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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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In a new twist on the classic school bully story, one dad in New Jersey is suing his son’s school after the boy was disciplined for bullying.

schoolbullyingThe story began two years ago when Robert E. Taylor’s son was in the third grade. Identified only as “H.T.,” the boy was in the cafeteria when another boy tried to remove his sweatshirt. The t-shirt he was wearing underneath stuck to the sweatshirt, exposing the boy’s abdomen. Witnesses claimed that H.T. and at least one of his friends laughed at the other boy. The friend also drew a caricature of the boy without a shirt, and H.T. allegedly encouraged his friend to post the picture on Facebook.

The picture was never posted, but the trouble had begun. The school’s vice principal spoke to H.T. in an interview in which H.T. denied laughing at the other boy or encouraging his friend to post the picture on Facebook. Not satisfied, the vice principal kept digging, discovering that the other boy was frequently called names by students, though no one could remember H.T. ever being among the name callers.

The vice principal concluded that H.T. must be involved. In a later interview, H.T. told the principal that he had laughed at the boy and encouraged his friend to post the picture online. However, H.T. maintained that he had not participated in any other bullying activity against the other boy.

H.T. was punished for his behavior by having to miss one day of recess, but his father was not satisfied with the outcome. He appealed the punishment to the school board, eventually taking the case to the Commissioner of Education for the state. The commissioner passed the case on to the Office of Administrative Law, but Taylor doubted that he would get the results he was hoping for from that entity.

Now, he has filed a lawsuit that argues that his son’s free speech and due process rights were violated. The suit also claims racial discrimination, detailing harsher punishments for black students at the school. It remains to be seen how this case will be decided.

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The Walt Disney Company recently suffered a setback in a California federal court. Specifically, a judge has denied Disney’s request for a preliminary injunction against Redbox that would have forced the DVD-rental company to stop reselling the download codes for digital copies of the studio’s films.

redbox-1Redbox’s movie rental kiosks have become a familiar part of the landscape in recent years. Consumers stop by these kiosks for the latest releases. For the most part, Redbox has distribution deals with the major movie studios that allow them to profit by renting out the studios’ films. However, Redbox has no such agreement with Disney.

Accordingly, Redbox purchases Disney-distributed movies from retailers, then slips them into their kiosks for customer rental. Disney and other movie studios frequently put new films in combo packs that feature DVD and Blu-ray copies of the films along with a download code for getting a digital copy. In addition to renting DVDs and Blu-rays, Redbox has been selling the download codes on slips of paper that are obtainable at their kiosks.

When Disney found out about this practice, they immediately launched a lawsuit. Among the charges in the complaint were copyright infringement, false advertising, unfair competition, tortious interference with customer contracts and breach of contract. Redbox quickly countersued, arguing that the studio was trying to stifle possible competition for its soon-to-be launched digital streaming service.

Not only has a federal judge denied Disney’s request that Redbox be stopped from re-selling download codes, but also the judge says Disney is actually misusing copyright law. On each Disney movie combo pack, consumers will find language stating that the download code cannot be sold or transferred. The studio argued that this constitutes a legally binding contract, but the judge did not agree. In fact, the judge said that there is no law that prevents what Redbox did. After the “first sale,” which was the lawful purchase of the combo pack, the owner is then free to dispose of the copies as they wish.

Copyright law can be incredibly nuanced. Work with a skilled business attorney to protect your intellectual property rights.

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A jury verdict in Las Vegas highlights how crucial it is for homeowners associations to properly inspect and maintain common equipment. The HOA for the Lamplight Village at Centennial Springs now faces either finding a way to pay the $20 million decision or a lengthy and expensive appeal. Lawyers for the plaintiff argue that if the HOA had simply agreed to a $150 per month maintenance fee, the HOA would never have been in this situation.

DT-19867194-scale-001In 2013, Carl Thompson was playing basketball with some friends. He sat on a nearby swing set to send a text message. Unexpectedly, the metal crossbar at the top of the swing set broke and came crashing down on his head. Weighing in at 42 pounds, the cross bar effectively crushed the left side of the 15 year-old’s skull.

In the years since, Thompson has suffered from debilitating headaches. He has difficulty remember things and some of his physical movements are impaired. Doctors say that his chances of developing dementia have radically increased. As with many traumatic brain injuries, there is a likelihood that Thompson’s condition will further deteriorate. So far, he has been unable to finish high school, and his dreams of becoming a musician have fallen by the wayside.

Thomson sued the HOA. A jury recently decided the case in his favor with a $20 million verdict. The plaintiff’s attorneys say that the HOA ignored several warning signs that the swing set was failing. Inadequate repairs had been made in the past, and the HOA had refused to purchase a $150 per month maintenance plan from the swing set’s installer to cover routine upkeep and other repairs.

Thomson’s attorneys also say that the HOA took a chance by going to court with the case instead of accepting several settlement offers for far less money. Now, the lawyers believe that the HOA’s insurance company will be responsible for the damages.

Taking a case before a jury is always a risk. This is why experienced, knowledgeable legal counsel is indispensable to all litigation. With their assistance, it may be possible to avoid a trial.

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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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Service and support animals are becoming an increasingly common sight, especially with so many veterans suffering from PTSD. These animals are trained to meet the physical, psychological or emotional needs of disabled people. This makes them an indispensable part of everyday life for thousands.

Lawsuit-64354059-001Many public places that do not normally allow animals make exceptions for service animals. This is also true on airlines. However, American Airlines recently settled a lawsuit in connection with an incident in which a veteran says she was harassed and discriminated against when she tried to board a plane with her service dog, Jake.

Lisa McCombs served in the American military in Iraq and Afghanistan. As she suffered from PTSD, upon her return to civilian life, McCombs was partnered with Jake, a support dog that was trained to move closer to McCombs when she experienced trauma or stress. These behaviors are intended to provide reassurance and to help ward off panic attacks.

McCombs and Jake are constant companions, but when she tried to board a flight in Kansas in 2015, American Airlines employees blocked her from boarding with her dog. Apparently, employees did not believe the dog was a service animal despite McCombs having appropriate paperwork and the presence of an identifying vest on the dog. Moreover, McCombs had called in advance to inform the airline that she would be flying with a service animal.

McCombs and Jake were denied boarding two days in a row in Kansas. More alleged harassment followed at a Texas airport. She filed a lawsuit under the Air Carrier Access Act. This law essentially states that airlines cannot discriminate against air travelers based on disabilities. In an answer, American Airlines argued that the law does not provide individuals with the right to privately sue.

Nonetheless, the case has now settled with undisclosed terms. A spokesperson for the airline says that the settlement was to the parties’ mutual satisfaction, and he also thanked McCombs for her service.

Understanding the rights of Americans with disabilities is crucial to avoiding discrimination lawsuits. Contact attorney Rich Oppenheim to learn more.

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When a corporation hires a coach for an executive, that executive probably expects to hone skills that enable her to take on a more advanced role. However, that was not the experience had by Denise Stilwell, a former executive at Twentieth Century Fox.

Gender-Discrimination-105366239-001Stilwell began her employment with Fox in 1999. By 2013, she had been promoted to a vice president position in enterprise rights management. The position came with a four-year contract, which included a promise of promotion to a senior vice president position within the first two years.

Her immediate supervisor accepted a voluntary retirement package in 2016, which meant that she began reporting to Fox CFO Dean Hallett. Shortly after the change, Stilwell was summoned to Hallett’s office. She expected to be given a promotion. Instead, Hallett informed her that she “smiled too much,” and that an executive coach was going to begin working with her.

That coach was Jack Zwissig from Zwissig and Associates. Zwissig allegedly told Stilwell that her “smile is fake,” that she laughed too much and that people generally didn’t like her. Most troubling of all is Stilwell’s assertion that Zwissig told her that she should “lift her skirt.”

Stilwell reported Zwissig’s comments to Hallett, calling them sexist and improper. Almost immediately, she was reassigned to another executive vice president, Joanie Wallace, who refused to meet with her for months. Abruptly in January 2017, Stilwell was fired because her department wasn’t moving in the right direction.

Recently, Stilwell filed a lawsuit naming her former employer, Zwissig and Zwissig’s firm as defendants. The complaint levels charges of gender discrimination, retaliation and hostile work environment, among others. If she prevails, the plaintiff hopes to collect unspecified damages for loss of future earnings and benefits as well as emotional distress.

This situation acts as a vital reminder that all complaints regarding possible harassment and discrimination must be followed up on swiftly and thoroughly. Failing to do so often exacerbates the situation to a point that is difficult to control. Working closely with a qualified employment attorney is the best way to prevent these circumstances from occurring.

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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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It is vital for employers to understand any physical limitations that their employees have. Not responding appropriately can lead to serious legal trouble.

ADA-138029727-001It’s a situation that happened recently in Union City, Georgia where a police detective sued her former employer. Jacqueline Lewis is an African-American woman who had been employed by the department for 10 years when her career stumbled. Lewis suffered a heart attack in 2009 and was diagnosed with a chronic heart condition.

This condition didn’t render her unfit, so Lewis continued in her role until the department decided to require all employees to carry a Taser. As a part of the training, each employee was expected to submit to a five-second shock. Participants had to seek the consent of their physician prior to the training, but Lewis’ doctor refused permission because of her heart condition.

Lewis’ superiors placed her on administrative leave, and a series of mishaps appears to have worsened relations between Lewis’ doctor and the police department. By day 21 of her leave, Lewis had been terminated, with her employer arguing that she had exhausted her leave time.

Lewis promptly filed a discrimination lawsuit, citing disability, race and gender as the grounds. The complaint detailed the stories of two white, male officers who had been given considerably more time before they were terminated for not meeting the physical ability requirements.

A district court didn’t agree that Lewis had demonstrated her status as a qualified individual under ADA. Additionally, they said that the male employees she compared herself to were not “similarly situated.” Lewis appealed this decision, and the Eleventh Circuit found that Lewis’ heart problems did not make her disabled. However, the department’s decision to treat her as if she was gave her protection under ADA. The circuit court also argued that there may be evidence of gender and race discrimination. They ruled that the case should be decided by a jury.

This case illustrates how crucial it is for employers to treat their employees with care. That treatment may grant them some protection under the law to which they wouldn’t otherwise be entitled.