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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

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As companies have drastically increased their use of arbitration agreements in their employment contracts, workers have increasingly challenged those contractual provisions. Many courts have consistently struck down such agreements as unenforceable because they restrict an employee’s right to due process by denying them access to the court system in the event that they have a dispute with their employer.

On the other hand, other courts have upheld questionable arbitration agreements, so it was only a matter of time before the U.S. Supreme Court was going to hear a case on a matter that has increasingly impacted workers all over the country. Our courts need a decision from the top court in the country to guide them, so they can all start ruling consistently on this important matter.

That day is near as the U.S. Supreme Court is currently hearing three cases, all of which deal with the question of whether companies should be allowed to include arbitration agreements in their employment contracts.

Amidst the legal debate comes a study whose results will not be surprising to employee advocacy groups across the country: According to a recent survey conducted by Alexander Colvin, a professor at Cornell University, 59.1% of African-American workers, 57.6% of female workers, and 53.5% of male workers are working under employment contracts that include arbitration agreements. Continue reading

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Companies initially started using non-disclosure agreements (NDAs) to protect their trade secrets and sensitive information about the business that could be used against them if it got into the wrong hands, but some companies have attempted to stretch the limits of what NDAs can do for them. Some companies have made non-disclosure agreements in their employment contracts so broad as to prohibit their workers from talking about almost anything having to do with their work.

But a court can invalidate an NDA if the judge determines that the agreement is too broad, which they will usually do if they find sufficient evidence that the agreement extends beyond protecting the company’s legitimate business interests and/or inhibits the rights of the employees.

Some states, including California, Pennsylvania, and New York have proposed legislation to limit an NDA’s ability to prevent workers from speaking out about harassment and discrimination in the workplace.

Currently, Chloe Caras, a former restaurant manager for Mike Isabella, is accusing the former “Top Chef” contestant of sexual misconduct, and of promoting and maintaining a work environment in which sexual harassment was not only allowed but actively encouraged. She filed a federal lawsuit asking for the NDA she signed to be invalidated so she could speak out about her unpleasant experiences working for Isabella.

Isabella and his team maintain that their NDAs were designed only with the intention of preventing any leaks of any information about a new restaurant’s opening ahead of when they were ready to announce it. Far from trying to intimidate employees into silence, the restaurant claims workers were encouraged to report any incidents of misconduct. Continue reading

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Once again, our economy is changing. Just like the industrial revolution brought new opportunities for advancement, the digital economy is also bringing with it new ways for people earn a living – either full time or on the side. While this can bring tremendous opportunity for enterprising workers, companies have taken advantage of the new “gig economy” by classifying their employees as independent contractors, even if they don’t qualify.

While working as an independent contract can come with perks like being able to make your own hours, there are downsides, such as paying your own Social Security and self-employment tax. At the same time, companies using independent contractors don’t have to pay Social Security or employment tax on their independent contractors, although they do sacrifice a certain amount of control over the workers as a result, and they usually pay a little more by the hour, day or project.

But lately it seems like companies want to have their cake and eat it, too. Lawsuit after lawsuit has been filed against major companies for allegedly misclassifying their workers as independent contractors, even when they allegedly don’t meet all the requirements. Such a situation puts workers at a significant disadvantage when they have to bear all the financial burdens of being an independent contractor, without any of the perks.

The California Supreme Court has recently agreed to hear a case involving such allegations against Dynamex Operations. In doing so, the court may decide to reconsider California’s previous definition of “employee” and the Court may decide on a new test to determine whether a worker is an employee or an independent contractor. Since 1989, courts have been using the Borello test, but that might not be enough to handle the needs of workers almost 30 years later. Continue reading

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For years we have been seeing more and more companies trying to force their employees into arbitration agreements – meaning they can’t file class action lawsuits against the company, and even if they’re successful in arbitration, the private nature of arbitration means they can’t let other employees (or potential employees) know about their claims or the outcome. Now Baylor University Medical Center is allegedly trying to stop employees from participating in lawsuits against the company, even after their employment has been terminated.

According to the National Labor Relations Board (NLRB), Baylor was allegedly trying to restrict an employee’s rights beyond her work for the company by including clauses in her contract that offered her $10,000 in exchange for refusing to participate in other claims brought against the company, unless required to do so by law. They also required her to keep confidential any information about Baylor that she may have acquired while working there, and to refrain from making any disparaging remarks about the company.

The law recognizes a need to balance the needs of a business to protect itself and its interests against the need to protect workers’ rights. That’s why confidentiality and non-disparagement clauses can be enforceable in employment contracts, but only if the company can prove that such clauses are necessary for protecting their legitimate business interests. According to an administrative law judge (ALJ), Baylor failed to put forth any legitimate business interests that would be endangered without the presence of their confidentiality and non-disparagement clauses in their employment contract. Continue reading

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Of the low paid, hourly employees who are susceptible to getting ripped off by their employers through underpayment and refusal to pay for work performed, delivery drivers are one of the most vulnerable groups. They are tipped employees, which means employers can pay them the reduced minimum wage of $2.13 per hour as long as the combination of their tips and wages equals at least the regular minimum wage. If their tips and wages do not add up to the regular minimum wage, the employer is required to make up the difference with additional wages.

Delivery drivers have an especially hard time making ends meet because, in addition to living expenses, they also generally have to supply their own vehicle in order to make the deliveries. That means car insurance, gas, and the costs of maintaining the vehicle, all of which can add up quickly. As a result, several companies who offer delivery services have been hit with allegations of wage and hour violations by their delivery drivers who claim that, when the costs of maintaining a vehicle to perform the deliveries are taken into account, they earn less than the legally required minimum wage.

One such lawsuit has recently been filed against Domino’s Pizza and two of its Illinois franchisees by a class of current and former delivery drivers who claim they are being paid less than minimum wage. The lead plaintiff in the wage and hour lawsuit, Samantha Young, used to deliver pizzas for a Domino’s location in Willowbrook, and she is seeking to represent a class of delivery drivers who currently work, or have worked, at two multi-location Domino’s franchisees in Illinois: Rolling in the Dough and JWG. According to claims in Young’s complaint, the combination of the delivery drivers’ required expenses for their vehicles, uniforms, and the untipped work they perform in store, all added up until Young and her fellow delivery drivers were allegedly being paid less than minimum wage. Continue reading

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In addition to the federal Fair Labor Standards Act (FLSA) and local labor laws that regulate things like overtime and the minimum hourly wage an employee can be paid, Illinois also has the Day and Temporary Services Act, which protects day laborers and temporary workers in Illinois who are even more vulnerable than full-time and part-time minimum wage employees. Day and temporary workers are more likely than other employees to become victims of minimum wage and overtime violations, and are less likely to be paid or to be paid in full, for all the hours they worked.

One of the biggest problems these workers face is employers who want to keep them “on call” for days they may or may not need to come in. Workers are required to keep this time open in case their employer needs them to come into work, but if the employer does not need them, then they don’t get paid for that day and were unable to work another job during that time.

Under the Illinois Day and Temporary Services Act, employers are required to pay their workers at least four hours’ worth of wages on the days that workers have to set aside but are not required to come into work.

Temporary laborers who are hired through staffing agencies are entitled to employment notices from their agencies telling them the days they’ll be working, what kind of work they’ll be doing, the wages they’ll be paid, and whether meals and/or transportation will be provided. They are also entitled to pay stubs that detail the number of hours they spent working within the pay period, the hourly wage they earned, the total amount they were paid during the pay period, and any deductions taken from their pay for things like taxes or equipment. Continue reading