a white man who does not hold liberal views to get ahead at Google.

Among the charges, Damore says that Google actively discriminates against white male employees who have “perceived conservative views by Google.” The complaint goes on to state that Google has a practice of disciplinary action against employees who “expressed views deviating from the majority view at Google on political subjects raised in the workplace ….”

Google’s own diversity reporting makes Damore’s claims seem at least partially spurious. The company’s latest reports say that their workforce is 69 percent male and 56 percent white. What is more, their technical employees are 80 percent male and 53 percent of these workers are white. This may make it difficult for Damore to support his claims in court.

At the same time, Google is being sued by four female former employees who say that the company openly discriminates against women, paying them less than male counterparts and making it more difficult for them to advance to more responsible positions. In fact, the government is already investigating Google for suspected discriminatory practices against females and minorities.

Google seems to be embattled on all sides thanks to these lawsuits. Their position is a stark reminder of how important it is to develop hiring, promotional, disciplinary and firing practices that are in strict accordance with the law. Working closely with a business and employment attorney is an excellent way to ensure that your company does not run afoul of the law.

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Sexual harassment and abuse in a wide range of industries has made major headlines in recent months. Heavyweights in Hollywood and the media, along with CEOs of major corporations, are all losing their reputations as allegations come to light. With more people being aware than ever before about the dangers of sexual impropriety in the workplace, now is an excellent time to introduce more stringent policies and to implement comprehensive training at all levels of any organization.

bribery4The recently passed federal tax law adds another layer of complication to the settlement of sexual harassment and abuse claims in the workplace. Previously, employers could deduct the cost of settlement payments made to the victims of sexual harassment. It also was possible to deduct the cost of severance packages that were given to at-fault employees. The new tax legislation appears to put an end to this practice.

This new tax law adds § 162(q) to the Internal Revenue Code as follows:

“(q) PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.”

In other words, when the settlement of the sexual harassment claim involves a non-disclosure agreement, the employer will no longer be able to deduct the cost of those proceedings on their federal taxes.

As straightforward as the law’s wording is, its application promises to be complex. What happens if the plaintiff alleges other forms of harassment or discrimination in the same proceedings? Is the cost of settlement for those claims still deductible? If the employer disagrees that the payments should not be deductible, what means do they have to fight it? Going to court would all-but guarantee the publication of information that is subject to the non-disclosure agreement.

The new federal tax law gives employers one more excellent reason to train all employees regarding the dangers of sexual harassment and abuse in the workplace. Preventing these incidents before they happen is the best way to avoid complicated tax questions and litigation.

Feel free to contact me, Richard Oppenheim with your related legal questions. I may be reached at 818-461-8500 or by using the “Contact Us” box in the right column.

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Most company executives are aware of the FMLA benefits due to expectant mothers who work at their firm. Perhaps they even provide those mothers with extra benefits, like a few weeks of paid leave just before or after the birth. While mothers certainly appreciate these benefits, it pays to be aware that new fathers may want and even be entitled to similar benefits. Failing to provide gender-neutral parental leave benefits may provide employees with the basis for a lawsuit.

EEOC_cooltext396845518This is the situation in which cosmetics company Estée Lauder finds itself. The EEOC recently filed a lawsuit against the company because it does not offer equal parental care leave to male and female employees. A pregnant female worker is eligible for as many as six weeks of paid leave and a flexible back-to-work benefit that may include shortened hours and the ability to work from home. Male employees receive just two weeks of paid leave and have no option to take advantage of the flexible back-to-work benefit.

The EEOC’s complaint says that the policy violates the Equal Pay Act and Title VII of the Civil Rights Act. Under these laws and others, the federal government requires that companies provide equal benefits and pay for the same work. This additionally means that these federal laws are gender neutral. In other words, both men and women are entitled to equal protection.

This is the second such lawsuit to be filed in recent memory. A J.P. Morgan Chase fraud investigator sued his employer because he was not offered the same parental-leave benefits as a female employee would receive. This earlier suit is still pending.

Employers are not legally required to provide paid parental leave for female or male workers. However, they are required to abide by federal laws like the FMLA that protect workers who want to take time to bond with their newborn child. Offering additional, paid-leave benefits for new parents can be a valuable perk that will attract outstanding talent to your firm. Nonetheless, it is critical to ensure that these benefits are offered on a gender-neutral basis to avoid lawsuits.