The restaurant company that owns Seasons 52, Olive Garden, LongHorn Steakhouse, the Capital Grille and other well-known brands, agreed to pay almost $3 million to settle a lawsuit brought by job applicants who claimed they were denied employment because of their age, the EEOC said Wednesday.

The Miami Herald reports” “A complaint filed in Miami federal court in 2015 said it was ‘standard operating procedure’ for Darden [Restaurants] to disproportionately deny jobs to Seasons 52 applicants aged 40 and older, Reuters reported. That’s a violation of the federal Age Discrimination in Employment Act.”

Reporter Crystal Hill writes that the EEOC said applicants who were turned away were told they were “too experienced,” as well as, “we are not looking for old white guys.”

Read the Miami Herald article.

The Antitrust Division of the U.S. Department of Justice recently announced a settlement of criminal charges against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. for having maintained agreements not to compete for each other’s employees, according to Locke Lord.

Authors Stephen P. Murphy and Joseph A. Farside Jr. write that one executive went so far as to state in an email that no-soliciting was a “prudent cause for both companies” and that the companies would “compete in the market.”

In announcing the settlement, an assistant AG noted that the criminal complaint was part of a broader Antitrust Division investigation into agreements not to compete for employees, typically known as no-solicit or no-poach agreements.

Read the article.

A New York federal jury awarded 10 former and current employees of a Long Island company $5.1 million because the company was found to have forced them to practice certain religious activities, reports The Washington Post.

Post contributor Gene Marks writes that the EEOC suit alleged that United Health Programs of America employees were being forced to follow an internal “Harnessing Happiness” system started by an aunt of the owners in 2007 that required them to engage in activities such as prayers, religious workshops and “spiritual cleansing rituals.”

“Nine employees said the ‘religiously infused atmosphere’ created a hostile work environment for them, and the jury agreed,” according to Marks. “The same jury also found that another employee was fired for opposing the practices. A judge had previously ruled that the Harnessing Happiness system — which was also known as ‘Onionhead’ — constituted a religion.”

Read the Post article.

Seyfarth Shaw has some advice for franchisor when considering their legal strategy in “no-hire” agreement class actions: franchisor employers should assess whether the joint employer risk is worth accepting in order to pursue the single-enterprise defense.”

In its Workplace Class Action Blog, the firm discusses class actions claiming that provisions contained in franchise agreements prohibiting the hiring of employees of other intrabrand franchisees without the consent of their employer violate the antitrust laws.

The authors discuss the single-enterprise defense, potential joint employer liability, and other defenses.

Read the article.

Employment and labor law practice Littler and ComplianceHR, a joint venture of Littler and Neota Logic, announced the launch of PAID Forward.

In a release, the firm said PAID Forward helps employers navigate a new self-reporting program from the Department of Labor (DOL) that allows them to proactively address potential wage and hour underpayments under the Fair Labor Standards Act (FLSA) without incurring penalties or litigation threats. The Payroll Audit Independent Determination (PAID) program, which the DOL announced on March 6, encourages employers to audit their compensation practices, report any potential violations to the DOL’s Wage and Hour Division and remedy errors and compensate employees accordingly.

The release continues:

“The DOL’s PAID program provides employers with a unique opportunity to self-report potential minimum wage, overtime or other violations through a formal mechanism and proactively resolve any issues, while avoiding various litigation-related expenses,” said Tammy McCutchen, a principal in Littler’s Washington, D.C., office, Vice President of ComplianceHR and a former administrator of the DOL’s Wage and Hour Division. “PAID Forward is a valuable resource for employers that combines Littler’s vast knowledge of FLSA audits and wage and hour compliance with ComplianceHR’s artificial intelligence platform for delivering clear and actionable information.”

“We are rolling out a new suite of expert system applications to identify potential off-the-clock work and compensation inappropriately excluded from the overtime calculations,” said Lori Brown, Chief Executive Officer of ComplianceHR. “These new apps, together with our award-winning Navigator OT which analyzes the risk of overtime misclassifications, will provide our users with a comprehensive suite of tools for assessing FLSA compliance – the first step to participate in the DOL’s PAID program.”

The PAID Forward solution begins with a tool to determine if a company is eligible to participate in PAID and then uses the ComplianceHR application to identify potential FLSA risk. Finally, a team of experienced Littler attorneys will guide the company through identifying appropriate remedial actions going forward, calculating back wages, preparing the necessary submissions to the DOL and negotiating with the DOL to ensure practices being corrected are not subject to future litigation.

“Many employers are rightfully excited about this new program, but as with any major move by the federal government on employment law, there are a lot of questions,” said Lee Schreter, Co-Chair of Littler’s Wage and Hour Practice Group. “The PAID Forward service helps employers streamline their auditing and reporting, while providing counsel from attorneys to most effectively work with the DOL and ensure pay practices are compliant moving forward.”

The DOL’s PAID program opened April 3 and was initially designed as a six-month pilot program, after which the DOL will evaluate the effectiveness, participation rate and results to determine whether to make it permanent.

Meritas will present a webinar titled “When #MeToo Means #YouToo: What to do when you’re in the sexual harassment hot seat.”

The event will be Wednesday, May 2, 2018, at 1 p.m. CDT.

“The #MeToo movement has many employers uncertain about the best ways to protect themselves from sexual harassment complaints and the right way to respond after a complaint has been made,” the firm says on its website. “This seminar will explore how our definitions of sexual harassment have evolved in the age of #MeToo and the misconceptions that have formed around this issue.”

“Participants will come away with actionable advice they can put to use to avoid the damage that such claims can create, not just in terms of liability but also in workplace culture, employee attraction and retention.”

Register for the webinar.

A recent article published by Goodwin Procter describes a Department of Justice challenge to an agreement between two of the largest rail equipment suppliers in the world that prohibited them from competing to hire each other’s employees, often referred to as “no poach” or “no hire” agreements.

“The negotiated settlement requires the Defendants to cease participation in these agreements and imposes a slew of onerous compliance obligations to assure no conduct of this sort occurs in the future,” according to the article. “This is a notable harbinger of the DOJ’s future enforcement intentions. Companies with any such agreements with competitors – be they written or informal – should consult with counsel immediately to assess their potential exposure. Agreements that are reasonably necessary to achieve a legitimate business transaction or collaboration between or among companies remain lawful.”

Read the article.

Agreements among companies to not hire each other’s workers are more risky than ever, warns Pepper Hamilton LLP in a post on its website.

“The DOJ’s Assistant Attorney General for the Antitrust Division, Makan Delrahim, stated on January 19 that the division has criminal cases targeting these agreements in the works,” the post says. “Meanwhile, lawsuits challenging no-poach agreements in technology, entertainment, health care and other industries have settled, sometimes for hundreds of millions of dollars. The DOJ announced its latest settlement, a civil settlement with two rail equipment suppliers, on April 3, underscoring that it did not bring criminal charges only because the suppliers ended their agreements before the FTC and DOJ issued guidance on ‘no-poach’ agreements in October 2016.”

The article concludes with some actions that firms should take to identify and limit their exposure.

Read the article.

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Sinclair Broadcast Group, a company that owns local news stations across the country, is itself in the news for requiring its newscasters to read a script about “one-sided news stories plaguing our country.”

The Conversation reports that some Sinclair employees have said that their employment contracts made it prohibitively expensive to walk away.

Elizabeth C. Tippett, associate professor of law at the University of Oregon and author of the article, offers her take on the issue: “A Los Angeles Times journalist posted an excerpt of a contract that he claims to have received from a Sinclair employee. After reviewing it, I agree with other attorneys who noted that the legality of the provision depends on whether the fine is similar to the costs Sinclair would incur if the employee leaves prematurely.”

Read the article.

Bloomberg Tax will present a live event designed to help business owners, tax, finance directors, in-house counsel, bankers and investment professionals including PE & hedge fund managers to learn how employee stock ownership plans (ESOPs) can provide more than just an exit strategy. They may be an opportunity for a growing business and its employees, the company says.

The event will be Thursday, May 3, 2018, 2:30-6 p.m., at Bloomberg L.P., 120 Park Avenue, New York 10165.

“New Era of Material Wealth Creation With ESOPs” will look at all the benefits associated with ESOPs, including top performer retention, growing capital, and future planning.

Presenters will move past theory into the practical implementation of an ESOP. Through a case study, thought leaders will explore all of the stages of the process, including crafting the right design, securing employee buy-in, and more, Bloomberg says on its website.

Register for the event.

Daniel Schwartz, writing for Shipman & Goodwin’s employment law blog, provides a handy list of typical provisions in a separation agreement between an employer and an employee.

He prefaces the list with a caveat: His description of a “typical” agreement does not mean that these provisions are in every agreement or even that these provisions ought to be in some agreements. Each separation or settlement has differing facts that may make certain provisions more important than others.

Some of provisions on the list include nondisparagement of one or more of the parties, return of property, and benefits upon separation of employment.

Read the article.

Image by Mike Mozart

The Minneapolis  Star Tribune is reporting that Target Corp. has agreed to pay $3.7 million to settle a lawsuit over concerns that the way it uses criminal background checks as part of the hiring process has disproportionately hurt black and Latino applicants.

Reporter Kavita Kumar quotes Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund: “Target’s background check policy was out of step with best practices and harmful to many qualified applicants who deserved a fair shot at a good job. Criminal background information can be a legitimate tool for screening job applicants, but only when appropriately linked to relevant questions such as how long ago the offense occurred and whether it was a nonviolent or misdemeanor offense.”

As part of the settlement of the class-action complaint, independent consultants will recommend changes to Target’s current screening guidelines.

Read the Star Tribune article.

Employers large and small are committed to taking action to pursue expanded diversity and inclusion in their workforces through the use of a contract provision known as an “inclusion rider,” points out Don Lawless in a post in Barnes & Thornburg’s Hot Topics in Employment Law blog.

“Consideration of gender, race, or national origin in pursuit of diversity is a legal two-way street,” he warns. “If goals are applied like quotas, it creates the possibility of reverse discrimination claims by qualified and interested job candidates who are not considered because they will not help meet the established metrics.”

The article states that sophisticated employers have used established goals as a tool toward implementing equal employment opportunity objectives, steering clear of applying goals like quotas.

Read the article.

The Trump administration has nominated Sharon Fast Gustafson to fill the vacant position of general counsel of the Equal Employment Opportunity Commission.

Above the Law reports that Gustafson spent four years at Jones Day before becoming a solo practitioner in 1995.

The GC’s position at the EEOC has been vacant since December of 2016.

“The top litigator position has broad discretion in deciding what Title VII cases to pursue, and, as such, will take the lead in determining the Trump administration’s stance on such hot button issues as sexual harassment and the gender pay gap,” writes Above the Law editor Kathryn Rubino.

Read the Above the Law article.

Image by Annette Bernhardt

Bloomberg is reporting that the National Labor Relations Board is ignoring its own guidelines and rushing to settle a major workplace action involving McDonald’s Corp., lawyers for employees involved in the litigation alleged.

Reporter Josh Eidelson writes that, if the workers win at trial, the case could have a profound effect on how major corporations are held liable for workplace wrongdoing.

A trial on the matter was set to resume this week.

“Faced with a potential landmark decision in favor of franchise employees, NLRB lawyers have secured a deal with McDonald’s Corp. and are now racing to settle employee claims by Monday, attorneys for the workers contend,” Eidelson writes. “In doing so, the lawyers claim NLRB officials are wrongfully circumventing them and going straight to the workers with take-it-or-leave-it offers.”

Read the Bloomberg article.

Companies are increasingly tapping into new technology designed to keep a close eye on employees. This monitoring goes beyond traditional security cameras to include portable devices worn by workers, reports the Chicago Tribune.

Reporter Robert Reed writes that some employers are getting really high-tech with following their workers, such as using time clocks that can an employee’s fingerprint, retina or iris.

“Some workers are ticked off about it and fighting back. Up to 30 class-action lawsuits were filed by late 2017 accusing companies of violating the Illinois Biometric Information Privacy Act, which governs how such sensitive information is collected and used,” according to Reed.

Reed also raises the possibility that employers could even provide Fitbits or another portable health monitor as part of a corporate wellness program. “Can the personal data gleaned be used to alter, or deny, access to employer-provided insurance plans?,” he asks.

Read the Tribune article.

Businesses are increasingly using biometric data (i.e., measurements of a person’s physical being) for a variety of identification purposes, such as to provide security for the financial transactions of their customers and for the tracking of work hours of their employees, points out the Fisher Phillips Employment Privacy Blog.

Partner Jeffrey Dretler discusses the privacy concerns for employees and the compliance issues for employers related to collection of biometric data.

He suggests that employers should establish safe practices and be on the lookout for new developments. And he concludes with five suggested steps employers should take to be in compliance.

Read the article.

A U.S. district judge in California concluded that Morgan Lewis “plainly violated” California attorney professional conduct rules by representing “both sides of the case” in a hotel workers’ class action suit, Bloomberg Law reports.

Sheraton workers in San Francisco won class action status for their claim that their employer created a culture that encouraged staff to work through breaks without pay.

Reporter Jon Steingart writes that Judge William Alsup criticized the way lawyers from Morgan, Lewis & Bockius LLP obtained statements from three former employees that were used to argue against certification of the class. The same lawyers also represented the former workers in depositions conducted later.

A Morgan Lewis lawyer responded to a show cause order with an apology and a pledge that the firm wouldn’t repeat the conduct in any court.

Read the Bloomberg Law article.

Affirming a jury verdict, the U.S. Court of Appeals for the Sixth Circuit found that ten weeks of telecommuting was a reasonable accommodation for a pregnant lawyer put on bed rest, reports Manatt Phelps & Phillips LLP.

The Manatt article explains:

Due to complications from pregnancy, in-house counsel Andrea Mosby-Meachem was put on bed rest. Pursuant to the Americans with Disabilities Act (ADA), she requested to work from home during that period. Memphis Light, Gas & Water denied the request, taking the position that in-person attendance was an essential function of her job. Mosby-Meachem sued, and a jury awarded her $92,000 in compensatory damages on her claim of disability discrimination. The employer appealed, but the federal appellate panel upheld the verdict. The plaintiff presented sufficient evidence for a reasonable jury to conclude that in-person attendance was not an essential function of her job for the ten-week period she requested to work from home, the court said.

Read the article.

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An employee misclassification lawsuit can be difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial, points out a post in the Labor Days blog for Kelley Drye.

Special counsel Michael D. Yim offers a suggestion: one simple sentence in employment contracts, handbooks and policies for salaried employees that would likely reduce exposure by approximately two-thirds in FLSA cases.

He presents the wording of the sentence and then illustrates the  financial impact and disparity of the two calculation methods — first without the “magic words” in the agreement and then with the “magic words.”

Read the article.