$334,500 Age Discrimination Verdict Against Time Warner Cable Upheld on Appeal

ADEA - Age Discrimination in Employment Act

ADEA - Age Discrimination in Employment Act

The 4th U.S. Circuit Court of Appeals has let stand a $334,500 jury verdict for a 61-year-old employee who the company fired over a single incident of backdating a form.

The Plaintiff, Glenda Westmoreland, had worked for a Time Warner Cable subsidiary for more than 30 years, was fired after instructing a subordinate to backdate a form to reflect the date of a related meeting, rather than the date the form was actually completed. TWC initially told her the infraction wasn't serious but later concluded that she had violated company policy prohibiting false statements and created "trust and integrity" issues. While walking her to her car, a supervisor told the Plaintiff, "You’ll get another job. Just go home and take care of those grandbabies.” Westmoreland sued, alleging age discrimination.

A jury found for Westmoreland and, on appeal, the 4th Circuit upheld the verdict. TWC’s "about face" on the disciplinary matter could give rise to a "suspicion of mendacity" about the company’s rationale for firing her, the court said. It also noted that company representatives had testified that there were lesser forms of discipline available. As a result, the court said, the jury could reasonably find that Westmoreland’s firing for one infraction that did not require termination was "such an extreme overreaction as to be pretextual." In addition, the jury could have found that the "grandbabies" comment was made by a supervisor who harbored age bias, the court said.

Age discrimination in employment is illegal, but two-thirds of older job seekers report encountering it. Employees between the ages of 46 and 65 (especially those nearing retirement age) are the most likely to be targeted. Those employees are often let go by employers who perceive them to be more expensive and less valuable than younger replacements.

The Age Discrimination in Employment Act (ADEA) exists to protect individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

You can read the full 4th Circuit opinion here.

IHOP Franchises Agree to Pay $700K and to Create an HR Department to Settle Sex Harassment Suit

IHOP Franchises Settle Sexual Harassment Suit

IHOP Franchises Settle Sexual Harassment Suit

Several IHOP franchises have agreed to pay $700,000 after the U.S. Equal Employment Opportunity Commission (EEOC) sued them, alleging they failed to prevent or correct continual sexual harassment and retaliation against employees (U.S. Equal Employment Opportunity Commission v. Lucinda Management, LLC, et al.No. 2:17-cv-02458 (D. Nev. Feb. 19, 2019)). They will also have to create an HR department of professionals with experience handling and preventing discrimination, harassment and retaliation.

The franchises created a hostile work environment for employees after they ignored worker complaints about harassment, EEOC alleged in its complaint. Furthermore, the restaurants allegedly retaliated against some of the employees who spoke up about the problems, behavior which included reducing work hours, groundless discipline and termination. One restaurant, the complaint said, fired an employee after the worker reported seeing a cook "regularly touch female food servers' genitals and kiss them."

The restaurants also agreed to stop using a “72-hour sexual harassment policy”, which required employees to submit complaints of sexual harassment in writing within 72 hours. This had the obvious effect of preventing valid claims of harassment from being investigated and remedied.

As a part of the settlement agreement, the franchises will work with an EEO monitor who will, among other things, ensure any harassment-related policies, procedures and practices comply with Title VII and the consent decree's requirements.

Read more here…

Jury Awards Administrative Assistant $850,000 in Age Discrimination Lawsuit

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A jury has awarded a Temple University executive assistant $850,000 in an age discrimination lawsuit alleging that, among other things, she was told by her boss, a Chinese national, that "in China, they put women out to pasture at your age" (Briggs v. Temple University, No. 16-248 (E.D. Pa., July 19, 2018)).

After she was fired, Ruth Briggs sued the Philadelphia-based school, claiming age discrimination and hostile work environment during her tenure as an executive assistant to the chair of the university’s computer and information sciences department. Briggs also said she suffered retaliation when she repeatedly complained to the university’s human resources department. The university, however, said she was fired for performance deficiencies.

A unanimous federal jury awarded Briggs compensatory damages of $350,000 for pain and suffering, back pay loss of $250,000 and $250,000 in liquidated damages.

Read local media report here. 

Buc-ee’s Loses Texas Retention Agreement Case

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A year after a trial court ordered that a former employee pay Buc-ee’s close to $100,000 in alleged damages and attorneys fees for breaching an employee “Retention Agreement”, a Texas court of appeals reversed that decision, ordering that Buc-ee’s take nothing on its claims against its former employee and also ordered that it pay for her legal fees as well. (Read my previous coverage of this case here.)

The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement".  

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit.

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00. The trial court found against Rieves and awarded the company nearly $100,000.00 in damages and attorney’s fees.

Last week the court of appeals took that verdict back, ordering that Buc-ee’s take nothing on its claims against Rieves and that it pay for her legal fees as well. The court reasoned that the requirement that Rieves pay back such a large sum of money should she leave the company acted as a restraint of free trade and violated Texas’ employment-at-will doctrine. As a result, it could only be valid if it met the requirements of an actual noncompete agreement, which in Texas is controlled by statute. Because this agreement did not meet those requirements, it was not enforceable. 

Download a copy of the opinion.

 Buc-ee’s will now have to decide whether to appeal the matter further.

Halliburton pays nearly $18.3 million in overtime owed to more than 1,000 employees nationwide after US Labor Department investigation

Employee Rights Under the FLSA

Employee Rights Under the FLSA

In one of the largest recoveries of overtime wages in recent years for the U.S. Department of Labor, oil and gas service provider, Halliburton, has agreed to pay $18,293,557 to 1,016 employees nationwide. The department's Wage and Hour Division investigated Halliburton as part of an ongoing, multi-year compliance initiative in the oil and gas industry in the Southwest and Northeast.

Investigators found Halliburton incorrectly categorized employees in 28 job positions as exempt from overtime. The company did not pay overtime to these salaried employees — working as field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists — when they worked more than 40 hours in a workweek, in violation of the Fair Labor Standards Act. The company also failed to keep accurate records of hours worked by these employees.

Simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime. The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.

The FLSA requires that covered, non-exempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must maintain accurate time and payroll records.

Supreme Court Rules 6-2 Against Tyson -- Workers Win Millions in Back Pay

Supreme Court Rules For Workers in Pay Dispute

Supreme Court Rules For Workers in Pay Dispute

In a victory for American workers, the Supreme Court last week upheld a $5.8 million judgment against Tyson Foods in a pay dispute with more than 3,000 workers at a pork-processing plant in Iowa. You can read the opinion in Tyson Foods v. Bouaphakeo here.

The justices voted 6-2 on to reject new limits Tyson asked them to impose on the ability of workers to band together to challenge pay and workplace issues. The case revolved around the question of whether the workers could bring a class action case. Tyson argued that since each employee spent a different amount of time putting an gear and removing it, they shouldn't be able to sue as a group using "representative evidence" to prove up their case. The court rejected that argument.

“In many cases,” according to the Court majority opinion, “a representative sample is ‘the only practicable means to collect and present relevant data'” to prove that the company being sued was legally at fault.   The opinion went on to provide some guidance to when such evidence would be allowed in such cases.

In this case, the Court was more content to allow such evidence because Tyson Foods had not obeyed its legal duty to keep records on how much each worker had worked as overtime.  Without such records, the employees had to marshal other evidence, and the sample was the best proof available to them.

The case is notable because it represents at least a small opening in the legal wall against group actions that the Supreme Court has been steadily building over the last several years.

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