Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

The 11th Circuit Court of Appeals recently released its decision in the case of Myers v. TooJay's Management Corporation.  Myers filed for bankruptcy in North Carolina in January, 2008.  The next month, he moved to Florida "looking for a fresh start and found work as a shift supervisor at a Starbucks coffeehouse."  In May, 2008, his debts were discharged by the Bankruptcy Court.  Several months later, Myers interviewed with the regional manager of TooJay's, seeking a managerial position at a local TooJay's restaurant.  He had a successful interview, and was offered a 2 day on the job evaluation, wherein he was paid $100/day.  Myers testified that the on the job evaluation "was just so that we could both get a feel for the restaurant, that I would make sure I was comfortable doing it there, that [the regional manager] was comfortable with me and the other restaurant managers were comfortable with me."  Following the on the job evaluation, TooJay's conducted a consumer background check, determined that he had filed bankruptcy, and withdrew it's job offer since the company had a policy of not hiring individuals who filed bankruptcy.  After a jury trial, the jury determined that Myers was never employed at TooJay's, and found in favor of TooJay's.

On appeal, the 11th Circuit examined 2 provisions of the Bankruptcy Act:

Section 525(a) which reads in pertinent part:  "A governmental unit may not...deny employment to, terminate the employment of, or discriminate with respect to employment against a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act..." 

Section 525(b) provides in pertinent part:  "No private employer may terminate the employment or, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act..."

Since the language of the Bankruptcy Act is clear and unambiguous that the denial of employment based on bankruptcy applies only to a governmental entity, and TooJay's was a private entity,  the Court found, consistent with the 3rd and 5th Circuits, that private employers are not prohibited from denying employment to applicants if they filed for bankruptcy.

Practice pointer.  Private employers may not discriminate against any current employee if he/she files bankruptcy.  Doing so may result in liability under Section 525(b). 

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The Department of Labor and Apple have teamed up with a new app for the I-Phone to keep track of hours and pay.  According to the Itunes website, the app is described as follows:  "This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek. "  There is a link on the Itunes app page to the DOL Wage and Hour Division webpage.  The app is free. 

Practice pointer.  Of course, it is too early to tell if this will result in an increase, in an already busy area of the law, in claims filed for overtime.  My initial feeling is that the app is only as good as the user:  if accurate time is entered, the app will be useful.  Unfortunately, oftentimes, information kept by employees is not always accurate.  This app will make it more difficult to dispute the hours employees claim they work.  Now is a good time for employers to review their time keeping devices to make sure they are used by everyone, and review their policies and procedures about clocking in and clocking out. 
 

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Meridith Levinson published an article in PCWORLD on April 30 entitled "How to File an EEOC Employment Discrimination Charge:  Many tech professionals over 40 have tales of how age discrimination is rampant in the field."  The article discusses the belief in the IT world that once you are over 40, age discrimination is common.  She notes that many people dye their hair, male and female alike, leave dates of graduation off resumes and work experience that may "date them" to be over 40.  The article sets forth EEOC statistics from 2010 showing that the EEOC processed nearly 100,000 discrimination and retaliation charges, filed 271 suits and resolved 315 suits and won $85.1 million on behalf of "victims of discrimination".  Remedies under the Age Discrimination in Employment Act include reinstatement to their position as if there had been no discrimination, including back pay and benefits, double damages if there was a willful violation and attorney's fees.  Ms. Levinson goes on to detail how to file a charge, emphasizing how easy it is to do and that a charging party does not need an attorney to file a charge.  She points out that there is an intake form consisting of 4 pages, which can be done at the EEOC office or printed from the EEOC's website. Once the form is completed, it is provided to the EEOC, either in person or by mail.  The article goes on to talk about what happens next: the employer is notified by the EEOC and is asked to respond, mediation may take place, and if unsuccessful, the EEOC will investigate the charge.  If the EEOC determines that there may be a violation, they will either issue a right to sue letter, or in a small percentage of cases, file a lawsuit in the EEOC's name on behalf of the aggrieved person.

Practice pointer.  This article is an excellent description of how the EEOC process is started, and how the charge is handled by the EEOC.  It is interesting to me that this article is directed at a very focused group:  IT workers over 40.  I would not be surprised to see an uptick in ADEA claims being filed in this industry based on this article. 

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