Archive for the ‘Wrongful Discharge’ Category
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.
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.
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.
Discrimination is illegal against all pregnant employees not only while they are working for employers, but also during the hiring process. The EEOC is trying to educate Tampa’s Capri Home Care.
The U.S. Equal Employment Opportunity Commission (EEOC) today announced that it filed an employment discrimination lawsuit against Capri Home Care, Inc. for refusing to hire a pregnant applicant into an administrative assistant / billing clerk position at its Clearwater, Fla., facility. Capri Home Care is a home health agency that provides skilled nursing and specialized home health care throughout Central Florida.
According to the EEOC’s suit, Capri’s management was so impressed with the applicant at her initial interview that they immediately extended her an offer for the position starting the next day. Following orientation on the applicant’s first day of work, Capri’s sentiment changed after she disclosed she was pregnant. Within an hour, the EEOC said, Capri rescinded its job offer, claiming it had already offered the position to a former employee. A non-pregnant woman was selected several months later, the EEOC said.
Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court for the Middle District, Tampa Division (EEOC v. Capri Home Care Inc., d/b/a Capri Home Care, Case No. 8:11-cv-02211-RAL-MAP) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency is seeking back pay and compensatory and punitive damages for woman who was subjected to discrimination. The suit also seeks injunctive relief to prevent and correct pregnancy discrimination, posting of anti-discrimination notices, and training of Capri’s managers and employees about equal employment opportunity laws.
If you believe you have been denied employment because you are pregnant, you should file a claim with the EEOC or speak with an employment law attorney that handles pregnancy discrimination matters. Feel free to call Scott M. Behren and the Behren Law Firm for a free consultation.
Well this recent case gives me one more reason to dislike Virginia Tech aside from their last minute win over the Miami Hurricanes this past weekend.
As you know, we have blogged on many occasions about employee rights under the various state and Federal sexual harassment statutes which make it illegal for an employer to harass or discriminate against an employee based upon sexual harassment.
Well, a former Virginia Tech employee has settled a sexual harassment lawsuit in which she claimed her supervisor treated a five-day training session with her “as if the trip was an extended date.”
Getra Hanes, who worked as a fundraiser for the university, will receive $60,000 as part of a settlement reached last week in U.S. District Court in Roanoke.
In her sexual harassment lawsuit, Hanes accused Robert Bailey Jr., her direct supervisor, of repeatedly making sexually inappropriate comments during a five-day training trip to Maryland in 2007.
The lawsuit also said that Bailey held Hanes to different professional standards than he did his male employees, and that he fired her when she complained about the harassment.
On the way to the training session, the lawsuit said, Bailey told Hanes how uncomfortable he was travelling with a young attractive women, then proceeded to ask at length if she was married and whether she was dating.
He later tried to invite himself to her room to discuss the development office’s Moves Management program, emphasizing the first word “so as to focus on the double-entendre meaning of the title,” the suit said.
When Hanes refused, Bailey insisted that she come to his room, where he made her feel uncomfortable by wearing pajama pants, drinking a beer and leaning over her as she sat at a computer, the lawsuit said.
If you believe you have been the subject of sexual harassment in the workplace or by one of your supervisors, make sure and report the matter to Human Resources or to the EEOC. If you are fired or retaliated against based upon your complaints, speak to an employment law attorney on the issue. Scott Behren and the Behren Law Firm handle sexual harassment cases and are available for a free consultation.
Under Federal law, a woman can not be discriminated against or terminated based upon her being pregnant. Typically, there are also state laws, such as in Florida the Florida Civil Rights Act, that mirror the Federal laws. However, agricultural giant Olam International has not been following the law which has resulted in them being sued by the Equal Employment Opportunity Commission (EEOC).
A woman named Jennifer Heintz claims she was offered a job as an executive assistant to two presidents with Olam. She took the job, but three days later, she was told the company was holding off on filling the position. Four days after that, Olam hired another person to fill the position. Heitz contends that the job offer to her was withdrawn based upon her being pregnant. Apparently, the EEOC agreed since the EEOC, in most cases, does not bring suit on behalf of an empoyee.
A lawyer for the EEOC stated, about pregnancy discrimination:
“It remains a serious problem — women not getting jobs, women being forced out of jobs, essentially being fired, and in this case, hired and fired immediately after they learned of the pregnancy.”
And the problem seems to be getting worse. In the five years from 1997 to 2001, the EEOC received 20809 pregnancy discrimination complaints. In the last five years, they received 29088, a 40% increase.
The EEOC further stated, “There is an added stigma because you become pregnant, therefore in the future and after even you have your child, that you will not be a productive worker,” she said. “That’s simply not true.”
If you believe you have suffered termination or discrimination due to your pregnancy, or have been denied Family Medical Leave, feel free to contact Scott Behren and the Behren Law Firm for a free consultation.