Archive for November, 2010

You may recall that I have blogged recently about EEOC complaints that credit checks on job applicants is potentially a violation of Federal discrimination laws. Well now there has been a class action lawsuit filed against the University of Miami based upon the credit checks it performs on job applicants.

The lawsuit, filed on behalf of Loudy Appolon of Miami, Florida, accuses the University of violating Title VII of the Civil Rights Act by rejecting or firing qualified individuals because of their credit background, even though credit history does not predict employment performance. In fact, there is no correlation between credit history and job performance or trustworthiness, and credit reports are often rife with inaccuracies.

Samuel R. Miller, a senior attorney at Outten & Golden LLP, said, “By all accounts, Ms. Appolon was well-qualified for the position – that’s why the University of Miami offered her the job. But instead of evaluating Ms. Appolon on an individual basis, as a person who – like many Americans today – may have struggled with and overcome some personal financial difficulties, and who showed promise to be an excellent employee, the Hospital stigmatized her based on her credit history. When companies act this way, they make it impossible for Americans to break the cycle of lending and bad credit, rebuild their lives, and contribute to their families and communities. And the employers hurt themselves by losing out on some of their best potential workers.”

Sarah Crawford, counsel with the Lawyers’ Committee for Civil Rights Under Law, stated, “The University of Miami’s policies and practices are illegal because they adopt and perpetuate the racial disparities in the credit system. We see this problem occurring in private and public employment across the country, despite the fact that employers, credit reporting agencies, and researchers have found no link between credit history and job performance. At a time when unemployment rates are skyrocketing, particularly for minority jobseekers, this unjustified and discriminatory practice only exacerbates the problem. Employers need to know that the practice is discriminatory and must end.” Ms. Crawford testified about the discriminatory effects of credit checks at an October 20, 2010 hearing of the Equal Employment Opportunity Commission.

According to the Complaint, “Defendants’ hiring policy duplicates the racial discrimination present in the credit reporting system . . . This discriminatory denial of employment affects not only the individuals who are rejected or terminated, but also their families and entire communities, replicating minority under-employment and compounding credit inequities in the process.”

The lawsuit alleges that Ms. Appolon interviewed for a senior medical collector position with the University of Miami, Miller School of Medicine in June 2009. She was offered the position, but the day before she was due to start her new job — after she had already resigned from her previous job — the University informed Ms. Appolon that she would not be hired because of her credit history. “I was shocked,” says Ms. Appolon. “I’ve worked in this industry for years, and my credit was never a problem.”

The case is “Loudy Appolon v. University of Miami, et al.” Class Action Complaint No. 1:10-cv-24166, in the U.S. District Court, Southern District of Florida.

If you have been denied a job based upon a background check on your credit history, you may want to speak with an employment lawyer to discuss your available legal remedies. Behren Law Firm can assist you with these types of issues.

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One of the areas that I have frequently blogged about is the use and enforceability of non-compete agreements between employers and employees. It should be noted that the enforceability of these agreements varies widely depending upon the state in which the employee is located, the employer is located and the actual language used in the agreements.

Todays blog posting stems from a lawsuit filed by Zambelli Fireworks International against one of its rival fireworks companies Pyrotecnico. The dispute stemmed from coveted choreographer Matthew Wood, who quit Zambelli Fireworks Internationale in 2008 to work for Pyrotecnico. Zambelli sued, claiming Wood violated a non-compete clause in his contract.

The lawsuit stated Zambelli hired Wood in 2001, and that he was one of Zambelli’s most creative pyrotechnicians and choreographers. Shows he conducted included a New Year’s Eve celebration in Times Square and college football’s Orange Bowl in Miami.

U.S. District Judge Terrence F. McVerry on Tuesday sided with Wood and dismissed the case. Although four customers left Zambelli for Pyrotecnico — including the Florida Marlins and the Hard Rock Cafe — after Wood left Zambelli, the judge ruled that was not enough evidence to prove Wood violated his contract.

“Zambelli has failed to introduce sufficient admissible evidence to enable a reasonable factfinder to determine that its loss of business was due to wrongful conduct by Wood, as opposed to the mere loss of his services or other competitive factors,” McVerry wrote.

This case shows the importance of the language you put in the non-compete agreements since many non-competes prevent the employee from going to a competitor at all for a period of several years. Apparently that was not the case with the Zambelli contract or they would not have had their claims dismissed. Perhaps, the Zambelli agreement only prevented Wood from soliciting customers upon his departure from Zambelli.

The moral of this ruling is that if you want advice on defending against a claim brought on a non-compete agreement, you need to consult with an employment lawyer who has experience in these types of agreements.

Behren Law Firm has significant experience in representing employees and employer in these types of disputes so feel free to check out our web site www.behrenlaw.com for a free consultation.

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An Orlando woman has teamed up with high-powered attorney Gloria Allred to sue her former employer for gender discrimination and retaliation, after she said she was sexually harassed by managers who commented on her breasts.

Amy-Erin Blakely filed the lawsuit in an Orange County, Florida court on Wednesday and said the harassment at The Devereux Foundation went on for about five years. Blakely managed 900 employees at the nonprofit behavioral health organization that also provides foster and adoptive assistance. Blakely says she worked for the organization in Orlando until she was fired last year after she accused managers of sexual harassment.

“It was very humiliating to know that senior members of our management team would focus on my breasts as opposed to my performance on the job,” said Blakely at a Los Angeles press conference Wednesday.

“She also alleges that someone in management talked about how large her breasts were and that she needed to ‘hide them,’” Allred told the station.

Blakely said she always dressed professionally, was an exemplary worker and had never before been reprimanded. In fact, she said she was promoted and given raises eight times in 13 years. The 43-year-old had risen to the position of Assistant Executive Director, but claims she couldn’t advance any further because her managers said she was “too sensual.”

As many readers of my blog are well aware, sexual harassment in the workplace is prohibited by Florida and Federal law. In addition, if you complain to your employer about sexual harassment in your workplace and are retaliated against or fired, that is simillarly a violation of Federal and Florida law.

If you believe you have been the victim of sexual harassment or retaliation in the workplace, feel free to contact the Behren Law Firm or another attorney experienced in employment law matters.

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In light of the current unemployment rates in Florida and the country it is not suprising that more and more people are seeking unemployment benefits. As a result, more and more unemployment related issues are being hotly litigated in the courts.

One of the recent cases decided last week in Florida ruled upon whether someone who had obtained a new job, but was still participating in unpaid training, was still unemployed and entitled to receive unemployment benefits. Initially, the Florida Agency for Workforce Innovation and the the Florida Unemployment Appeals Commisison refused benefits to Jermain Kennedy on the basis that he had a new job, and was employed, even though he was still engaged in unpaid training. In fact, since some benefits had already been paid to Kennedy, the Agency was seeking repayment of the benefits paid to him.

To be entitled to unemployment benefits, a person must be unemployed. See ยง 443.091(1), Fla. Stat. (2002). Under section 443.036(39)(a) of the Florida Statutes, “an individual shall be deemed `totally unemployed’ in any week during which he or she performs no services and with respect to which no earned income is payable to him or her.”

In light of this statute, the Florida Appeals Court overturned the decision of the Agency and directed that Kennedy was not required to repay the benefits previously paid to him.

The opinion was issued by Florida’s First District Court of Appeal is is entitled Kennedy v. Florida Unemployment Appeals Commission.

For assistance with issues relating to being paid unemployment, you should consult with an experienced employment lawyer.

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