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Employee Rights Archives

Confidentiality Clauses

Patrick Snay, the former head of a private prepatory school in Miami, Florida lost his $80,000 settlement after his daughter boasted about it on Facebook. Mr. Snay filed an age discrimination complaint when his 2010-2011 employment contract was not renewed. In November 2011, the school and Mr. Snay came to an agreement that he would be paid an $80,000.00 settlement as a resolution to his claims. However, four days after the agreement was signed, Snay's daughter went on Facebook and boasted, "Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT." This message went to the daughter's 1,200 Facebook followers which included current and former Gulliver students.

Non-competes

Non-competition agreements are becoming more common in the employment realm. The agreement requires certain employees or the sellers of a business to not compete with the business for a period of time after they leave. (Non-competition agreements may also include non-solicitation of co-employees clauses and non-disclosure agreements regarding proprietary information which will be addressed in future blogs.) If the former executives are allowed to compete without restriction, the business could easily lose key customers, depriving the business of profits. On the other hand, individuals who are restricted by a non-compete may be deprived of their ability to earn a living.

GINA

Recently, the EEOC settled its first systemic lawsuit alleging violations of the Genetic Information Nondiscrimination Act (hereinafter "GINA") against a nursing and rehabilitation care facility. The EEOC filed a class action lawsuit under GINA against Founders Pavilion, Inc., (hereinafter "Founders Pavilion") a one hundred twenty (120) bed skilled nursing and rehabilitation facility in Corning, New York. The lawsuit alleged that the facility violated GINA by conducting a post job offer, pre-employment medical exam that included questions about the applicant's family medical history and then required the employees to repeat this exam annually. While this case is not the first complaint the EEOC has received about alleged GINA violations, it is the first class action lawsuit filed by the agency concerning the law.

Emergency Unemployment Compensation

On December 28, 2013, about 1.3 million unemployed people will lose federal unemployment benefits. Congress is currently on break after letting a program expire that pays federal benefits to unemployed Americans when their state benefits run out. This one hundred percent (100%) federally funded program called Emergency Unemployment Compensation (hereinafter "EUC"), was created on June 30, 2008, by President George W. Bush, whereby Congress authorized unemployment compensation to help the jobless cope with the recession. A year later, President Barack Obama signed a law giving the unemployed an additional fourteen (14) weeks of benefits. At the height of the recession, Americans could get ninety-nine (99) weeks of unemployment pay; but that number has since dipped to a maximum of seventy-three (73) weeks.

Privacy at Work

An employee's right to privacy in the workplace used to apply only to personal items, storage lockers, mail, and life outside the office. However, when technology entered the equation, the right to privacy became more complicated. Both state and federal laws govern the employer-employee relationship and common problems that can arise with employer monitoring of employee telephone and computer usage.

FMLA

Mr. McArdle is a former teacher in the public schools of the town of Dracut, Massachusetts who began working there in 1997. In 2007, he entered divorce proceedings with his wife and began to drink excessively. Mr. McArdle suffered from depression, anxiety, his home was foreclosed on, and he filed for a personal bankruptcy. Dealing with these personal crises, Mr. McArdle began to miss work. He went to work only ten (10) of twenty-one (21) days in September and did not appear at all in October, November, or December of 2008. His record improved following winter break but in total, he appeared at his job for only eighty-two (82) days in the 2008-2009 school year. These absences exhausted the fifteen (15) days of sick leave and two (2) personal days to which he was entitled. He also borrowed the fifteen (15) days from his 2009-2010 year and deducted fifty-two day for which he did not work and was not paid.

SoulCycle Instructor

SoulCycle is a brand of spinning or indoor cycling classes currently available in New York and California. SoulCycle has fourteen locations and riders pay $34 per class. The week's classes are released for reservations on Mondays at 12:00 p.m. and fill within seconds. Soul Cycle has eighty (80) or so people who audition to be instructors each training period, and it accepts eight to twelve (8-12) of those who audition. The instructors then have to pass an eight (8) week training program. The training program is unpaid but the instructors do not have to pay for the course. Once the employees complete the training, and are determined to "pass," they are assigned to eight (8) classes per week and are given health insurance. The instructors are not allowed to teach at any other gyms but are compensated from $125 to $150 per class or about $1,200 per week.

Lawful Off-Duty Activity Statute

Ms. Charlotte Ruiz was employed as a Family Advocate for Hope for Children, Inc. The organization is a small nonprofit with three employees. Ms. Ruiz met Mr. Seledonio Rodriguez while he was a client with her organization after he was ordered by the District Court to attend a parenting class. To comply with the Court Order, Mr. Rodriguez completed a fatherhood program offered by Hope for Children. Ms. Ruiz was required to verify Mr. Rodriguez's participation in the program and to testify in court regarding the same. After Mr. Rodriguez completed the first program, he took a second parenting class with the organization. Several days later, the pair met at the Colorado State Fair and began a romantic relationship.

Indemnification

Darrel Einsphar was a manager of the special finance department of Quality Mitsubishi, Inc.'s car dealership (hereinafter "Quality"). He and another employee in the department recommended high risk buyers to Premier Members Federal Credit Union (hereinafter "Premier") for car loans. Ms. Einsphar was sued by Premier for fraud for "power booking," a practice of artificially inflating the value of vehicles, thereby creating a better loan to value ratio to induce Premier to approve the car loans. Premier discovered the issue and sued Mr. Einsphar, the other employee, and Quality, their employer, for fraud.

Unemployment Benefits

The Colorado Court of Appeals in Yotes, Inc. v. Industrial Claim Appeals Office, 2013 COA 124 (Co.App.2013) recently heard an appeal from the Industrial Claims Appeals Office regarding unemployment benefits. While rare, unemployment cases do sometimes achieve this final level of review. In Colorado, unemployment benefit insurance is handled through the Department of Labor and Employment. Unemployment Insurance provides temporary and partial wage replacement to workers who have become unemployed through no fault of their own. The newly unemployed worker, also called the claimant, can file a claim for unemployment by either calling the Department of Labor directly or through visiting its website. A hearing officer will review the claim and either grant or deny benefits. Once a decision has been rendered, the employee or employer can appeal the officer's decision and a hearing will be held on the issue. Both employee and employer have the right to be represented at the hearing. The employee or employer can appeal the hearing officer's decision to the Industrial Claims Appeals Office where a panel of three administrative law judges will review the transcript of the original hearing and make a determination. Finally, the employee or employer can appeal the decision of the Industrial Claims Appeals Office to the Colorado Court of Appeals.