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A free market requires a free labor market, and yet many of the politicians who claim a free market as a central component of our democracy actively work against the formation and maintenance of a free labor market.

A free labor market means workers are free to work for the companies they want to work for, doing the kind of work they want to do, but many companies have been using things like non-compete agreements and anti-poaching restrictions to keep workers from leaving to work for competitors.

The problem with such restrictions is that a labor market in which employees have more options is a more competitive labor market. When employees have the option to leave to work for another company that’s offering them more money, they have the opportunity to either leave their current employer in favor of higher wages or to stay and negotiate higher wages with their current employer. More freedom means more bargaining power, but companies have been actively working to restrict that freedom – and by extension, that bargaining power.

Anti-poaching restrictions have become the latest method companies have used to try to keep employees right where they want them. Fast food restaurants, in particular, have been using anti-poaching clauses in their contracts with franchisees in order to make sure franchisees don’t poach employees from each other. Such clauses usually forbid franchisees from hiring applicants who are current or recent employees of the parent company or any of its other franchisees without the express permission of the current or previous employer. Continue reading

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While it’s always a good idea to put agreements in writing, taking that step isn’t always enough to guarantee that everyone involved will continue to abide by the terms of the contract, even if they all sign their names to it. When one or more parties violates the agreed-upon terms, you can sue them for breach of contract and get the court to issue an injunction requiring them to abide by the terms of the contract, but sometimes even that isn’t enough. Below are just a few examples of what can happen when people insisted on having it their own way.

A Salesman’s Gotta Sell

John Osborne worked as a salesman selling business forms for Uarco, Inc. The employment agreement he signed with the company included a non-compete clause that said Osborne would not sell business forms for any of Uarco’s competitors. After Osborne’s employment with Uarco ended, he went to work selling similar business forms for one of Uarco’s competitors. Uarco sued him for breach of contract and succeeded in obtaining an injunction from the court that, in part, forbade Osborne from reaching out to certain customers of Uarco for a period of two years. But the injunction had a loophole that let Osborne sell to a customer of Uarco if the customer expressed a desire to purchase business forms in an open bid situation (meaning different vendors submit a request for proposal and the customer goes with the lowest price).

Uarco then accused Osborne of being in contempt of court by violating the injunction when he contacted Uarco customers. When the court looked into the accusations, it found that Osborne had violated the terms of the injunction more than 100 times. Osborne admitted to contempt on two counts but claimed the rest of the customers did not fall within the limitations of the court’s injunction against him. The court disagreed and imposed further injunctions of an additional 190 days against him, as well as monetary sanctions.

Osborne appealed that decision and the case went before the Supreme Court of Kansas, which upheld the lower court’s ruling of the extended injunction and also awarded Uarco almost $10,000 to cover their legal costs in filing the lawsuit and arguing their case and an additional $10,000 fine. Continue reading

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Most of us have heard of “Equal pay for equal work,” but what about “Equal pay for comparable work”?

Massachusetts has a new labor law that requires employees to be paid equally for “comparable work” regardless of differences such as race or gender. It was passed in 2016, but did not go into effect until July of this year so employers could have a chance to rectify their compensation disparities before the law went into effect. According to a new wage and hour lawsuit, the Boston Symphony Orchestra failed to rectify its alleged disparities before the deadline.

Elizabeth Rowe, the orchestra’s principal flutist, alleges she is paid 75% less than John Ferrillo, the principal oboist, who Rowe claims is her closest comparable colleague.

While a difference of 25% may not seem significant, Rowe alleges it means she is paid $70,000 a year less than Ferrillo. Despite the pay difference, Rowe and Ferrillo play next to each other and both have positions of leadership in the orchestra, as well as artistic roles that are equally demanding. Rowe, who joined the Boston Symphony Orchestra in 2004 after having played in Baltimore, Washington, and Indiana, is one of the orchestra’s most prominent performers. She has been a featured soloist with the Boston Symphony Orchestra 27 times, which is more times than any other member of the orchestra, according to the lawsuit. Her performances have also gained critical acclaim.

What’s more, Rowe has been featured in marketing campaigns and fundraising tours and events, including a trip to Japan in 2017, in which she was the only featured soloist aside from Jessica Zhou, the principal harpist who also happens to be the only other female principal player in the orchestra. While determining pay is often a complicated process with many factors that go into it, it does seem odd that someone who gets featured in solos and actively promoted as the face of the Boston Symphony Orchestra should not be among its most highly-compensated members. Continue reading

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Although “Title IX” has become almost synonymous with “campus sexual assault,” that’s not all the federal law covers. It was designed to protect students and staff from all forms of gender discrimination, including limited sports opportunities, which is the issue at the heart of a new lawsuit against Eastern Michigan University. According to the lawsuit, the school shut down several women’s sports teams, including their tennis and softball teams.

Despite the fact that cuts were announced just earlier this year, legal experts have been referring to the discrimination case as “retro” because it feels like something that would have happened in the 1990s but shouldn’t be a problem in 2018. And yet, that’s exactly why Title IX was created in the first place – to ensure that female students are not only treated fairly but that they receive the same opportunities as their male counterparts.

Women’s sports, along with men’s nonrevenue sports (such as wrestling and swimming) have long been considered expendable by schools that continue to funnel millions into their football and men’s basketball teams. While it feels like it should be an outdated discussion, the sad fact is that it remains all too relevant.

Despite claims that it’s all about the money, Eastern Michigan University’s faculty union did its own set of calculations, which it spread through a media campaign it set up. They found that cutting women’s tennis and softball (as well as wrestling and men’s swimming and diving) would actually cost the university money. Continue reading

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There are many different forms of discrimination happening every day all over the country, but no one ever wants to believe they’re the target of discrimination. It’s common for people to attribute unfair or disrespectful treatment to their own failings, or maybe other circumstances of which they may not be aware. It takes a lot for someone to file a discrimination lawsuit, but Julianne Taaffe and Kathryn Moon finally hit their limit.

The two women, now in their sixties, have been teaching English as a second language at Ohio State University to students from 40 countries since 1983. Normally, one would consider having decades of experience under their belt something to be proud of, but when a new program director took over in 2009, the women began to suspect that their talents weren’t being valued.

According to the employment discrimination lawsuit, the new program director allegedly disparaged Taaffe, Moon, and other veterans in their department, while promoting workers who were younger and less experienced.

At first, the women thought they were doing something wrong, but they both consistently received stellar reviews of their work. It wasn’t until 2010, when their boss sent an email to an acquaintance at another university bemoaning the fact that he had to deal with workers who were averse to change, many of them over 50 years old and contemplating retirement. Then he allegedly compared them to hippos. When he sent it, he accidentally copied a member of his own staff. Continue reading

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Many employers still use the fluctuating workweek to manage the payroll of employees who have to work some weekends, but not others. The employers claim it all evens out in the end, but employee advocates say otherwise, especially when it comes to overtime.

The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week. That means any time an employee works more than forty hours within a seven-day time span is overtime, but with fluctuating workweeks, it doesn’t always get counted as overtime. For example, if an employee works six days in a row, but one or more of those days count towards another pay period (in which they have, let’s say, two days off before going back to work) then that sixth day in a row of work never gets counted as overtime, even though it should under the current labor law.

One of the latest companies to be hit with an overtime class action lawsuit as a result of their fluctuating workweek schedule is Cerner, a health information technology company. The employment lawsuit, which was initially filed in 2014, alleged Cerner used a payroll processing system that system failed to properly calculate workers’ overtime wages by not including all the wages, commissions and bonuses they had earned into their regular rate of pay, in addition to the allegedly unfair fluctuating workweeks. When they did pay workers for overtime hours, they allegedly did so a full pay period late. Continue reading

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Video surveillance has done many wonderful things for the security and law enforcement industries. More than a few movies and TV shows include a dramatic reveal in which they show the suspect the video footage that caught them in the act. But Jeanette Ortiz claims never got that dramatic reveal.

Ortiz worked as a manager for Chipotle in their Fresno, California location up until 2015 when she was fired for allegedly stealing $626 in cash from the restaurant’s safe. Ortiz was told that surveillance cameras had caught her in the act, but she was never shown the video footage. Instead, she was told the evidence had been destroyed, but Ortiz wasn’t willing to leave it at that. She sued Chipotle for wrongful termination.

Wrongful termination is a very difficult case to win since most states (including California) are at-will employment states, meaning employers don’t need a reason to fire their workers, as long as they don’t have a written agreement with their employees that explicitly states they can only be fired for specific reasons. And in fact, Chipotle may have been able to get away with it if they had simply fired Ortiz without an explanation, but the elaborate alleged plot designed to defame her made her suspicious.

Not only is the alleged plot itself suspicious (since Ortiz maintains she never stole anything from her employer), but the timing is also enough to set off alarm bells, both to Ortiz and the jury that heard her case. Prior to the accusation of theft, Ortiz had put in a claim for worker’s compensation for a wrist injury she had suffered as a result of carpal tunnel, which she claimed was a result of fulfilling her duties at Chipotle. Continue reading

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It’s common for employers to ask job candidates about their work history and salary requirements, but what about when companies start asking about a candidate’s salary history? Is that legal?

The difference between salary requirement and salary history is that a salary requirement is a compensation you are asking for the job for which you are applying, whereas salary history refers to what you were paid in previous positions. A potential employer asking for your salary requirement is perfectly fair and legal, but asking for your salary history is another matter entirely.

Women’s rights advocates have long pointed out the unfairness of gender discrimination when it comes to how much employers are willing to pay their workers, and they say the problem often starts with asking candidates what they earned in previous positions. Since payment disparities between the genders have existed for decades, using a candidate’s salary history to determine how much they should be paid in a new position is often just a way to perpetuate that disparity. Many cities and states across the country have started prohibiting employers from asking candidates about their salary history for that very reason. Continue reading

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It’s confusing. Not only do employers need to be aware of all the federal, state, county, and city laws that apply to their business, but they also need to keep up when those laws change – which is pretty much constantly. For this post, we’ve compiled some of the most significant changes to employment law that have recently gone into effect.

Sexual Harassment Policies

This is less a change in the law than a change in the culture. The Illinois Human Rights Act of 2013 made sexual harassment in the workplace illegal, and also made it illegal for employers to retaliate against workers who file a sexual harassment claim against them. Nevertheless, most women have long been intimidated into staying quiet about any unwanted advances or sexual violence, and most companies had an unwritten policy of protecting those who committed acts of sexual violence, especially when they held high-level positions.

But 2018 has seen that change in a big way and companies that fail to properly address allegations of sexual misconduct are going to pay the price. More and more women have been empowered to speak up about their experiences and naming their accusers – and the companies who covered it up.

Many of these allegations are not isolated incidents. Instead, victims claim their workplace fostered an environment that encouraged sexually aggressive behavior, and making such claims publicly can hurt their employer’s business and their brand. The result is a heavy cost they’ll have to pay in lost business for months, or even years. So companies would do well to get ahead of any potential problems, not only by updating their workplace conduct policies, but by training staff on appropriate workplace behavior, instituting regular retraining, and making it easy for those who have been attacked to file a claim. Continue reading

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It’s common for employers to screen job candidates for indications of a criminal history before offering to hire them. Many people who have been convicted of a crime are automatically disqualified for jobs, regardless of the crime they committed or how the rest of their history shows they’ve made active strides in amending their mistakes and moving on to become better citizens.

Unfortunately, people of color (primarily African Americans and Latinos) are more frequently incarcerated and charged with crimes (especially violent crimes and those relating to drugs) than their white counterparts, despite representing a significantly smaller portion of the population.

According to a recent civil rights class action lawsuit against Target Corp., the retail giant’s background check on job candidates allegedly resulted in employment discrimination against Latinos and African Americans. The class of plaintiffs included more than 41,000 Latino and African-American candidates who were denied employment at Target as a result of a criminal background screening that Target used between May 2008 and December 2016.

Target has since reached a settlement with the class of plaintiffs for $3.7 million, although it’s not clear how many of the plaintiffs will be receiving a piece of that pie.

As part of the settlement agreement, Target has also agreed to provide priority hiring rights to Latinos and African Americans who applied for jobs at Target starting May 11, 2006, but was denied based on their criminal background checks. For the plaintiffs who can’t benefit from that particular provision because they’ve retired or they have a military, medical, or family obligations, they will be eligible to receive up to $1,000 in compensation. Continue reading