Articles Posted in Employment Law

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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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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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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.

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Luxury retailer Burberry has agreed to a $2.54 million settlement with employees. The workers include retail store and warehouse employees in New York. Their class action lawsuit claimed that they were forced to put in extra hours without pay. This expensive lesson serves as a reminder to all employers that they need to be aware of wage and hour laws and related practices.

Timeclock-45269690-001Burberry employees filed the lawsuit in December 2015 after they say that they were routinely forced to work off the clock. Sometimes, the duties were performed before or after shifts, with employees filling out necessary paperwork or cleaning the store. On other occasions, employees were told that they would need to work through their lunch hour. Holiday seasons were particularly bad. Sales associates involved in the lawsuit claim that they frequently worked three to six extra hours a day without being paid for their time.

Like many similar cases, legal experts familiar with this lawsuit note that they do not believe that executive management at Burberry was directing lower level management to violate wage and hour laws. Instead, they believe that the lower level managers were simply trying to cover the needs of the organization without fully understanding the consequences of their actions or that they were violating the law.

Burberry has now agreed to a settlement that should put approximately $2,500 into the pockets of the 643 workers who were involved in the lawsuit. The $2,500 per worker is after attorneys’ fees and costs. For a big-name, luxury brand like Burberry, $2.54 million isn’t necessarily a devastating amount of money to have to redirect for a lawsuit settlement. Lawyers for the company likely made a wise decision when they agreed to a settlement that kept them outside of the courtroom where the outcome may have been a great deal more expensive, especially with court costs and attorney fees. Still, it would have been better if the situation had not occurred in the first place.

It is vital for companies to work closely with employment law attorneys who are looking out for their best interests. This is the most reliable method for avoiding wage and hour lawsuits.

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Years of highly contested, and well-publicized, litigation have made employers aware of the dangers of discriminating against workers based on gender, sexual orientation, race and religion. It’s not unusual for company executives to work with an employment attorney when they are developing or revamping their practices. Unfortunately, age discrimination tends to be overlooked.

Age-Discrimination-132214651-e1500063954245This oversight is coming to the forefront with litigation filed in the U.S. District Court in New Jersey. Plaintiffs allege that their former employer, AT&T, systematically shed older workers in an effort to gain a workforce that has more advanced technological skills. The complaint relies largely on the Age Discrimination in Employment Act, a 1967 law that protects applicants and employees who are 40 or older. Essentially, the law makes it illegal for companies to make hiring, firing, promotion and compensation decisions based solely on age.

Plaintiffs argue that AT&T relied on age-based stereotypes to purge older workers. The process involved notifying the older workers that they had been placed on “surplus” status. They had a set amount of time within which they must be accepted into an alternative position within the company. However, the plaintiffs say that the selection process for those alternative positions was biased against the older employees who had been categorized as surplus. When they were unable to find another position, the workers were laid off.

Some of these employees say that they received a severance check, and that they were told by AT&T that they would be unable to sue the company under anti-discrimination laws if they took the money. Lawyers for the plaintiffs say that’s not necessarily the case, especially if the notice given to employees did not contain certain stipulated language.

The former employees cite a company blog post that described AT&T’s “Workplace 2020” program, which admitted that age-based stereotypes are being weighed in employment decisions. According to plaintiff descriptions of the blog post, older workers are the employees of yesterday while younger workers are considered more desirable.

This litigation serves as a timely reminder for all employers to be mindful of their employment practices with respect to older workers.

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Telecom giant CenturyLink is now a defendant in a potentially massive class action lawsuit in which total damages could amount to between $600 million and $12 billion if the claim is successful. Legal analysts say that CenturyLink customers should be prepared to review their bills to see if they were charged for accounts that they did not actually request.

Whistleblower-6928551-001In a situation that is eerily similar to the Wells Fargo Bank scandal that broke in 2016, CenturyLink is being accused of setting up dummy accounts, and then charging customers for them. The alleged misconduct came to light after former CenturyLink employee Heidi Heiser, who is branding herself as a whistleblower, sued her former employer over what she termed a high-pressure sales atmosphere. Heiser worked for CenturyLink for approximately one year, and charges that she was fired after using a company Q&A session to tell CEO Glen Post about suspicions that the company was charging its customers for services they did not ask for.

A lawsuit has now been filed in California on behalf of CenturyLink customers who believe they have been defrauded by the company. Among the allegations are unjust enrichment, unfair competition and fraud. Officials from the Better Business Bureau in Denver, which broadcast a warning about CenturyLink early this year, are encouraging customers to closely review their bills.

A CenturyLink spokesman states, “The allegations made by our former employee are completely inconsistent with our company policies, culture and unifying principles, which include honesty and integrity.” This lawsuit comes at a particularly critical moment for CenturyLink as they are negotiating a merger with Level 3 Communications.

The class action lawsuit names plaintiffs Craig McLeod and Steven McCauley. Both are customers of CenturyLink who say that they have been over-charged. McLeod contends that he was quoted a charge of an extra two dollars per month for a faster Internet connection. However, he was charged considerably more than that, and he also received a bill for a repair that never occurred.

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A former Amazon employee is suing his erstwhile employer over not being paid overtime. In the lawsuit, he asserts that Amazon misclassified him as a salaried manager that was not entitled to overtime. However, the worker says that the duties he performed were those of a manual laborer who should have been eligible for overtime. This case is a useful reminder for all employers to review their classification and compensation packages to ensure that they don’t encounter a similar issue.

clock-overtime-110616811-001Michael Ortiz was hired as a shift supervisor at Amazon warehouses in California. His official title was “Level-4 Manager,” a position that was supposed to cover mainly supervisory duties. Amazon’s policy defines this type of job as a salaried position that is not eligible for overtime. Entry-level “associates” whose main responsibility is moving packages, are hourly workers who can be paid overtime, and that is the work that Ortiz contends he was doing.

In the complaint filed in Contra Costa County Superior Court, Ortiz says that he spent his days loading and sorting boxes or clearing up jams on conveyor belts. Similarly, he asserts that he frequently worked days that were longer than eight hours and in excess of 40 hours per week. Only a minimum of his time was spent in supervisory or managerial duties, Ortiz contends.

According to the complaint, there may be thousands of other people who are current or former Amazon employees who may have experienced a similar situation. At the heart of the story is a central question: Did Amazon knowingly misclassify workers in an attempt to avoid paying overtime? If so, then they may find themselves on the hook for multiple thousands, if not millions, of dollars in back wages.

This lawsuit is still in its early stages, and Amazon has said that they will not comment on pending legal matters. It’s fairly safe to assume that both sides of this issue are going to dig in their heels, so a long fight is all but assured. Reviewing company classification and compensation plans with an employment lawyer is advisable for avoiding a similar situation.