New Jersey Supreme Court Applies Broad Definition of "Employee," Including Many Normally Classified as Independent Contractors

April 22, 2015

movers-24402_640.pngA key question in many wage and hour claims is whether the complainant is an "employee," and therefore protected by said laws, or an "independent contractor," who is not covered. The New Jersey Supreme Court, in response to a certified question from the Third Circuit Court of Appeals, applied a very broad definition of "employee" for the purposes of state wage and hour laws. Hargrove, et al v. Sleepy's, LLC ("Hargrove III"), Nos. A-70 Sept. Term 2012, 072742, slip op. (N.J., Jan. 14, 2015). It applied the definition used in state unemployment law, which is much more favorable to employees than state wage and hour laws have been.

The plaintiffs work as delivery drivers for the defendant, a mattress company. They contend that they are employees, while the defendant argues that they are independent contractors. They signed an "Independent Driver Agreement" (IDA) when they began working for the defendant, which they claim was "a ruse to avoid payment of employee benefits." Id. at 3. They filed suit in federal court in 2010, alleging that the defendant was wrongfully denying them employment benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

The U.S. district court granted summary judgment for the defendant, finding that the plaintiffs did not meet the definition of an "employee" under ERISA. Hargrove, et al v. Sleepy's, LLC ("Hargrove I"), No. 3:10-cv-01138, mem. and order (D.N.J., Mar. 29, 2012), citing Nationwide Mutual v. Darden, 503 U.S. 318 (1992). While the court acknowledged that the defendant had "extensive control of deliverer's activities," Hargrove I at 10, it noted other factors that led to its conclusion, including the IDAs and the facts that each plaintiff had set up their own business entities, kept their own business records, had relationships with the IRS as business entities, and purchased and maintained their own delivery trucks.

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Federal Race Discrimination Lawsuit Accused Cosmetics Company CEO of a Wide Range of Derogatory Statements

April 17, 2015

lipstick-259411_640.jpgA federal lawsuit filed by a former cosmetics company employee, which has since been settled and dismissed, raised claims of race, ethnicity, and national origin discrimination, retaliation, and other claims. Meyers v. Revlon, Inc., et al, No. 1:14-cv-10213, complaint (S.D.N.Y., Dec. 30, 2014). The plaintiff accused the chief executive officer (CEO) of numerous derogatory statements, and of retaliation for noting and reporting safety and regulatory concerns. The lawsuit asserted causes of action under federal, state, and city law, including New Jersey's whistleblower protection statute.

According to his complaint, the plaintiff worked in the cosmetics industry for 35 years, rising from an entry-level position to the defendant's Chief Science Officer. He took that position in 2010, and he stated that "his career progressed without impediment until November 2013." Id. at 1. The defendant acquired Colomer, a beauty care company based in Spain, in August 2013. In November 2013, it named Colomer's CEO as its new CEO and President.

The plaintiff claimed that he played a key role in integrating the two companies, which included reviewing Colomer's regulatory compliance. He reported concerns about Colomer's facility in Barcelona to the new CEO. He claimed that the CEO became angry and told him not to discuss regulatory or safety matters with him in order to maintain "plausible deniability." Id. at 15. From then on, the CEO allegedly harassed and belittled the plaintiff, often in front of colleagues.

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Lawsuit Claims Gender Identity Discrimination under Title VII

April 2, 2015

Gender-Symbol_Transgender_M2F_Lesbian.pngA transgender woman's sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on "gender identity or expression" N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.

The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its "full-line store" in Houston. Jamal, complaint at 3. She alleges that the defendant routinely "misgendered" her by referring to her with male pronouns and other indicators, and denying permission to use the women's restroom. The store manager allegedly requested that she "change her appearance to a more masculine one." Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.

The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as "he," and used the term "[sic]" when quoting portions of the plaintiff's complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.

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NLRB Issues Final Rule Simplifying and Modernizing Representation-Case Procedures,

March 26, 2015

ballot-32201_640.pngThe National Labor Relations Board (NLRB) issued a final rule in December 2014 addressing the process by which workers may vote on whether or not to form a union or seek representation by an existing union. 79 Fed. Reg. 74307 (Dec. 15, 2014). The agency, which is charged with enforcing the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., states that the new rule "remove[s] unnecessary barriers to the fair and expeditious resolution of representation questions." The rule appears to increase unions' leverage in disputes with businesses over questions of worker representation. Critics call it the "quickie election" rule, and several business organizations are already challenging it in court.

Employees have the right under the NLRA to organize or choose representatives for collective bargaining purposes, or to refrain from this sort of activity. 29 U.S.C. § 157. Employers are prohibited from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of [these] rights." Id. at § 158(a)(1). If workers and employers cannot reach an agreement regarding the terms of organizing or representation, the NLRB is authorized to resolve the dispute. Id. at § 159. The U.S. Supreme Court held that the NLRB has broad discretion in these types of disputes. 79 Fed. Reg. at 74308, citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946), et al.

The NLRA establishes a four-step process for representation disputes: (1) an employee, labor organization, or employer files a petition with the NLRB; (2) the NLRB, or an NLRB regional director, holds a hearing to determine if the petition presents a representation question; (3) an NLRB unit conducts a secret-ballot election; and (4) the NLRB certifies the election results. The statute only provides the basic steps, though, and the NLRB's experience has shown problems "which cannot be solved without changing current practices and rules." 79 Fed. Reg. at 74308.

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Court Rules for Whistleblower Who Made Internal Report of Alleged Financial Violations

March 19, 2015

Earth-illustration-blue.jpgA federal court ruled in favor of a woman who filed suit against her former employer under the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), finding that she had pleaded sufficient facts to allow the case to go forward. Bussing v. COR Clearing, LLC, 20 F.Supp.3d 719 (D. Neb. 2014). The decision is notable because the plaintiff only reported violations of federal money laundering statutes within the company, rather than reporting them to federal regulators. Federal courts have split on the question of whether Dodd-Frank protects whistleblowers who only report internally. The Fifth Circuit reached a contrary decision in Asadi v. G.E. Energy, 720 F.3d 620 (5th Cir. 2013). No New Jersey court has ruled on this issue, although Khazin v. TD Ameritrade Holding Corp., et al, No. 14-1689, slip op. (3rd Cir., Dec. 8, 2014), might be relevant.

Congress passed Dodd-Frank, and President Obama signed it into law in July 2010. The law is a broad response to the financial crisis of 2008, and it includes numerous changes to federal financial regulations. Section 922 of Dodd-Frank amends the Securities Exchange Act of 1934 to add new "incentives and protection" for whistleblowers who report violations of federal financial and securities laws. 15 U.S.C. § 78u-6. If a government agency is able to act on "original information" obtained from a whistleblower's personal knowledge, which it could not have obtained from another source, the whistleblower could be entitled to 10 to 30 percent of the amount recovered. This section also protects individuals who meet this definition of a whistleblower from retaliation by their employer.

The plaintiff in Bussing was hired by COR Securities Holdings, Inc., an investment management company, to assist with due diligence during its acquisition of Legent Clearing, LLC, a clearing services company. The Financial Industry Regulatory Authority (FINRA), a private organization that regulates its member companies, had investigated and sanctioned Legent several times in the previous two years. The plaintiff learned of this during her investigation, and she developed a "Change of Control Plan" to address Legent's "troubling regulatory history." Bussing, 20 F.Supp.3d at 723. She was then recruited by her supervisor at COR to serve as Legent's Executive Vice President.

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$2.3 Million Settlement Resolves Misclassification, Overtime Dispute Between Exotic Dancers and Clubs, Leaves Question of Whether They Were Employees or Independent Contractors Unanswered

March 5, 2015

JustShootMe-337.jpgThe plaintiffs in a putative collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., have settled their dispute with the defendants, which included allegations of misclassification and failure to pay overtime wages. A federal magistrate recommended approval of a settlement in which the defendants agreed to pay $2.3 million to the plaintiffs. Jones, et al v. JGC Dallas LLC, et al, No. 3:11-cv-02743, findings, conclusions, and recommendation (N.D. Tex., Nov, 12, 2014). The district court approved the settlement, with some adjustments, on December 24, 2014.

The initial plaintiffs in Jones worked for clubs owned and operated by the defendant throughout Texas and in Phoenix, Arizona. They added additional club owners in several amended complaints. They alleged that their primary job duties were to dance on stage and to perform individual dances for customers. They received no payment from the defendants, but instead had to pay a fee to the defendants for each shift. The defendants also allegedly required them to share the money they received from customers with other employees, such as managers and DJs. The defendants set the rates for all of the services expected of the plaintiffs.

The lawsuit was one of many brought by people, mostly women, who work or have worked as exotic dancers at clubs around the country, claiming that the clubs misclassified them as independent contractors instead of employees in violation of the FLSA. Employees are subject to the FLSA's protections regarding wages and hours of work, while independent contractors are not. Courts around the country have reached different conclusions regarding whether exotic dancers are independent contractors or employees, although the trend seems to be in favor of considering them employees.

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Updated LinkedIn Profile Leads to Claim for Alleged Breach of Non-Compete Agreement

February 27, 2015

runners-305624_640.pngThe social media network LinkedIn played a prominent role in a recent dispute over a non-compete agreement, demonstrating that employees' use of social media can affect not only their current employment and their future prospects for employment, but also their relationships with past employers. A federal court rejected an employer's motion for a temporary restraining order (TRO) and preliminary injunction (PI) against a former employee, which was based in part on a claim that the description of her new job on her LinkedIn profile indicated that she was in breach of her employment agreement. Nicklas Associates, Inc. v. Zimet, mem. op. (D. Md., Dec. 9, 2014). The employer did not establish one of the four elements required to obtain a TRO or PI, the court held, meaning that it was not rejecting the merits of the underlying breach of contract claim. The parties dismissed the lawsuit by stipulation, however, before the court reached the merits.

The plaintiff/employer operates a staffing company specializing in "interactive, creative, and marketing personnel." Id. at 1. The defendant/employee began working for the employer as a branch manager in Iselin, New Jersey in November 2011 and moved into an account manager position in December 2013. Her employment agreement included a non-compete clause with a duration of 12 months and a range of 50 miles, which applied to the business of "placing temporary workers and permanent hires in the fields of creative, marketing, communications, marketing and web." Id. at 3.

The employee resigned from her position in July 2014. The employer claimed that it learned about one month later that she was working for a direct competitor about 25 miles from the employer's location. It came to believe that this position violated the non-compete agreement because the employee updated her LinkedIn profile to describe her occupation as a "creative recruiter." Id. at 4. Two emails sent to the employee's old account also allegedly supported this view. The employer sent a cease and desist letter and then filed suit in December 2014. It alleged breach of contract against the employee and tortious interference with a contract against her new employer.

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Employer Settles Federal Lawsuit Alleging Unlawful Withholding of Employee Retirement Contributions

February 19, 2015

13856166954_b7d76371fe_z.jpgEmployees often rely on their employers for more than just a regular paycheck. While employers are not necessarily required to provide benefits for their employees, such as health insurance and retirement plans, those that do must follow certain requirements intended to protect employees' interests. The federal Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., for example, sets minimum standards for private employee pension plans. These include the establishment of a fiduciary relationship between the employer, which administers the plan, and the employees, who are its beneficiaries. The U.S. Department of Labor (DOL) recently settled a claim against a New York-based employer, in which the department alleged unlawful withholding of employee retirement contributions in violation of ERISA. Perez v. Herring, No. 1:15-cv-10034, consent judgment and order (D. Mass., Jan. 12, 2015).

According to the DOL's complaint, the defendant was the sole member and manager of a limited liability company (LLC) that operated a weight-loss business through a Jenny Craig franchise. The LLC, which was organized in Massachusetts, operated eight locations in New York state. It established a retirement savings plan for its employees in May 2012, with the LLC as the plan's sponsor and the defendant acting as the plan's named fiduciary and trustee. Funding for the plan came from employee salary deferrals, which the defendant remitted to participating employees' plan accounts. Under ERISA, amounts withheld from employees' paychecks automatically became assets of the retirement plan.

The defendant, according to the DOL, failed to remit employee contributions to the plan for five pay periods in 2012 and 2013, in the total amount of $8,646.00. This allegedly breached his fiduciary duty to participating employees under ERISA. In May 2014, the defendant individually filed for Chapter 7 bankruptcy. The DOL filed an adversary proceeding in bankruptcy court, seeking a judgment finding any debts resulting from the defendant's ERISA violations to be non-dischargeable because of "defalcation while acting in a fiduciary capacity." 11 U.S.C. § 523(a)(4). The defendant and the DOL filed a stipulation with the bankruptcy court in November 2014, in which the defendant stipulated that his actions constituted defalcation under the Bankruptcy Code. The DOL filed its ERISA civil suit in January 2015.

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Federal and State Law Prohibits Age Discrimination in Employment, Even in Traditionally "Young" Industries.

February 13, 2015

nao-at-work-63576bb6-da89-4158-bacf-de83b38abac0.jpgIn 2007, Facebook founder and CEO Mark Zuckerberg spoke to a group of aspiring entrepreneurs at a startup workshop at Stanford University about "the importance of being young and technical." Zuckerberg, who was 22 years old at the time, went on to say that "young people are just smarter." He cited attributes like "simpler lives," which would allow younger employees to devote more time to their jobs. Age discrimination has long been a serious issue in the technology industry. The question of whether maintaining a young, energetic workforce--at the cost of losing older, more experienced employees--is ultimately to a company's benefit is something that tech industry analysts can discuss. Refusing to hire someone solely on the basis of his or her age is often against both state and federal law. This problem is not limited to the tech industry but occurs in many industries all over the country. As the tech industry expands into places like New Jersey, however, the way in which some tech companies proudly tout their "youth" bears scrutiny.

Under the federal Age Discrimination in Employment Act (ADEA), employers may not discriminate against employees in hiring, firing, and other terms and conditions of employment based on the person's age. 29 U.S.C. § 623(a)(1). This includes limiting job openings to a particular age group, either expressly or by using terms like "new or recent graduates preferred." The ADEA, however, only applies to workers who are at least 40 years old. 29 U.S.C. § 631. It therefore might not prohibit age discrimination based on a determination that a person is too young. New Jersey's Law Against Discrimination (LAD) also prohibits discrimination on the basis of age. N.J. Rev. Stat. § 10:5-12(a).

The tech industry, in California's Silicon Valley and elsewhere, appears to value youth as much as, if not more than, the movie industry in Hollywood or the fashion industry in New York City. This has manifested itself in a variety of ways, from a general lack of "graybeards" to awkward work environments for the older tech workers who do manage to find jobs. It also includes multiple instances of overt age discrimination, such as the sort of job listings mentioned earlier that discourage older job seekers, either by directly stating an age limit or using phrases like "Class of 2007 or 2008 preferred." A job advertisement using that phrase led to a settlement, which did not include any monetary penalties, between Facebook and California employment regulators in 2013.

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Researchers Find Evidence of Employment Discrimination When Job Applicants Refer to Religious Affiliations

February 5, 2015

Coat_of_arms_of_Wallonia_(Belgium).svg.pngA group of sociologists has recently published two studies on the effect of religious identifiers on hiring decisions. One study focused on employers in New England, and the other on employers in the American South. Both studies found that résumés and job applications referencing a specific religious affiliation are less likely to receive follow-up action from employers than those that do not mention religion at all. This highlights a difficult aspect of employment anti-discrimination law, which requires proof that an adverse employment action, like refusal to hire, was based on a protected class, like religion. The discrimination uncovered by these studies may not be intentional, and in fact the individuals making these decisions may not even be aware of the disparate treatment, but it still violates state and federal anti-discrimination law.

The researchers sent about 3,000 résumés to employers from "fictitious job applicants" who had recently graduated from college. They randomly modified the résumés "to indicate affiliation in one of seven religious groups or a control group," typically by mentioning membership in a campus religious organization. The seven religious identifiers were atheist, Catholic, evangelical Christian, Jewish, pagan, Muslim, and a fictitious religious identity called "Wallonian." Each employer received four résumés with comparable qualifications, which only differed in religious affiliation and minor details. The researchers set up email accounts and telephone numbers for the fictitious job applicants in order to track the responses from the employers.

In the New England study, resumes that mentioned religion received about 25 percent fewer responses from employers. Those that indicated affiliation with Muslim organizations had the lowest response rate, at one-third less than the control group. Applicants identified as atheist, Catholic, or pagan also received a significantly lower response rate. The Southern study had similar results, with evangelical Christians and Wallonians also receiving significantly fewer responses. Jewish applicants were the only ones who showed no significant disadvantage compared to the control group.

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Whistleblower Who Exposed Alleged Visa Fraud Files Lawsuit Claiming Retaliation by Employer

January 30, 2015

Indian_Passport.jpgThe federal government settled a massive visa and immigration fraud claim against an Indian company in 2013, after a lengthy investigation. United States v. Infosys Limited, No. 4:13-cv-00634, settlement agreement (E.D. Tex., Oct. 30, 2013). The investigation began when a U.S.-based employee reported evidence of fraud involving H-1B guest worker visas and B-1 business visas to federal authorities. The employee alleges that the company retaliated against him for reporting his suspicions, including demotion, harassment, hostile work environment, termination, and refusal to rehire. His lawsuit, initially filed in New Jersey, claims violations of the whistleblower protection provisions of the False Claims Act (FCA) and the Sarbanes-Oxley Act of 2002. Palmer v. Infosys Limited, No. 3:14-cv-06122, complaint (D.N.J., Oct. 2, 2014), transferred to No. 6:14-cv-00905 (E.D. Tex., Dec. 8, 2014).

The defendant is a technology and consulting business based in Bangalore, India, which provides services to numerous U.S. tech companies. It petitions for temporary work visas on behalf of workers in India. Workers in "specialty occupations" may come to the U.S. on an H-1B visa. To qualify, a worker must have a bachelor's degree or higher, and he or she must have a job offer from a U.S. employer for a position that requires a degree or certain specialized skills. Federal law limits the number of new H-1B visas to 65,000 per year, so the field is competitive.

The plaintiff attended meetings in Bangalore in March 2010 in which managers allegedly "discussed the need to and ways to 'creatively' get around" H-1B program restrictions. Palmer, complaint at 11. He alleges that he was instructed to prepare "welcome letters" for people coming to the U.S. on B-1 visas for short-term business purposes, but that these people were actually coming to the U.S. for jobs requiring an H-1B visa. The plaintiff filed an internal whistleblower complaint with the defendant in October 2010, and he eventually reported the matter to multiple federal agencies and members of Congress.

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New Jersey Federal Court Allows Race, National Origin Discrimination Lawsuit to Proceed

January 27, 2015

AtlanticCityAirport.pngA federal judge in New Jersey recently denied the defendants' motion to dismiss a lawsuit alleging race and national origin discrimination. A former employee, who worked for nearly two decades as a contract employee for a federal agency, is claiming that the agency wrongfully failed to hire him for a permanent position. Suri v. Fox, et al., No. 1:13-cv-05036, 2nd am. complaint (D.N.J., Apr. 16, 2014). After the defendants moved to dismiss the lawsuit, the court ruled that the plaintiff had made a prima facie case for race and national origin discrimination. This means that the case may proceed, and that the burden shifts to the defendants to show a non-discriminatory basis for their actions.

The plaintiff, who is originally from India, became a U.S. citizen in 1992. He has bachelor's and master's degrees in electrical engineering and a master's degree in environmental engineering. He began working for the Federal Aviation Administration (FAA) as a summer intern in 1995. During the internship, he states that he asked about a permanent position but was told that a hiring freeze prevented the FAA from offering him a permanent job. He accepted a contract position with H-Tec Systems, an FAA contractor, when his internship ended in September 1995. He continued working on site at the FAA's William J. Hughes Technical Center in Atlantic City, New Jersey for 13 years. In 2008, he took a job with another contractor, EIT, that kept him in the same place.

According to his complaint, the plaintiff worked with FAA employees on a daily basis, had an office cubicle at the FAA facility, and used office equipment, supplies, and furniture provided by the FAA. The details of his employment, including work assignments, discipline, and leave, were under the control of FAA supervisors. He claims that he continued to ask about a permanent position and was still told about a hiring freeze. The supervisor who cited the hiring freeze, however, allegedly hired several Caucasian employees with lesser qualifications than the plaintiff to permanent positions during this time period. At various other times, the plaintiff claims that employees with lesser qualifications and less seniority than him, all Caucasians, were placed in positions over him.

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Do Employment Laws Protect Workers from Getting Fired and Other Adverse Actions for Public Statements on Social Media?

January 23, 2015

twitter-117595_640.pngSocial media has given a platform to nearly anyone with internet access, and many people use that opportunity to share their views with their friends and followers, as well as the general public. Many statements could be considered objectively offensive by modern standards regarding race, gender, and other issues, while others might be more subjective. Some people have faced adverse actions from their employers, including firing, because of statements on politics and other issues made on social media, and other acts outside work. Do state or federal employment laws protect workers engaging in these types of activities? The answer is complicated. Federal law only protects workers in certain specific circumstances, and few state laws address political affiliations or other activities as they pertain to employment.

Two recent incidents demonstrate the potential impact of careless or offensive statements on social media. In December 2013, a public relations director for an internet company sent a tweet just before boarding a plane bound for South Africa. The tweet, a joke referencing the issue of AIDS in Africa, caused such an immediate uproar that she was out of a job before her flight reached its destination. More recently, the communications director for a Republican member of Congress resigned her position after writing a post on Facebook criticizing President Obama's daughters in terms generally considered offensive.

Some people have chosen to respond to online statements they find egregiously offensive by notifying employers--at least one blog, Racists Getting Fired, chronicles efforts to report racially offensive statements. Most of these types of responses have involved people making statements widely considered to be racist, sexist, or otherwise bigoted or offensive. One concern regarding this practice, according to activist and writer Tressie McMillan Cottom, is that it "sets a terrible precedent of witch-hunts for good people who make a few mistakes." The door can swing both ways, too, as evidenced by reports that a police officer in St. Louis contacted an employer, in an official capacity, regarding an employee's tweets that criticized the police department.

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Federal Court Allows Police Whistleblower's Lawsuit Against City Officials to Proceed

December 30, 2014

Clocking_device.jpgA federal judge denied a motion to dismiss a police officer's lawsuit against a Pennsylvania borough and multiple borough officials for alleged retaliation and civil rights violations. The plaintiff alleged retaliation for reporting fraud by the former police chief to state authorities. Beatty v. Ohioville Borough, et al, No. 2:14-cv-00067, 2nd am. complaint (W.D. Pa., Jul. 25, 2014). The police chief eventually pled guilty to theft and forgery for submitting fraudulent timesheets. Several defendants moved to dismiss the suit, arguing in part that they could not be sued in their official capacities. The court disagreed, finding that Congress intended to allow lawsuits to hold public officials individually liable for civil rights violations under 42 U.S.C. § 1983.

The plaintiff is a part-time police officer in Ohioville Borough, Pennsylvania. He reportedly found evidence that the police chief was defrauding taxpayers and took this to the Pennsylvania State Police in August 2012. A criminal investigation led to allegations that the chief submitted fraudulent timesheets over a three-year period, costing taxpayers over $45,000. He was charged with 63 felony counts of forgery and one felony count of theft in February 2013. The Ohioville Borough Council voted unanimously in January 2014 to allow him to retire instead of firing him. He pled guilty to two misdemeanor counts of theft and forgery in September 2014.

While the police chief's saga was unfolding, the plaintiff claims that he faced retaliation by borough officials, including the mayor, the assistant chief of police, the solicitor, and the members of the Borough Council. He claims that he was denied a promotion in August 2012, shortly after he went to the state police, and that he was suspended in October without good cause. The mayor allegedly "encouraged private citizens to file false and fraudulent complaints" against him during this time period. Beatty, complaint at 7. The plaintiff was suspended again in January 2013, allegedly without any explanation or opportunity to respond. He was placed back on the schedule again in March but suspended indefinitely on March 17 for reasons he claims were pretextual.

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Supreme Court Will Consider Case Alleging Religious Discrimination in Employer's Dress Code

December 23, 2014

Abercrombie_&_Fitch_Hong_Hong_store_2.jpgThe U.S. Supreme Court will hear the appeal of a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The complainant alleged that the company, a retail clothing chain, refused to hire her because she wears a hijab, the headscarf commonly worn by many Muslim women. The company claimed that the hijab violated its dress code. It argued in court that the complainant never requested a religious accommodation during the job application process, although she wore a hijab to her in-person interview. An unpublished 2013 New Jersey decision addresses a similar religious discrimination claim by a Sikh man.

Abercrombie operates a nationwide chain of retail clothing stores that market a particular style, supported by a comprehensive, and often controversial, "Look Policy" for its employees. The complainant applied for a job at an Abercrombie Kids store in Tulsa, Oklahoma in 2008, when she was 17 years old. She wore a hijab to her interview, where an assistant manager reportedly gave her a good enough score on her style to recommend her for employment. A supervisor allegedly rejected her because the "Look Policy" does not allow employees to wear hats or other head coverings. The supervisor has since claimed to have had no knowledge that the headscarf--which the complainant wore to a job interview with an employer known for its expansive dress code--was worn for religious reasons.

The EEOC investigated her claims of religious discrimination and filed suit in 2009. Abercrombie settled two similar EEOC lawsuits in 2013. One alleged refusal to hire, and the other involved a woman who claimed that the company fired her after a district manager visited the store and disapproved of her hijab. The company paid a total of $71,000 to the two women and agreed to allow female employees to wear hijabs. The Oklahoma case was already pending when the settlement occurred.

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