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Lawsuits contain lessons

By Scott Barancik, Litigation Nation
Published June 9, 2007

It may not be the most efficient way to learn how to manage legal risk. But for a crash course on workplace dos and don'ts, there's nothing better than leafing through a pile of employment lawsuits.

Of course, separating truth from fiction in such cases can be difficult, especially in the early stages. But in these recent local examples of litigation, the lessons are pretty clear.

Lesson #1: If you want to fire an employee who happens to be a reservist in the military, make sure you have a good - and well-documented - reason.

Kforce Inc. may have learned this lesson the hard way last month. In a lawsuit, former technology recruiter Patrick Fennell claims he was performing well when he told a supervisor about his plans to join the U.S. Army Reserve. He says the supervisor counseled him to "work extra hard" in the coming months so management would have no excuse to fire him.

Fennell lasted another month. Within days, he claims, Kforce wrote him up for "lack of productivity, " another time for arriving 10 minutes late to work and then terminated him, allegedly in violation of the federal Uniformed Services Employment and Reemployment Act. It's hard to believe a national staffing company could be so clueless.

Lesson #2: Don't ask job applicants how old they are, no matter how benign your motives.

William DeMarse liked his chances. His application to manage a Cracker Barrel store listed his 15-year career managing Pizza Hut and Burger King restaurants, his college degree and his readiness to work a 55-hour week, dawn till dusk.

But DeMarse, now 61, didn't get hired, and the Tampa resident believes it may have been because of his age. If age weren't a hiring issue, why would Cracker Barrel's application form ask for a job candidate's date of birth? Spokeswoman Julie Davis says the company does not discriminate. A disclosure note on the form says Cracker Barrel collects birth dates to ensure accurate background checks.

Doesn't matter, says Dave Linesch, a Palm Harbor lawyer who is filing a nationwide class-action suit against the 559-store chain. Asking a candidate's age violates the federal Age Discrimination in Employment Act. "It's hard to get such stupidity out of a large corporation these days," he says.

Wouldn't it be more clever to check the year a candidate graduated from school, or simply get the birth date from a background check?

Lesson #3: If you hire a snake, guard your eggs.

In most respects, it's a standard noncompete case. First Advantage Litigation Services, a subsidiary of St. Petersburg's First Advantage Corp., says a former employee violated his employment contract by soliciting its customers.

The British national probably wouldn't have had much trouble pilfering a customer list from his employer. First Advantage identifies him as a forensics expert whose job was to mine computers for evidence of trade-secret theft and other corporate misdeeds.

Scott Barancik can be reached at barancik@sptimes.com or (727) 893-8751.

[Last modified June 8, 2007, 23:13:28]