Monday Morning Minute
In This Issue
A McDonald's [Franchise] Finds Itself Involved in Religious Discrimination Suit
Avoiding Headhunter Fee Disputes
New Jersey Extends Medical Marijuana Protections for Applicants and Employees
Fifth Circuit Holds that District Courts Cannot Automatically Send Notice of FLSA Collective Actions to Employees
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                  July 22, 2019


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The EEOC filed suit in U.S. District Court for the Middle District of Florida, Orlando Division against Chalfont & Associates Group, Inc., owner of multiple McDonald's restaurĀ­ants in Central Florida.

The lawsuit alleges that the Defendant violated federal law when it refused to hire a job applicant who was a practicing Hasidic Jew and would not shave his beard due to his religious beliefs.  Specifically the allegations state that the applicant was hired as a part-time maintenance worker position at a McDonald's in Longwood, Florida but was told that he needed to shave his beard to comply with McDonald's grooming policy. McDonald's grooming policy states "...[a]ll employees must be completely clean shaven." 

However, the applicant told the hiring manager he would not shave his beard due to his religious beliefs. The appliĀ­cant offered to wear a beard net as a solution, but Defendant denied this accommodation.  

This is a good reminder to employers that while grooming standards are not typically per se a religious violation, failure of an employer to grant accommodations for such sincerely held beliefs when the employer becomes aware are indeed an issue.  Employers should also remember that the standard of accommodation for religious beliefs is not the same as that for disability.  Make sure you are familiar with both.  

Should you have further questions or concerns, contact an Attorney at Spognardi Baiocchi.  

In Illinois, it is customary that an employer pay a recruiting agency who successfully placed a candidate with the employer a fee equal to a predetermined percentage of the candidate's annual salary. Unless otherwise specified, such a contract is deemed to be valid for one year.
To be entitled to the recruiting fee, it is essential that the recruiting agency show they are the "motivating force" behind the placement. To be considered the motivating force, at a minimum, one of the four criteria must be met 1) the agency must have discussed the applicant with the employer; 2) the employer must have agreed to interview the applicant; 3) the applicant must have agreed to interview with the employer; and 4) the agency or the employer must have set the arrangements in motion for the interview.
Often a dispute arises where two recruiting agencies seek a recruitment fee for placing the same candidate. Employers should only use one recruiting agency to avoid a dispute over who is entitled to a recruitment fee. In addition, employers should communicate that they are working with one agency exclusively and refuse to look at unsolicited resumes from other recruitment agencies.            
Contact Spognardi Baiocchi if you need help with your recruitment management efforts. 

On July 2, New Jersey Governor Phil Murphy signed the Jake Honig Compassionate Use Medical Cannabis Act into law, which significantly amended and expanded the New Jersey Compassionate Use Medical Marijuana Act ("Act").  The new provisions and amendments to this Act become effective immediately.  Therefore  employers affected should immediately review and update any policies and handbooks for operational and written compliance.

Under the amendment to the Act, some of the more relevant provisions include: 

  • Employees and job applicants who use lawful medical marijuana off premises and during non-working hours are expressly protected from discrimination; 
  • Employers are prevented from taking adverse employment action against an employee or applicant "based solely on the employee's status" as a registered medical marijuana patient; 
  • If an employee or applicant tests positive for marijuana, the employer must provide the employee or applicant with written notice of the positive test result and notify him or her of his or her right to explain the positive drug test result by presenting a "legitimate medical explanation" within three workdays;
  • If an employee or applicant tests positive for marijuana, the employee or applicant has a right to request a confirmatory retest of the original sample at his or her own expense within the three-day period.
Although the amendment limits a New Jersey employer's ability to enforce a zero-tolerance drug policy, the amended law includes a carve-out allowing employers to take an adverse employment action against a medical marijuana user if the employer's accommodation of the employee or applicant's lawful off-duty use would "violate federal law or result in the loss of a federal contract or federal funding."

New Jersey now joins the ranks of various other states, including Arizona, Illinois, Minnesota and Nevada which have made employer zero-tolerance drug policies almost extinct.   The trend keeps moving in favor of not just medical marijuana, but also recreational marijuana. Employers will need to continue to evolve their policies and application of such policies in light of the ever changing landscape.  Contact any Attorney at Spognardi Baiocchi for more information.  

The Fifth Circuit which includes the states of Texas, Mississippi and Louisiana, became the first  federal court of appeals to hold that employees who signed valid arbitration agreements should not receive notice of FLSA collective actions by district courts.  

According to the Fifth Circuit, because the arbitration-bound employees are not eligible to participate in the lawsuit, district courts do not have "unbridled discretion" to send notice to potential opt-in plaintiffs.  If there is a genuine dispute as to the validity of an arbitration agreement, the following test should be applied: 

1. The employer has the burden to show by a preponderance of the evidence that there is a valid arbitration agreement as to any particular employee. 

a. if the employer meets this burden, the district court should not notify the arbitration-bound employees at issue; 

b. if the employer fails to establish the existence of a valid arbitration agreement, that employee should receive the same notice as other employees.

Should you have any questions or concerns as to how this may apply to your current arbitration requirements with employees, contact any Spognardi Baiocchi Attorney of your choice. 

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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