Author Archive: towzey1220towzey

IS A $15 AN HOUR WAGE GOOD OR BAD?


FROM HUFFINGTON POST,  JUNE 29, 2017

In an otherwise bleak landscape for progressive policy, the Fight for $15 has been one of a very few rays of light. Since the day in 2012 when 200 fast food workers in New York City walked out on strike, calling for $15 an hour and the right to join a union, cities and states across the country have raised their minimum wages, and several large private employers have increased pay for their low-wage workers. The National Employment Law Project estimated that as of last year, America’s lowest paid workers had won $62 billion in raises in conjunction with the Fight for $15’s demands.

Seattle is among the leaders in hiking its minimum wage, raising wages in a series of steps based on how many people a business employs, whether workers receive tips, and whether the employer contributes to workers’ health coverage. By the end of 2016, large Seattle employers who did not pay for insurance were required to pay workers a minimum of $13 an hour.

In a careful analysis of food service jobs in Seattle during the period of wage increases, researchers at the University of California Berkeley found that the wage hike succeeded in raising incomes for low-paid workers without impacting the number of jobs. These findings are in line with the bulk of research on the effects of raising minimum wages.

Yet there are powerful interests with a stake in halting the Fight for $15 movement in its tracks and continuing to pay rock-bottom wages. They are trumpeting a different studyreleased this week by researchers at the University of Washington. This research suffers from serious methodological flaws, yet purports to show, in the words of Fox News, that “Seattle’s first-in-the-nation $15 per hour minimum wage law is hurting the workers it aimed to help.”

The reality is that wages have stagnated over the past 4 decades for the vast majority of Americans, and inequality has skyrocketed. Raising the minimum wage is a proven and effective means to put more money in the pockets of working people and begin to close the gap. The Fight for $15’s other central demand—for employers to recognize workers’ right to join a union and bargain collectively—would lift up an even broader range of working Americans, but has been even harder to achieve politically.

It’s no surprise that the Fight for $15 has generated a substantial backlash, nor is it the first time that a poorly conducted study produced findings convenient to corporations and other low-wage employers. Seattle’s economy is booming. Thanks to the minimum wage hike, workers at the bottom of the labor market are able to share in a bit more of the gains.

SUPREME COURT SEES JUSTICE DEPT OPPOSE NLRB

FROM SCOTUS BLOG, 19 JUNE 2017

Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers
It is rare for the Office of the Solicitor General to change its position in a case before the Supreme Court after a change in administrations, even when the party in control of the White House changes. But that is exactly what happened last week, when the Trump administration weighed in on an important arbitration case: The office urged the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.

The about-face came in National Labor Relations Board v. Murphy Oil USA, in which the justices have agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act. In its petition for review on behalf of the NLRB, filed in September 2016, the Solicitor General’s office had argued that such agreements are not, because the National Labor Relations Act protects employees’ ability to engage in joint actions regarding the terms or conditions of their employment. On January 13, 2017, just seven days before the inauguration of President Donald Trump, the Supreme Court granted the NLRB’s petition, along with two others filed by employers (Ernst & Young LLP v. Morris and Epic Systems v. Lewis), and consolidated the three cases for one hour of oral argument.

Under the briefing schedule ordered in the case, the employers in all three cases filed their briefs on June 9, with briefs from the employees and the NLRB to follow on August 9. But on Friday (the deadline under the court’s rules to do so), the United States filed a “friend of the court” brief supporting the employers. The petition for review had been signed by seven lawyers from the NLRB, including its general counsel. Those NLRB lawyers were conspicuously absent from Friday’s brief, which was signed only by lawyers from the Solicitor General’s office. Acting Solicitor General Jeffrey Wall acknowledged that his office had previously filed a petition on behalf of the NLRB, “defending the Board’s view that agreements of the sort at issue here are unenforceable.” But, Wall continued, “since the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.” In particular, Wall explained, the NLRB had not given “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the” Federal Arbitration Act.

In a press release published on the NLRB’s website, the NLRB indicated that Wall had authorized it to represent itself in the Supreme Court proceedings in this case, and nothing in the brief of the United States suggests that the NLRB has changed its position. This means that the NLRB is likely to file its own brief, reiterating its original position in the case, in early August. And if the United States seeks and receives permission to argue in the case, as it virtually always does in cases in which it files “friend of the court” briefs, a lawyer for the United States would argue against a lawyer for a U.S. agency – a phenomenon perhaps even more uncommon than a change in position following a change in administration.

EEOC MAY TARGET UNIVERSITIES FOR DISCRIMINATION

FROM REALCLEAR EDUCATION, 16 JUNE 2017

America’s colleges and universities are, with good reason, under attack for promoting an expensive postsecondary education “bundle” that is increasingly unmoored from the demands of the workforce.  Bipartisan legislation introduced by Senators Bennet and Rubio now aims to bust the accreditation cartel. But like the music and television industries, entrenched colleges and universities have, to date, fought the unbundling of a lucrative $500 billion revenue stream.

For the most part, progressives continue to defend the current system, with free college now core to Democratic Party orthodoxy. But in an ironic twist, the unbundling of higher education may be fueled less by private-sector pressure and would-be disruptors than by decades of progressive policies.

Since the Civil Rights Act of 1964, employers have been prohibited from engaging in “different rates” of hiring or promotion based on race, sex, or origin. Employment policies themselves need not be discriminatory; judges consider whether hiring practices have an adverse impact. Practices are deemed illegal if they result in a deviation of 20% or more, in relation to the advantaged group.

Each year, the Equal Employment Opportunity Commission sends tens of thousands of letters to employers charging them with adverse impact discrimination. Many result from complaints about background checks or assessments that may have an adverse impact on the hiring process. None, however, address college degree requirements, despite the fact that such requirements are increasingly common – including for jobs that may not have required them in the past. According to one estimate, although 65% of executive assistant positions now require bachelor degrees, less than 20% of current EAs have a degree. Across all sectors, similar “credential gaps” range from 10-40%.

On their face, college degree requirements invariably fail the 20% deviation adverse impact test: 42.9% of whites ages 25-29 have bachelor’s degrees compared with just 22.7% of African-American and 18.7% of Hispanics. So one would think college degree requirements in job descriptions would be ripe for EEOC action. According to Associate Dean Charles Sullivan, an employment law expert at Seton Hall Law School, “Remarkably, the answer is almost never. No one is interested in upsetting this apple cart.”

When an enterprising lawyer – or state’s attorney general – finally decides to bring such a case, employers will attempt to show that the ratios of new hires to applicants don’t diverge by more than 20% for any group. That’s true, but only because college degree requirements keep candidates without degrees from applying to good jobs. Proving adverse impact of college degree requirements will require the demonstration that employment policies actually keep qualified candidates from applying. According to Sullivan, “such a case will require experts to prove the statistical case. But it can be done.”

Employers will, in turn, argue that degree requirements are “job-related” and “consistent with business necessity.” One of the few cases on the topic, for example, found that a library’s requirement that applicants possess a Master’s degree in library science was appropriate. Although such an argument may have merit in the case of specialized and graduate degrees, recent data suggests that technical skills now outnumber all other skills in job descriptions across nearly all industries. At a time when university coursework hasn’t kept pace with the rapidly evolving technical demands of our modern workforce, it seems less and less likely that pervasive college degree requirements will withstand legal scrutiny.

As a final defense, employers may argue that they lack capacity to filter candidates in the absence of the objective degree requirement. But this fails to ring true when tens of thousands of American job-seekers are availing themselves of bootcamps and other degree alternatives. LinkedIn Learning recently reported that project management certifications are on the rise, resulting in as much as a 20% salary bump for the so-called “poor man’s MBA.” As an array of microcredentials and digital portfolios signal candidate competencies and Applicant Tracking Systems sort candidates using an array of criteria, alternative hiring measures abound.

And so American employers, committed to using the degree as a crude hiring filter, will be left with “convention” as last defense – a notably unsuccessful argument in anti-discrimination law.

When a case challenging rampant college degree requirements is finally brought – and won – it will not only be a civil rights victory, it will also propel the ‘Great Unbundling’ of American higher education – a major victory for champions of economic mobility and economic growth as more Americans are considered for employment according to their capabilities rather than their pedigrees.

DOL MOVES A RULE THAT COULD FAVOR FRANCHISORS

FROM THE ORLANDO SENTINEL, JUNE 8

Fanchise companies, including many restaurants in the Orlando area, are applauding a move by the Trump Administration’s Department of Labor on Wednesday that could reduce lawsuits against franchisors.

It could also mean less money for employees or customers who sue franchise businesses.

Franchise companies, such as McDonald’s Corp., faced more pressure regarding problems including workplace discrimination or injury in recent years. Under the Obama Administration, the labor department issued guidance that viewed such companies as “joint employers” with their franchise locations.

Wednesday’s labor announcement was terse, just three sentences. It reverses attempts by the department under the Obama Administration to attach greater liability to franchisors or contractors, referred to as joint employers.

The department announced “the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.”

“It is a favorable thing that the franchise industry would be happy to hear,” said Biff Godfrey, an Orlando attorney who previously served as general counsel for TGI Fridays restaurant chain.

Franchises like TGI Fridays are typically owned and operated by small, local businesses. There can be some exceptions to that situation, including if a franchisee owns dozens of locations. But suing a large corporation like McDonald’s is a much more wealthy target.

“It’s an attempt to reach into the deep pocket of the franchisor, rather than the company you actually work for,” Godfrey said. “That concept could potentially end the whole franchise business model.”

He said franchise companies offer basic advice to franchisees about the need to have policies addressing discrimination, harassment and other problems. But the big corporations generally don’t get involved in telling the smaller operators what they should do about such issues.

The news release from the Labor Department said it would continue enforcing the law, though: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction …”

CHIPOTLE IN MAY BE IN CLASS ACTION OVERTIME SUIT

FROM USA TODAY, JUNE 7

A lawsuit seeking class-action status was filed against Chipotle Mexican Grill alleging the fast-food chain failed to adequately compensate some employees for overtime work under a federal rule that went into effect late last year.

The lawsuit, filed this week in U.S. District Court in New Jersey, alleges the company failed to pay overtime to employees under the new overtime rule issued by the Labor Department last year — and that it’s not the only one. Joseph Sellers, a partner at Cohen Milstein Sellers & Toll, who represents the plaintiffs, said the issue may apply to other companies as well.

“For conscientious employers, a suit like this reminds them that the rule is in effect and that they should be paying overtime,” Sellers said. “I don’t fully understand the mind-set that has given rise to this broad belief that companies are not bound by this.”

At the core of the suit is the rule that made more employees eligible for overtime pay. It required employers to pay overtime to any worker who earned up to $47,476. Previously, the companies only had to pay overtime to workers making $23,660 or less. But in late November, shortly before the rule went into effect Dec. 1, a Texas court put enforcement of it on hold so employers didn’t have to pay overtime to workers who had the higher salary threshold. The lawsuit says Chipotle should be required to continue to pay overtime despite the injunction of enforcement of the rule by the Texas court. It contends the Texas injunction did not apply to private employers and the overtime rule would stay in effect until the court issues its final ruling.

The lead plaintiff is a worker named Carmen Alvarez, who was training to become a general manager at a Chipotle restaurant, known as an “apprentice” within the chain. She was working about 10 overtime hours a week and was earning a total of about $43,082 a year, but was denied overtime pay when the injunction was issued.

Chris Arnold, a spokesperson for Chipotle, said the company doesn’t discuss pending legal actions. He added, however, that Chipotle’s employment practices are compliant with applicable laws and specified that “a lawsuit is nothing more than allegations, and the filing of a suit is in no way proof of any wrongdoing.”

Tim Trujillo, a human resources consultant who founded Focus HR in Tehachapi, Calif., said even if the lawsuit was to win in court, it might not be around for much longer if the Trump administration chooses to roll back the rule.

The Labor Department “will probably be reviewing and deciding whether they want to go forward with the same regulations” that came during the Obama administration, Trujillo said.

NON COMPETE AGREEMENTS SPREAD

FROM THE NY TIMES, MAY 13

How Noncompete Clauses Keep Workers Locked In
Restrictions once limited to executives are now spreading across the labor landscape — making it tougher for Americans to get a raise.

By CONOR DOUGHERTY
MAY 13, 2017
Keith Bollinger’s paycheck as a factory manager had shriveled after the 2008 financial crisis, but then he got a chance to pull himself out of recession’s hole. A rival textile company offered him a better job — and a big raise.

When he said yes, it set off a three-year legal battle that concluded this past week but wiped out his savings along the way.

“I tried to get a better life for my wife and my son, and it backfired,” said Mr. Bollinger, who is 53. “Now I’m in my mid-50s, and I’m ruined.”

Mr. Bollinger had signed a noncompete agreement, designed to prevent him from leaving his previous employer for a competitor. These contracts have long been routine among senior executives. But they are rapidly spreading to employees like Mr. Bollinger, who do the kind of blue-collar work that President Trump has promised to create more of.

 

The growth of noncompete agreements is part of a broad shift in which companies assert ownership over work experience as well as work. A recent survey by economists including Evan Starr, a management professor at the University of Maryland, showed that about one in five employees was bound by a noncompete clause in 2014.

Employment lawyers say their use has exploded. Russell Beck, a partner at the Boston law firm Beck Reed Riden who does an annual survey of noncompete litigation, said the most recent data showed that noncompete and trade-secret lawsuits had roughly tripled since 2000.

“Companies of all sorts use them for people at all levels,” he said. “That’s a change.”

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another. Phillip Barone, a midlevel salesman and Air Force veteran, was let go from his job after his old company sent a cease-and-desist letter saying he had signed a noncompete.

Then there is Mr. Bollinger, whose long-running legal battle is full of twists and turns that include clandestine photography, a private investigator, a mysterious phone call and courthouse victories later undone by losses in appeals court.

“This is the strangest noncompete case I have ever been involved with, or even heard of,” said Michael P. Thomas, Mr. Bollinger’s lawyer and a partner at Patrick, Harper & Dixon in Hickory, N.C.

Alan B. Krueger, a Princeton economics professor who was chairman of President Barack Obama’s Council of Economic Advisers, recently described noncompetes and other restrictive employment contracts — along with outright collusion — as part of a “rigged” labor market in which employers “act to prevent the forces of competition.”

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

“It’s one thing to have a bump in the road and be in between jobs for a little while; it’s another thing to be prevented from doing the only thing you know how to do,” said Max Burton Wahrhaftig, an arborist in Doylestown, Pa., who in 2013 was threatened by his former employer after leaving for a better-paying job with a rival tree service. He was able to avoid a full-blown lawsuit.

Noncompetes are but one factor atop a great mountain of challenges making it harder for employees to get ahead. Globalization and automation have put American workers in competition with overseas labor and machines. The rise of contract employment has made it harder to find a steady job. The decline of unions has made it tougher to negotiate.

But the move to tie workers down with noncompete agreements falls in line with the decades-long trend in which their mobility and bargaining power has steadily declined, and with it their share of company earnings.

When a noncompete agreement is litigated to the letter, a worker can be barred or ousted from a new job by court order. Even if that never happens, the threat alone can create a chilling effect that reduces wages throughout the work force.

“People can’t negotiate when their company knows they won’t leave,” said Sandra E. Black, an economics professor at the University of Texas at Austin.

The Right to Walk Away

In 2011, Timothy Gonzalez started working as a labor hand for a company called Singley Construction. He was 18 years old and already a father, and the extent of his education was a high school equivalency test. In other words, he needed money and did not have many options.

Mr. Gonzalez started at a little over $10 an hour in a job he described as “pretty much shoveling dirt.” Nevertheless, he signed an employment contract that included a noncompete clause, enforceable for three years within 350 miles of Singley’s base in Columbia, Miss.

“All I heard — at that age and the situation I was in — was just, ‘If you want a paycheck, sign here,’ and so I signed there and went to work,” said Mr. Gonzalez, who is now 24 and lives in Milton, Fla.

Mr. Gonzalez was later promoted to a job where he operated an environmental drilling rig. After leaving the company two years ago, and subsequently taking a better-paying position with a competitor, Mr. Gonzalez was sued for violating his agreement not to compete.

 

Mr. Gonzalez’s new boss, Gary Hill, owner of Walker-Hill Environmental, an environmental drilling company, said he ignored the suit for two weeks because he didn’t believe it was real.

“I said, ‘There’s no way this will happen,’ but I’ll be danged if I didn’t have to attorney-up and fight the thing,” said Mr. Hill, who settled the case out of court. “It’s ridiculous — it’s slavery in the modern-day form.”

Representatives of Singley Construction declined to comment.

The surprise Mr. Gonzalez got is not uncommon. Many workers, not just blue collar but people who went to college or have an advanced degree, have only a vague understanding of what a noncompete is, and they are often asked to sign one when they have little chance to negotiate.

In a 2011 paper that surveyed technical workers who had signed noncompetes, Matthew Marx, a professor at the Sloan School of Management at M.I.T., found that employers typically presented workers with noncompete contracts when the employees lacked negotiating leverage, on their first day at work, for instance.

“By then, they had said yes to their company, and no to the other companies they were negotiating with,” Mr. Marx said.

Companies have always owned their employees’ labor, but today’s employment contracts often cover general knowledge as well. In addition to noncompete clauses, there are nonsolicitation and nondealing agreements, which prevent employees from calling or servicing customers they have worked with in the past. There are nonpoaching agreements that prevent employees from trying to recruit old colleagues.

Put it all together, and suddenly some of the main avenues for finding a better-paying job — taking a promotion with a competitor, being recruited by an old colleague — are cut off.

Companies say this is a natural reaction in an economy that is more about knowledge and less about sweat. Data makes up a larger share of many companies’ assets, and the more people work around the clock, and remotely, often switching between company-owned and personal devices, the more difficult it becomes to guard it.

“When a person takes a trade secret and walks across the street to another company, how am I going to know that?” said Paul T. Dacier, a longtime technology executive who was once general counsel for EMC Corporation (now Dell EMC), and today serves in the same position for an agriculture technology start-up called Indigo. “And when I do find out, it’s too late.”

The problem is that it can be hard to distinguish true intellectual secrets from the accumulated skills that make workers more valuable. And since few companies want to lose good workers or give out huge raises, these agreements are making their way down the economic ladder to people like hairstylists and sandwich makers, far removed from what is thought of as the knowledge economy.

Noncompete enforcement varies from state to state, and economists have used that disparity to study how they affect businesses and the economy. The results are almost universally negative: Wages, employment and entrepreneurship are all diminished when workers have little leverage to bargain with their employer or leave a job for a better opportunity.

Some workers end up idle, collecting unemployment and using programs like Medicaid. Many others take jobs well below their means, robbing the nation of their skills.

“Two years ago, Phillip Barone left his job doing sales and marketing for a military magazine to take a similar job, with a pay increase of about 10 percent, at a rival publication. A few months later, his old employer sent a letter saying he had violated a noncompete agreement that barred him from working with other military publishers.

Since his new company was unwilling to defend him, and since he was unable to pay the legal bills himself, Mr. Barone resigned and lived on unemployment while looking for a new job, but found nothing. When his unemployment ran out, he took a $15-an-hour job with a landscape firm, where he whacked weeds and planted flowers.

“My whole mission was to do whatever I could to bring in some money to take care of my family and make sure nobody could take my house from me,” said Mr. Barone, who lives in Lake in the Hills, Ill.

Mr. Barone left his landscaping job this year and is now a sales manager elsewhere. And he will be free of his noncompete eventually.

Still, there is evidence that these agreements can reduce wages far beyond the terms of one job or contract. In January, Mr. Starr, from the University of Maryland, and others produced a study showing that technology workers who began their career in a state where noncompetes are strictly enforced made significantly less than their colleagues, regardless of whether or not they left.

“These things slow your ascent up the job ladder,” Mr. Starr said.

Moreover, many burn through their savings and pile up debt while searching for a job from a weakened negotiating position. Several years ago, Patricia O’Donnell, a market researcher in Philadelphia, spent 18 months unemployed after being laid off by a company whose noncompete prohibited her from working for a number of major pharmaceutical companies, thus limiting her prospects in a major local industry. She finally found a job, but only recently got clear of the bills she racked up.

“It took years to get rid of that credit-card debt,” she said.

Noncompetes damage regional economies as well. States with strict enforcement end up suffering a brain drain, by encouraging their best and smartest workers to move elsewhere for better pay.

The great counterexample, which comes up in just about every discussion of the subject, is the growth of Silicon Valley.

California law prohibits noncompete clauses, contributing to the inveterate poaching with which the state’s technology industry was founded. It can be brutal for employers, but it helps raise wages and has created a situation where any company looking to hire a bunch of engineers in a hurry, be it an established giant or a start-up, feels it should locate there.

“It’s not just that it allows employees to leave their company for another job,” said Mark A. Lemley, a professor at Stanford Law School. “It allows them to leave to start new companies.”

Recognizing this, several states have moved to curb the use of noncompetes. This includes Democratic-leaning states like Massachusetts as well as Republican-leaning ones like Utah, which last year passed a bill limiting the scope of the agreements.

Mike Schultz, the bill’s Republican sponsor, framed it with the most conservative of talking points: the right to work. “If an employer can fire anybody for any reason,” he said, “employees also need to have the right to walk.”

Mr. Bollinger, the factory worker in North Carolina, started working when he was 14, and by his senior year of high school, he was the assistant manager of a local shoe store. He didn’t like retail, so in 1982, shortly after graduating, he took a job in the textile industry.

He began in a position that entailed pulling the fabric off cardboard rolls, and worked his way up from there, one job to the next, hourly wages to a salaried position, until eventually he was the quality control manager for two plants owned by a company called TSG Finishing.

TSG is a 115-year-old, family-owned company that works with textile manufacturers and others. It doesn’t make fabrics but is an intermediary, treating them with chemicals and laminates, giving them special finishes and properties like fire resistance.

Mr. Bollinger, as quality control manager, worked with customers to make sure they got what they wanted. Still, he said, the job was about learning a general process, not absorbing any specialized knowledge.

“I don’t know how to make the goop, I just know how to apply the goop,” he said.

TSG would disagree. The company declined to comment beyond an emailed statement, but its lawsuit described Mr. Bollinger as instrumental to the company, and said he knew important details about things like pricing, proprietary processing methods and customer preferences.

In 2007, in exchange for a $3,500 bonus and a $1,300 annual raise that brought his salary to a little over $70,000, Mr. Bollinger had signed an employment agreement that included a confidentiality clause and noncompete agreement. The list of prohibited territories began with a list of states and ended with “North America.”

Then the financial crisis struck, leading to bankruptcies and layoffs across the textile industry. “I saw people get laid off that I didn’t think would ever lose their job,” Mr. Bollinger said.

His pay shriveled, and by 2013, after TSG had gone into and out of bankruptcy, he was on pace to make about $61,000, according to income statements he provided. Six miles away, however, the economic recovery was taking hold.

The assets of Premier Finishing, a TSG competitor that had also fallen into bankruptcy, were purchased by American Custom Finishing, which was owned by a chemist and entrepreneur named Gary Harris.

The two spoke, and eventually Mr. Harris offered Mr. Bollinger a job and a raise, to $75,000, a little above his pre-recession pay. Mr. Bollinger said American advised him to check his employment agreement, and a lawyer he hired said that the noncompete was probably unenforceable.

He assumed his defection wouldn’t go over well, so on the day he gave notice, while his boss considered the rival’s offer, he quietly packed up his office and loaded things like his family pictures and a framed B.B. King concert ticket into his car. It turned out to be a good idea; a few hours later, he was escorted off the property.

Two months later, he was served papers at work: TSG had sued him for violating his confidentiality and noncompete agreements, and had asked a court to remove him from his job. The suit did not allege that Mr. Bollinger had stolen anything, but said he knew so much about TSG’s business that he would “inevitably” disclose trade secrets that the company wanted to protect.

Calvin E. Murphy, a superior court judge, did not grant TSG’s wish. In a written order, Judge Murphy said, “Enforcement of the noncompete provision in the manner articulated” by TSG would effectively bar Mr. Bollinger “from seeking employment anywhere in North America in the only profession he has practiced since graduating high school.”

TSG appealed, however, and the North Carolina Court of Appeals reversed the decision. A little after that, Mr. Harris, American’s chief executive, called Mr. Bollinger at home and told him not to return to work.

“My heart was broken,” Mr. Bollinger said.

About a year after the Appeals Court decision, TSG filed an amended complaint against Mr. Bollinger and others, alleging that he had quietly continued working for American even while the injunction was in place, and asking the court to prohibit him from working there ever again.

The new complaint cited evidence, like photos of Mr. Bollinger’s wife’s car parked at American’s facility, and a phone call TSG had received from “a female who would not reveal her identity,” who said Mr. Bollinger had continued to work there. At one point, TSG hired a private investigator to look into it.

“It is regretful that a great deal of money and resources have to be spent in our court system which could be otherwise spent on employee raises or investing in new equipment to make us more competitive,” Mr. Harris said in an emailed statement.

Perhaps more important, the whole ordeal had caused a “strain” between TSG and its customers. The complaint said that in 2015 one customer had said it planned to transfer its business to American; another had asked TSG to resolve the dispute in a way that allowed Mr. Bollinger to continue at his new job.

“When a competitor has the opportunity to poach that knowledge without making the investment in research and development, it gives them an unfair advantage, which a three-judge panel agreed happened in this case,” said Jack Rosenstein, TSG’s chief executive, in an emailed statement.

As with everything else in business, the case came down to money. This past week TSG accepted a $200,000 offer of judgment from American and the other defendants, freeing Mr. Bollinger from the lawsuit. The case had gone on so long that the noncompete has lapsed, and Mr. Bollinger has found another manufacturing job elsewhere.

But the financial scars remain: Mr. Bollinger and his wife, Sandie, drained their savings to pay the legal bill. They have borrowed from friends and relatives, and racked up $50,000 in credit card bills and other debt.

Mr. Bollinger said the saddest part to him is that such a small sum of money, the $14,000 raise from American, could have started the whole dispute in the first place.

During a recent interview, he talked about his last day at TSG and the emotions of walking away from a plant where he had worked for two decades. That job, and the advancement that came with it, had given him the means to raise a family, as well as middle-class luxuries like the musical instruments in his house and the framed concert tickets he hung on his office wall.

“If all they would have said is, ‘Keith, we want to keep you, and we are going to reinstate your pay,’” he said, “I would have taken all that stuff out of my car and hung it back up in my office.”

EEOC SUES RUBY TUESDAY RESTAURANT

FROM AN EQUAL EMPLOYMENT OPPORTUNITY COMMISSION NEWS RELEASE: 17 MAY 2017

FOR IMMEDIATE RELEASE May 17, 2017

EEOC SUES RUBY TUESDAY FOR AGE DISCRIMINATION
Boca Raton Restaurant Refuses to Hire a Qualified Applicant
Because It Wanted to ‘Maximize Longevity’, Federal Agency Charges

FORT LAUDERDALE, Fla. – Ruby Tuesday, Inc., a national casual dining restaurant chain, violated federal law by refusing to hire a qualified applicant at its Boca Raton, Fla., location because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s suit, the company declined to hire a qualified applicant with over 20 years of experience in the food and beverage industry for a general manager position at its Boca Raton restaurant. In response to an inquiry by the applicant as to why Ruby Tuesday declined to hire him, the company informed him it was seeking a candidate who could “maximize longevity.”

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit against Ruby Tuesday, Inc. in U.S. District Court for the Southern District of Florida, Fort Lauderdale Division (EEOC v. Ruby Tuesday, Inc., No. 1:17-cv-21817) after first attempting to reach a pre-litigation settlement through its conciliation process. The suit seeks injunctive relief and compensatory and liquidated damages.

“In the South Florida area, we represent the interests of many different people,” said Michael Farrell, director of the EEOC’s Miami District Office. “Age cannot be a factor in whether or not someone can earn a living.”

Robert Weisberg, regional attorney for the Miami District Office, added, “The ADEA was put in place precisely to protect people against this type of conduct. The bustling hospitality industry needs to be reflective of all of the members of our community.”

One of the six priorities in the EEOC’s Strategic Enforcement Plan for 2017-2021 is to eliminate barriers in recruitment and hiring.
The Miami District Office’s jurisdiction includes Florida, Puerto Rico and the U.S. Virgin Islands.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

 

EEOC wins on Pregnancy Case

FROM A NEWS RELEASE FROM THE EEOC, 3 MAY 2017

Brown & Brown Insurance Brokerage Firm Settles Pregnancy Discrimination Lawsuit for $100,000

Job Offer Rescinded After Company Learned of Applicant’s Pregnancy, Federal Agency Charged

ORLANDO, Fla. – Daytona Beach-based insurance brokerage firm Brown & Brown will pay $100,000 and furnish significant relief to resolve a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s suit, Brown & Brown made a written job offer to the applicant and also sent her an employment agreement for a “personal lines technical assistant” position at its Daytona Beach location and proposed employment start dates. Upon receipt of the offer letter, the applicant affirmed her interest by email and sought to ask a few questions regarding the offer. About two hours later, the applicant spoke with the department leader’s assistant and inquired about maternity benefits because she was pregnant. The assistant immediately advised the department leader of the applicant’s pregnancy and, minutes later, according to the suit, the applicant received an email from the company rescinding the job offer, stating that it “had a very urgent need to have somebody in the position long term …We appreciate you telling us beforehand.”

Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. EEOC filed suit in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. w Brown & Brown of Florida, Inc., Case No. 6:16-cv-1326-ORL18-DAB) after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree resolving this case provides for the adoption and distribution of a policy on pregnancy discrimination, training of managers, supervisors and human resources personnel at the company’s Daytona Beach location, as well as employees at all other Brown & Brown Florida locations. The training will cover sex discrimination, including pregnancy discrimination. Brown & Brown also agreed to provide annual inform­ation to EEOC during the two-year monitoring period concerning its handling of pregnancy discrimination complaints.

“The Pregnancy Discrimination Act requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work,” said Michael Farrell, the EEOC’s Miami District director. “This includes treating pregnant employees the same as others at the hiring stage.”

EEOC Miami District Regional Attorney Robert Weisberg added, “The decision to hire should be based upon an applicant’s qualifications, not stereotypical assumptions about pregnancy, motherhood or other caretaking responsibilities.”

The Miami District Office’s jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

Hugging can create a hostile work environment

FROM LA TIMES, FEBRUARY 23

Hugging can create a hostile work environment.

In a decision Thursday, a three-judge panel of the U.S. 9th Circuit Court of Appeals revived a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto, who was charged with hugging a female correctional officer more than 100 times over a 12-year period.

Prieto argued he also hugged male employees. If he hugged women more, his lawyers said, it was because of “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”

But the 9th Circuit said hugging can create an abusive work environment if it is both unwelcome and pervasive.

Victoria Zetwick, the correctional officer who sued the sheriff, also charged that Prieto once kissed her when congratulating her on her marriage to another deputy.

She said she saw Prieto hug dozens of other female employees during her 12 years in the department but give male employees mere handshakes.

In defending against the suit, Yolo County said Zetwick admitted that she had hugged male co-workers occasionally.

The county also pointed to a declaration in which Zetwick described Prieto’s hugs as brief. He made no sexual comments or touched her otherwise, the county said.

Still, the court said, Zetwick argued his hugs were “chest to breast.”

A federal district judge dismissed Zetwick’s lawsuit in 2014. But the 9th Circuit said she had offered enough evidence to possibly persuade a reasonable juror that she had suffered from sexual harassment.

“She submitted evidence from which a reasonable juror could conclude that, even if Prieto also hugged men on occasion, there were `qualitative and quantitative differences’ in the hugging conduct toward the two genders,” wrote District Court Judge Mark W. Bennett, a senior judge from Iowa who was filling in on the 9th Circuit.

She said in her suit that Prieto’s conduct made it difficult for her to concentrate. She was constantly stressed and anxious, she said, and she had to resort to taking medication for sleep.

Prieto’s hugs, she argued, had sexual overtones.

A spokesman for the sheriff’s office said he could not comment on the decision while the litigation was pending.

FRANCE HAS NEW LAW ON SMARTPHONES FOR WORKERS

WILL THIS LAW SPREAD TO USA?

Paris (AFP) – French companies will be required to guarantee a “right to disconnect” to their employees from Sunday as the country seeks to tackle the modern-day scourge of compulsive out-of-hours email checking.

From January 1, a new employment law will enter into force that obliges organisations with more than 50 workers to start negotiations to define the rights of employees to ignore their smartphones.

Overuse of digital devices has been blamed for everything from burnout to sleeplessness as well as relationship problems, with many employees uncertain of when they can switch off.

The French measure is intended to tackle the so-called “always-on” work culture that has led to a surge in usually unpaid overtime — while also giving employees flexibility to work from outside the office.

“There’s a real expectation that companies will seize on the ‘right to disconnect’ as a protective measure,” said Xavier Zunigo, a French workplace expert, as a new survey on the subject was published in October.

“At the same time, workers don’t want to lose the autonomy and flexibility that digital devices give them,” added Zunigo, who is an academic and director of research group Aristat.

The measure was introduced by Labour Minister Myriam El Khomri, who commissioned a report submitted in September 2015 which warned about the health impact of “info-obesity” which afflicts many workplaces.

Under the new law, companies will be obliged to negotiate with employees to agree on their rights to switch off and ways they can reduce the intrusion of work into their private lives.

If a deal cannot be reached, the company must publish a charter that would make explicit the demands on and rights of employees out-of-hours.

Trade unions in France which see themselves as guardians of France’s highly protected workplace and famously short working week of 35 hours have long demanded action.

But the new “right to disconnect”, part of a much larger and controversial reform of French labour law, foresees no sanction for companies which fail to define it.

– Work-life balancing act –

Left-leaning French newspaper Liberation praised the move in an editorial on Friday saying that the law was needed because “employees are often judged on their committment to their companies and their availability.”

Some large groups such as Volkswagen and Daimler in Germany or nuclear power company Areva and insurer Axa in France have already taken steps to limit out-of-hours messaging to reduce burnout among workers.

Some measures include cutting email connections in the evening and weekends or even destroying emails automatically that are sent to employees while they are on holiday.

A study published by French research group Eleas in October showed that more than a third of French workers used their devices to do work out of hours every day.

Around 60 percent of workers were in favour of regulating to clarify their rights.

But computing and work-life balance expert Anna Cox from University of College London (UCL) says that companies must take into account demands from employees for both protection and flexibility.

“For some people, they want to work for two hours every evening, but want to be able to switch off between 3-5 pm when they pick their kids up and are cooking dinner,” she told AFP.

Others are happy to use their daily commute to get ahead before they arrive in the office, she explained.

Furthermore, the world of work is changing as rapidly as technology, with more and more employees working remotely or with colleagues in other time zones.

“Some of the challenges that come with flexibility are managing those boundaries between work and home and being able to say ‘actually I am not working now’,” she said.

One of the positive effects of the law will be to encourage “conversations with people working together about what their expectations are.”