Arbitration agreements have been gradually inserting themselves into all aspects of our lives. Many of our consumer contracts now have arbitration provisions that require you to arbitrate your legal disputes rather than go before a judge or jury. Arbitration requires you to have your case heard by an arbitrator, typically with little opportunity for discovery and usually with very few avenues for appeallate review.
When you first become employed by your employer, many times you receive a very tall packet of documents to sign, sometimes these documents you sign include an arbitration agreement. What this means is that if you are fired or suffer discrimination, in most cases, you will have to have your claims resolved by arbitration rather than in court.
There are some ways to attempt to avoid the enforcment of these employment arbitraiton agreeements, but it is not an easy task. Florida Courts and courts in other jurisdicitons have regularly been enforcing these types of provisions. Take the recent Fourth District Court of Appeal case of AMS Staff Leasing, Inc. v. Robert F. Taylor In the AMS Staff Leasing Case, the Fourth District Court of Appeal looked at whether an employment arbitration agreement was enforceable. While workers compensation matters are typcially not subject to arbitration, a case for wrongful discharge based upon a workers compensation case under Fla. Stat. 440.205 was held to be arbitrable. The Court also evaluated whether the arbitration agreement was unsconcsionable. Courts evalaute arbitration provisions based upon procedural and substantive unsconscionability. Under substantive unconscionability, an employee can argue that an agreement is not enforceable where it does not provide the same remedies available to an employee under federal and state laws. Under procedural unconscionability, the Courts evaluate whether the employee was given a fair opportunity to review the document and understand its contents. In the AMS case, the Court determined that the agreement in question was enforceable.
The bottom line is if you are presented with one of these agrements with your employer, try to have an lawyer review it and advise you of your rights. Even if you did sign one, there are arguments that can be made to avoid their enforcement.
Feel free to call a lawyer to discuss this matter further and Behren Law Firm can discuss these issues with you.
While Federal discrimination laws do not currently protect LGBT employees (although they are protected by many local county ordinances in Florida), The Secretary of Housing and Urban Development has taken efforts to ensure that Gay, Bisexual and Transgender persons are protected by the Federal Housing Laws.
“The Obama Administration has viewed the fight for equality on behalf of the LGBT community as a priority and I’m proud that HUD has been a leader in that fight,” said Secretary Shaun Donovan. “With this historic rule, the Administration is saying you cannot use taxpayer dollars to prevent Americans from choosing where they want live on the basis sexual orientation or gender identity – ensuring that HUD’s housing programs are open, not to some, not to most, but to all.”
The new regulations, published as final in the Federal Register next week, will go into effect 30 after the rule is published.
The final rule, published as Equal Access to Housing in HUD Programs – Regardless of Sexual Orientation or Gender Identity, makes the following provisions:
Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied. HUD will institute this policy in its rental assistance and homeownership programs, which include the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs.
Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing. FHA’s current regulations provide that a mortgage lender’s determination of the adequacy of a borrower’s income “shall be made in a uniform manner without regard to” specified prohibited grounds. The rule will add actual or perceived sexual orientation and gender identity to the prohibited grounds to ensure FHA-approved lenders do not deny or otherwise alter the terms of mortgages on the basis of irrelevant criteria.
Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs. In the majority of HUD’s rental and homeownership programs the term “family” already has a broad scope, and includes a single person and families with or without children. HUD’s rule clarifies that otherwise eligible families may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship.
Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. In response to comments on the proposed rule, HUD has clarified this final rule to state that this provision does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements.
A consent decree agreement entered Thursday in federal court resolves a disability discrimination lawsuit against Wal-Mart Stores Inc., filed by the U.S. Equal Employment Opportunity Commission (EEOC) last year on behalf of former employee Charles Goods, and discrimination claims filed by Goods.
The EEOC took up the Greeneville resident’s case against the retailing giant, claiming in a lawsuit filed in October 2010 that Wal-Mart violated federal law when it fired longtime employee Goods because of a cancer-related disability, and retaliated against him for complaining about the discrimination.
The orders in the decree signed by U.S. District Court Judge J. Ronnie Greer include a provision that Wal-Mart pay $275,000 in full settlement of the claims, including $110,000 in back pay with interest and $165,000 for compensatory damages to Goods.
Back wages are for the years 2009 and 2010.
Wal-Mart was also ordered to conduct anti-disability discrimination training for management and take steps to prevent “further failing to provide reasonable accommodation” to employees with disabilities.
EEOC filed the lawsuit under provisions of the Americans With Disabilities Act (ADA) of 1990 and the subsequent ADA Amendments Act of 2008 (ADAAA), and the Civil Rights Act of 1991.
Goods was hired by Walmart in January 1997 and worked as a forklift operator at the Distribution Center for more than 12 years. In 2005, according to the EEOC civil complaint, he underwent surgery for thyroid cancer.
The surgery severed several nerves and left Goods with limited feeling or strength in his right arm. He remained “a qualified individual with a disability,” the complaint said.
In November 2008, Goods’ supervisor asked him to relieve an employee in the shipping department for a 20-minute break. Goods replied that he could not perform the work because he couldn’t do the manual lifting required there.
He was asked to complete a request for reasonable accommodation, court documents said.
The EEOC complaint demanding a jury trial said that Goods requested reasonable accommodation to continue working in the section of the Distribution Center where he operated a fork lift, adding that he was employed successfully for 12 years, including the three years following his cancer surgery.
Wal-Mart claimed an essential function of Goods’ job “was manual lifting,” the EEOC complaint stated. Goods’ doctor advised Wal-Mart that he could not perform manual lifting.
“In practice, [Wal-Mart] did not require Goods to do any significant manual lifting in order to successfully perform his job,” said the complaint, which claimed the company denied Goods’ requests for reasonable accommodation, asserting that he could not perform essential job functions.
“[Wal-Mart] did not enter into the interactive process to accommodate Mr. Goods’ disability,” the complaint stated, instead placing him on leave “and subsequently discharging him because of his disability.”
Goods was placed on a 90-day leave on Dec. 18, 2008, in response to his request for an accommodation, and denied an appeal before he was advised that “it was his responsibility to find another position that did not have a written requirement of manual lifting.”
He filed a charge of discrimination on May 18, 2009, and was terminated by Wal-Mart on July 16, 2009, “in retaliation for his continuing to request a reasonable accommodation for his disability,” the EEOC complaint stated.
If you believe you have suffered discrimination or job termination due to a disability, feel free to call Scott Behren and the Behren Law Firm for a free consultation.
Is having a second job at Hooters in order to pay your bills and support your children enough to terminate your employment? Is there a claim for gender or familial status discrimination where a single mother holds this type of job to support her kids? Thess issues are starting to be addressed in the Ft. Myers area in the case of Nicole Zivich.
A high school cheerleader coach in southwest Florida says she was fired because a parent complained about her part-time job at a Hooters restaurant. The 24-year-old Nicole Zivich was fired from Estero High School Nov. 21. Zivich told the Lee County School Board this week that a parent of one of the cheerleaders had sent a flurry of emails complaining about her second job at the popular chicken wing restaurant where waitresses wear tight-fitting uniforms.
This matter has created lots of noise for the local school board who has been asked to reconsider its decision. Will keep you posted on how things turn out.
If you believe you have been the subject of sexual harassment or gender discrimination, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.
It is a violation of the Americans with Disabilities Act to terminate or refuse to consider an employee for a position based upon their disability or based upon a perceived disability. Robert Bush recovered a large jury verdict where his employer treated him differently based upon his heart condition.
A federal jury has awarded a Gillette man $1.2 million in damages in his wrongful termination lawsuit against a heavy-equipment dealer.
The jury found last week that Casper-based Wyoming Machinery Co. violated the Americans with Disabilities Act in terminating Robert G. Bush after he underwent open-heart surgery.
According to a pretrial memorandum filed on behalf of Bush, he began employment with Wyoming Machinery on Sept. 1, 1999, as a tube technician and later as a mechanic working on heavy equipment, including haul trucks at coal mines in Campbell County.
Bush underwent open-heart surgery in October 2006 and was told by his physician not to work for six months and to work only “light duty” when he returned to his job.
The company considered Bush disabled and placed him on long-term disability, according to court records.
Bush returned to work in April 2007 as a heavy-equipment mechanic. But, on the second day back on the job, he suffered what he characterized as a mild heart attack, and he returned to long-term disability.
In August 2007, Bush was contacted about a site coordinator position open at the North Antelope mine. He was 51 years old at the time. He didn’t get that position and wasn’t notified about an opening at another mine that went to a younger, less-qualified employee, the court records said.
Bush was qualified and physically able to handle the site coordinator position, according to the lawsuit.
The company contended the person who got the job had better computer skills than Bush.
Bush was terminated July 15, 2008, based on company policy that an employee cannot be absent from work for more than six months. He had been absent from work for about 21 months with the exception of two days he worked in April 2007, company attorneys wrote.
Wyoming Machinery Co. also said Bush did not suffer a mild attack after he returned to work but had only a muscle problem. And it argued that Bush’s physician never told him that he needed to take time off work to recuperate. The company paid Bush $19,000 in disability benefits before he was terminated.
If you believe you have been the subject of discrimination based upon a disability, feel free to consult with Scott M. Behren and the Behren Law Firm to learn your legal rights.
Even international law firm Sidley Austin Brown and Wood feels it does not have to comply with age discrimination laws.
The Behren Law Firm an employment litigation firm dedicated to representing employees in the workplace.
The case involved an international law firm who allegedly forced 31 former partners out of their ranks of partnership because of their ages. Although the law firm says it did not force the 31 lawyers out of their firm because of their age, they nonetheless settled out of court and the settlement was approved by a federal judge.
The law firm of Sidley, Austin, Brown and Wood allegedly forced out the plaintiffs in this case under a 1999 firm reorganization. The settlement would mean each former employee would receive roughly $860,000 to $1,835,510, depending on their status at the time they were forced out of the firm. It would also stop the law firm from retiring, reducing, expelling, terminating, or reducing the compensation of the partners and changing the status of partnerships based on age. The firm may also not create or continue to have any formal or informal type of policy that mandates partners retire at a certain age, nor may they have a policy in place that the firm may grant permission for a partner to continue to practice after they have reached a certain age.
In this instance, the EEOC brought suit against the law firm under the federal Age Discrimination in Employment Act, which prohibits age discrimination for those more than 40-years-old.
While it has to be said that the international law firm did have a novel defense, it did not stop the courts from deciding for the plaintiffs. The defense was that partners in a law firm are not considered to be employees under the Age Discrimination in Employment Act.
If you believe you have been the subject of age discrimination, feel free to contact Scott M. Behren and the Behren Law Firm for a free consultation.
In many instances these days, employees are forced under threat of termination, to sign non-compete agreements. In many cases, even if signed, they may never be enforceable if the employee elected to go to another company. Make sure and have an employment law attorney check out your non-compete and advise you on your rights since non-compete laws vary greatly from state to state.
In the event, though, that you are a high-level employee, which access to confidential information, your former employer will probably seek to enforce the non-compete agreement. As is the case with Martin Collins and Ford Motor Company.
Ford Motor Co. is suing Martin E. Collins, a former executive it says is violating a non-compete agreement. Ford hired Collins as general sales manager for Ford and Lincoln in March; he began work May 2 at Ford’s world headquarters in Dearborn. Collins managed the entire dealer distribution network for Ford and Lincoln, and provided “ongoing feedback to senior Ford management regarding sales performance, sales trends and progress toward program and budget goals,” according to the lawsuit filed Thursday in Wayne Circuit Court and since moved to U.S. District Court in Detroit.
Ford claims Collins agreed to a confidential information/non-compete agreement prohibiting him from working for a competitor for two years. Collins told Ford he had acquired no confidential information during his tenure at the company.
If you are given a non-compete to sign or have questions about one after resignation or termination, feel free to contact Scott M. Behren and the Behren Law Firm for a free consultation.
As we have blogged on many occasions, discrimination against an employee based upon a disability whether in the hiring process or during performance of the job, is generally illegal under the Americans with Disabilities Act (ADA). Apparently the Federal Transportation Services Administration was so busy perfecting their pat down searches that they forgot these laws apply to them.
Air force veteran Michael Lamarre applied for a transportation security officer position with the Transportation Security Administration (TSA) in 2008. As part of the interview process for the position, Lamarre had to undergo a medical screening. It was during this screening that he disclosed his HIV status.
Despite receiving a letter from his physician that stated Lamarre “is capable of meeting the [TSO] job requirements safely, efficiently and effectively with respect to [her] medical specialty and this candidate’s medical condition and/or diagnosis,” the TSA notified Lamarre in 2009 his HIV status resulted in medical disqualification. Represented by the American Civil Liberties Union, Lamarre fought the decision, claiming discrimination.
In September 2008, the Americans with Disabilities Act (ADA), a law that protects the rights of the disabled, was amended to explicitly cover HIV-positive individuals.
If an employee’s HIV symptoms or medications are interfering with the job requirements, the ADA allows for the employee to request what is known as a reasonable accommodation. A reasonable accommodation is a reasonable change in the work environment or the way a job is performed that allows the disabled person to fill the position.
There are also statutes in many states that prohibit discrimination based upon being HIV positive.
If you believe you have been discriminated against based upon HIV or some other disability, feel free to speak with Scott Behren or the Behren Law Firm for a free consultation.
A refusal to accomodate pregnancy required lifting restrictions or termination in response to pregnancy complications, may be the basis for a discrimination claim under state laws and the Federal Pregnancy Discrimination Act.
An African-American pregnant nurse has filed a lawsuit against her employer claiming she lost her job after provided her employer with a doctor’s note stating that she could not lift more than 50 pounds.
Claiming violations of her civil rights and violation of the Pregnancy Discrimination Act, Jackie Lewis filed suit against Senior Living Properties, doing business as Overton Healthcare Center, on Oct. 25 in the Eastern District of Texas, Marshall Division.
Lewis was employed by Overton Healthcare Center in Overton since September 2004 as a certified nursing assistant.
On Aug. 15, she informed her employer of her pregnancy, according to the lawsuit. Lewis states she had been to the hospital that day and could not report for work. She also missed work on Sept. 1 due to complications of her pregnancy, but claims she submitted the proper excuse from her doctor.
Ten days later, she was reassigned to a position which would require lifting on her part.
As a result, she submitted a note from her doctor limiting her lifting to no more than 50 pounds. The next day, Lewis’ employment was terminated, according to the lawsuit.
The plaintiff is seeking damages for lost wages, insurance benefits, emotional pain and suffering, inconvenience, mental pain and anguish, loss of enjoyment of life, punitive damages, emotional distress, embarrassment, disappointment, indignation, shame, despair,
If you believe you have been the subject of pregnancy discrimination, file a charge with the EEOC or go to an employment law attorney that handles these types of matters such as Scott Behren and the Behren Law Firm.
Sexual harassment in the workplace must be quickly addressed by employees and employers in all cases. However, it is even more important to address where minor employees are involved. In at least one case, the managers of a Dairy Queen did not address the harassment quick enough.
The guardian of a 17-year-old minor has filed a lawsuit against Dairy Queen, claiming the fast food restaurant allowed the teen to be sexually harassed by a co-worker.
Kathryn McCauley, as guardian and next friend of a minor, filed suit against Food Service Holdings Ltd., doing business as Dairy Queen, on Oct. 17 in the Eastern District of Texas, Lufkin Division.
The 17 year old was employed by Dairy Queen in Huntington in June 2010, where she was subjected to discrimination on the basis of her sex, including sexual harassment and retaliation for reporting such harassment, the suit claims.
According to court records, the minor was subjected to a hostile work environment by a co-employee and was told the co-worker would be fired after his 30-day probationary period.
However, McCauley claims that when the probationary period was over, the co-worker was not fired. Instead, the minor was not properly placed on the schedule and given very few hours. The teenager was terminated on Oct. 3, 2010, allegedly for failing to show up to work.
The teen maintains that she was informed that she was not scheduled to work on the date in question and she was really terminated for reporting the sexual harassment.
If you believe you or one of your children has been the subject of sexual harassment in the workplace, speak to an attorney experienced with sexual harassment suits such as Scott Behren and the Behren Law Firm.