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Archives for September 2017

Young Workforce Subject To Pervasive Sexual Harassment At Chipotle

Jon Allison

Jon Allison’s Monday Blog

A lawsuit filed last week alleges a female manager at a Chipotle Restaurant in San Jose, California sexually harassed her employees and retaliated against a young male employee who complained about the harassment.  The manager regularly discussed her own sex life and required her subordinates to tell her of theirs.  She posted a “sex scoreboard” on a daily basis recording the daily sex lives of her subordinates.  She slapped, groped and grabbed at least one young male employee.  She also requested sex with him, asked to watch him have sex with his girlfriend and asked to engage in a “threesome.”  This employee complained to upper management, but then he suffered retaliation.  The manager told other employees not to speak to him and locked him in a freezer.  Ultimately the young male employee resigned.  This was his first job.  The Equal Employment Opportunity Commission filed suit on his behalf.  Companies with a lot of younger workers and first time job holders should be particularly vigilant in making sure the workplace is free from sexual harassment and other forms of harassment as these workers are likely to be more vulnerable than those who have established themselves in the workforce and have more familiarity with appropriate workplace behavior as well as workplace policies.

SJ Chipotle Worker Complains of Sexual Harassment – NBC Bay Area

EEOC sues Chipotle, alleging sexual harassment by a female …

Chipotle Mexican Grill Sued by EEOC For Sexual Harassment …

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Wal-Mart Gets Off The Hook Due To Punitive Damages Caps

Jon Allison

Jon Allison’s Monday Blog

Last Spring, a jury awarded a former Wal-Mart manager $5.5 million after finding that he had been retaliated against and fired after complaining about discrimination.  The case was in the U.S. District Court for the District of Connecticut.  It was the first of three cases to go to trial filed by three African-American former managers.  The jury found that, after a number of managers complained about race discrimination, Wal-Mart engaged in a phony restructuring and eliminated the positions of the managers who complained.  Shortly after the positions were allegedly eliminated, similar positions reappeared.  The managers who had complained and been fired were prevented from interviewing for these positions and they were filled by non-African-Americans.  The jury determined there had been widespread retaliation and wanted to discourage Wal-Mart from engaging in similar conduct in the future.  Of the $5.5 million awarded by the jury, the vast majority ($5 million) was punitive damages.  Punitive damages are designed to punish an employer and deter future wrongful conduct.  Often the economic losses of a particular plaintiff don’t amount to a lot of money, particularly for a large corporation.  A couple of weeks ago, a federal judge reduced the punitive damages award from $5 million to 300,000 citing caps on damages under the statute.  These caps ought to be revisited.  Most people don’t ever challenge wrongful conduct by an employer.  Fewer ever retain an attorney and file suit.  Fewer still go through all the steps necessary to get to trial.  It can take many years to get there.  Once there, if a jury finds wrongful conduct on the part of a large company and wants to send a message to it to stop, it should not be prevented from doing so.  If a company is not forced to write a big check in the few instances where wrongful conduct is challenged all the way to a verdict by a jury, there is little incentive for it to change its ways.

Wal-Mart Hit With $5.5M Verdict for Retaliation | Connecticut Law …

Wal-Mart Worker Gets $5.5M Verdict In Retaliation Suit – Law360

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A TRAVESTY OF JUSTICE

Brian Gillan

Thanks to the Ohio Supreme Court and the Hamilton County Court of Appeals, Workers in Hamilton County Can Now Be Fired with Impunity If They Report Any of Several Illegal Activities Engaged in by Their Employer.

Thanks to a recent decision by the Ohio Supreme Court, workers in Hamilton County who witness their employer engaging in insurance fraud, immigration law infractions, the use of underage workers, payday lending law violations, or violations of the federal statute protecting the confidentiality of patient medical records, among other things, may now be fired by their employers without any legal recourse.

The decision was issued in the case McGowan v. Medpace, Case No. 2015-1756, and here are the facts. Dr. Mary McGowan is a nationally recognized physician and researcher who was hired into an executive position at Medpace, a billion-dollar local healthcare company. Shortly after she was hired, she became aware of fraudulent prescription writing practices and patient privacy and confidentiality violations. These concerned her so greatly that she held a meeting with her staff to advise that office practices must change to prevent further violations, and met with Medpace senior management to report those concerns. Rather than investigate her concerns, Medpace fired Dr. McGowan in retaliation for her good faith complaints of insurance fraud and violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

Dr. McGowan sued Medpace for, among other things, wrongful termination in violation of Ohio public policy. The jury unanimously concluded that Medpace’s retaliatory firing violated Ohio public policy and constituted a wrongful discharge. It awarded Dr. McGowan $300,000 in compensatory damages and $500,000 in punitive damages.

Despite the jury’s unanimous verdict, the First District Court of Appeals (the appellate court for Hamilton County) reversed the judgment based on a legal conclusion that is at odds with numerous other Ohio appellate courts and 25 years of Ohio Supreme Court precedent in this area.

Dr. McGowan asked the Ohio Supreme Court to review the case since it presented important legal issues for workers throughout Ohio, but especially in Hamilton County. The Supreme Court initially agreed to review the Court of Appeals’ decision. The parties filed lengthy briefs and argued the case to the Ohio Supreme Court on February 8, 2017. Then, a few weeks ago, the Supreme Court changed its mind and decided not to review the decision of the First District Court of Appeals after all. Such a decision is highly unusual. Even more unusual is the fact that the court gave no explanation for its decision.

As a result of the actions of the First District Court of Appeals and the Ohio Supreme Court, in Hamilton County it appears employees can now be fired for:

∙ Testifying truthfully, although unfavorably to their employer.
∙ Exercising their right to consult an attorney.
∙ Refusing to commit illegal acts, such as padding customer checks.
∙ Refusing to commit insurance fraud at their employer’s insistence.
∙ Reporting violations of HIPAA’s patient privacy and confidentiality provisions.
∙ Raising concerns about insurance fraud.

Elections have consequences. The voters of Ohio elect their judges, including Ohio Supreme Court justices. The current make-up of this court is decidedly anti-worker. The McGowan decision is just the latest example of that anti-worker sentiment. So the next time you think that your vote doesn’t matter, think again.

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