Articles Posted in Employment Law

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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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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Memorial then rescinded its employment offer, despite the fact that Bair told them that she would wear a mask.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.

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Labor Day is upon us. Summer is unofficially over. Many kids have started school and the rest will start shortly.

About Labor Day

Happy%20Labor%20Day%20%2064937021-001.jpgLabor Day is always celebrated on the first Monday of September. Americans have been celebrating Labor Day since the 1880s, and today it is an official federal holiday.

It is the day Americans celebrate their achievements in work, which the US Department of Labor says has contributed to prosperity and well-being of America as a whole.

Some Interesting Labor Day Facts

  • This year, more than 35 million Americans will travel over Labor Day weekend.
  • It is estimated that over 350,000 of them will choose Las Vegas as a destination.
  • President Cleveland made Labor Day and official US holiday in 1894.
  • Labor Day gas prices continue to be low.
  • Labor Day marks the end of hot dog season (it starts on Memorial Day), when Americans consume seven billion hot dogs; 818 per second!

Take this weekend to celebrate the fruits of your labors… wear white, enjoy a bar-b-que, eat some hot dogs and whatever you do, stay safe and have fun.

We are glad to have you as part of the Sylvester, Oppenheim & Linde team!

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Recently, California’s Department of Fair Employment and Housing, or DFEH, issued a revised “Workplace Harassment Guide for California Employers.” This essential publication should form the basis of every organization’s anti-harassment and retaliation policies. With the guidance of a qualified California employment attorney, most companies will be able to protect themselves from violating the guidelines described in the publication.

https://www.californiabusinesslitigation.com/wp-content/uploads/sites/283/2016/05/boy.girl_.-equality.jpgThe Guide is particularly useful to employers because it clearly describes the necessary elements of any anti-harassment program in California. Employers are recommended to develop a written policy that is given to all employees and is discussed at least once a year if not more often at company meetings. The Guide also offers counsel on how crucial it is for members of management to model appropriate behavior and responses to harassment complaints. Training for managers and supervisors similarly is recommended, as well as education for personnel who will be charged with handling complaints.

One of the most important tenets espoused by the publication is the need for a proper reporting system, and a means of ensuring that every report is treated as a high-priority item. This makes it possible for the employer to determine whether or not a full, formal investigation is required. One of the new Guide’s more useful sections educates managers and supervisors about how to investigate a claim. A prompt, thorough and impartial investigation is frequently able to head off more serious problems like harassment and retaliation lawsuits.

DFEH’s revised Guide is essential reading for every employer in California. Its plain language and good coverage of relevant points make it the perfect resource for an anti-harassment and retaliation policy. A skilled California employment lawyer can help any company owner or executive put the finishing polish on the organization’s program. Too many companies make the mistake of not creating a written policy until it is too late.

Executives who want to improve the chances that their company will not become embroiled in costly, time-consuming litigation will want to discuss the Guide and how it can be used to craft an anti-harassment program specifically for their company with a qualified attorney.

The guide is only 9 pages long. If after reading it you have any employment law questions, feel free to contact me, Richard Oppenheim. I may be reached at 818-461-8500 or by using the “Contact Us” box in the right column.

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A robust network can help to open the door to new professional opportunities. Increasingly, professional networks are being created and maintained in a virtual environment. While it is becoming more common for colleagues and former co-workers to connect to each other via social media, it is vital for employers and employees to understand how various employment agreements that they are a party to may affect their interactions.

Scales-of-Justice-Digital-94824052-001This concept is at the heart of a recent case in Illinois. A branch manager for Bankers Life & Casualty Co. named Gelineau left his employment to accept a position with a competitor called American Senior Benefits, LLC. After Gelineau began working with his new employer, he sent LinkedIn invitations to three of his former co-workers at the Warwick, Rhode Island office of Bankers Life. The trouble is that Gelineau had signed a non-solicitation agreement with his former employer. As is common with these agreements, Gelineau had promised not to solicit other Bankers Life employees to seek employment with other companies.

Bankers Life sued American Senior because they believed that Gelineau had violated his non-solicitation agreement. However, the court did not agree. The judge ruled that the LinkedIn emails were “generic” and “did not contain any discussion of Bankers Life.” Moreover, the email did not contain a “solicitation to leave their place of employment.” Instead, the email was merely intended to provide an opportunity for the former co-workers to keep their professional network as robust as possible.

According to the court, if Gelineau had included some kind of hint or suggestion that the Bankers Life employees should leave their current place of employment in favor of American Senior, then the outcome may have been different. Bankers Life was concerned that a listing of open positions at American Senior was included in Gelineau’s LinkedIn home page. Nonetheless, the court did not feel that Gelineau could be held responsible for what visitors to his LinkedIn page did once they were there.

Non-solicitation agreements are standard in many industries. With the changing communication landscape, it’s important to recognize what these agreements do and do not cover.

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The Equal Employment Opportunity Commission (EEOC) has announced a lawsuit against Big 5, which is one of the largest sports retailers in the U.S. A black employee named Robert Sanders is suing his employer over ongoing racial harassment. Sanders charges that upper management in the company failed to act even after he repeatedly reported the abuse. This story is a reminder to all employers about the necessity of investigating every harassment complaint with the utmost speed.

Retaliation-32004699-001Robert Sanders was the only black employee at Big 5’s store on Whidbey Island, Washington. As a part of the management training program, he expected to have an opportunity to learn new skills that would help him to embark on a new career. What he claims to have found instead was a racially charged atmosphere that had his coworkers referring to him with slurs like “King Kong,” “boy” and “spook.” Another trainee allegedly said that Sanders had the “face of a janitor.”

Sanders took his story to Big 5’s upper management, but he says that they did nothing to investigate his claims. Tensions reportedly grew worse in the manager training program. Sanders took multiple leaves as he tried to cope with the stress. An assistant manager allegedly told him, “We will hang you, we will seriously lynch you if you call in again this week.”

Sanders says that the behavior didn’t stop, nor did upper management offer to help in any way even after repeated reports. Eventually, Sanders took his complaint to the EEOC, which offered to act on his behalf. The EEOC pointed out to Big 5 that the behavior Sanders had been subjected to was illegal under Title VII of the Civil Rights Act of 1964. Furthermore, Sanders says that his employer retaliated against him, denying him breaks, unreasonably increasing his workload and disciplining him for things he did not do.

Big 5 and the EEOC failed to come to an agreement at the negotiation stage, which led to the filing of the lawsuit. This example demonstrates once again why employers must take swift and immediate action to investigate all harassment claims.