To: Mr. Samuel Gompers, Owner – Tulip, Inc.

dba: The Tulip

From: Ronald Burkhardt – Director of Human Resources (@00150505)

Date: July 31, 2022

RE: Potential legal concerns

Mr. Gompers,

Per your request, I have looked over your list of concerns and have compiled some pertinent

information about them. I will discuss them not in the order of severity, but in the order that you

presented them to me.

Concern #1 – Your former employer, Mr. Bill Sylvis has threatened to file suit against you for poaching
employees, customers, and allegedly downloading Mr. Sylvis’ client list. What can you do to protect
your business from a similar occurrence? What steps can you take to protect your interests? How can
you protect your business secrets?
I will reference the case of BDO Seidman v Hirshberg, NY Court of Appeals, 712 N.E.2d 1220

(1999) (Hereinafter Hirshberg). In Hirschberg, an employer brought suit against a former employee,

alleging that the ex-employee was in violation of a particular type of non-competition clause known as a

‘reimbursement clause.’ Under said reimbursement clause, the ex-employee had signed a Manager’s

Agreement with his employer stating that in the event of his leaving the position, he would be required

to reimburse his original employer for any clients that would follow him, for a period of 18 months. In

the Hirshberg discussion on page 371 it is revealed that the prevailing common law standard for such

non-competition clauses is three pronged. The pretense is that the restraint is only reasonable if (1) is

not greater than the legitimate interest it is intended to protect, (2) It does not impose an undue

hardship on the ex-employee, and (3) it does not have an adverse effect on the public. In the absence of

such an agreement between yourself and Mr. Silvis, I would anticipate no issues related to your

attempting to ‘poach’ employees from Mr. Silvis, or from bringing his customers with you, if you

interacted with them during the normal course of your work there. The issue that arises is by
downloading Mr. Silvis’ customer list, you effectively engaged in the theft of trade secrets as referenced

in Hirshberg Note 5, on page 379.

In Pepsico, Inc. v. Redmond, United States Court of Appeals, 7 th Circuit, 54 F.3d 1262 (1995) the

courts affirmed Pepsico’s right to enjoin Redmond, their former employee, from assuming his new job

for a specified period stemming from the alleged theft of trade secrets. I feel quite certain, that Mr.

Silvis would be able to garner a favorable decision from the court should he opt to file suit, especially

considering the way in which you obtained the customer list. Because of the delicate nature of this

information, and your desire to ensure that a similar situation does not arise with any of your current or

future employees, I would suggest that we author a comprehensive Manager’s Agreement that clarifies

a specific non-competition term, and a fair reimbursement clause, as well as identifying your client lists,

recipes, and any other trade secrets that you wish to protect.

Concern #2 – Ms. Molly Jones, server and former Assistant Manager candidate has threatened to file
an EEOC suit for sex discrimination after you informed her that you need someone who would be
tough with the staff and not cry if the situation became difficult, as you have seen in the past at
another banquet facility when they promoted a female to that position. What concerns are there
regarding making a judgement call in hiring practices? (Note: The Tulip has more than 15 employees
bringing it under the umbrella of Title VII.)

In the concern involving Ms. Jones, despite your previous experience with a female holding the

position of Assistant Manager at your previous place of employment, you are expressly prohibited from

excluding someone based upon their belonging to a protected class identified by the Title VII of the Civil

Rights Act of 1964. While you have every right to use your judgement when hiring or promoting an

employee in your organization, by informing Ms. Jones your decision was based upon your concerns that

she would exhibit weakness by expressing emotions in a stereotypically female fashion, you are violating

the spirit of Title VII. If, and only if, you employed fewer than 15 employees, you would not fall under

the umbrella of Title VII requirements, but that is not the case. Case law is clear, as evidenced by Price

Waterhouse v. Hopkins, SCOTUS, 490 U.S. 228 (1989) (hereinafter Price Waterhouse) in which Hopkins
was denied a partnership at the Price Waterhouse accounting firm based solely upon sex stereotyping

and similar statements regarding that stereotyping were made by individuals at the firm.

In Price Waterhouse, the courts suggested that the firm could defend their decision not to make

Ms. Hopkins a partner if they could provide “clear and convincing evidence” that they would have

arrived at the same decision regardless of the discrimination that existed. In the end, the courts found,

and SCOTUS affirmed, that Price Waterhouse did not meet its burden of proof and enjoined the firm to

make her a partner and provide back wages as evidenced in the Price Waterhouse Note on page 415.

Similarly, in the absence of such proof that you would not have promoted Ms. Jones despite the

discriminatory remarks regarding why you were removing her from consideration, I would see a similar

outcome should she decide to bring suit against you with the Equal Employment Opportunities

Commission.

Concern #3 – Hiring concerns for a potential employee with a disclosed disability regarding ADAAA.
Are we obligated to hire them? Explain the ADAAA guidelines.

In regard to your job applicant who self-disclosed that they are hearing impaired, you should

proceed with caution. While you are not compelled to hire an applicant with a disclosed disability, you

must be able to show quantitatively that the disability was not the sole reason for your decision.

Additionally, the Americans with Disabilities Act makes it clear that if an individual with a disability is

able to perform the essential functions of the job with reasonable accommodations, then they may not

be excluded from consideration. A reasonable accommodation is one that does not impose an undue

hardship on the employer. If another individual is more qualified, the employer is not excluded from

rejecting the applicant with a disability, however, to be clear, the burden of proof will be on the

employer to prove that the non-disabled applicant possesses better qualifications.

The Americans with Disabilities Act – Amendments Act of 2008 (hereinafter ADAAA) discussed in

the case of Morriss v. BNSF Railway Company, US Court of Appeals, 8th Circuit, 817 F.3d 1104 (2016)
Note 1, page 318. The ADAAA focused on broadening the definition of a disabled person from the

Americans with Disabilities Act proper to offer protection to a larger group of individuals. The ADAAA

has specifically excluded several groups from its definition of disabled persons, including, homosexuality,

transvestism, compulsive gambling, and current illegal drug users. Former users of illegal drugs do fall

under the umbrella of protection of the ADAAA. Please be aware that some of the above-mentioned

groups of individuals do fall under the protective scope of the Civil Rights Act of 1964, however and their

exclusion under the ADAAA is not an acceptable reason to reject their applications for employment.

Pre-employment inquiries about disabilities is expressly prohibited. Medical examinations are only

permissible after a conditional offer of employment has been made. With this in mind, many employers

are unaware of an employee’s disability until such time as they are approached by an applicant

regarding their difficulty in performing job duties after a conditional offer has been made. Finally, an

applicant’s religious beliefs are also not an acceptable reason to reject an application. Under the Civil

Rights Act of 1964, Title VII, reasonable accommodations must be made for those with sincerely held

religious beliefs. While this does not fall under the purview of ADAAA, I felt that this was a legitimate

opportunity to mention this protected class as well.

Concern #4 – Privacy concerns related to use of keystroke logger on company computers to identify
private login and password information of the employees. Disclosure of rates of pay between
employees even after an email forbidding it.

There are several concerns in the matter concerning Mr. Lewis and his emails to co-workers

outside of work suggesting that they apply pressure for improvements to their pay. The most pressing

matter would be that this conduct may be protected as a concerted activity, which was intended to

promote a unifying force to benefit the whole of employees and not simply Mr. Lewis. In Timekeeping

Systems, Inc, National Labor Relations Boad, 323 N.L.R.B. 244 (1997) (hereinafter TSI) an employee was

terminated after sending an email to his coworkers pointing out errors in the company’s proposed

changes to their vacation system. After refusing to write an ‘apology’ of sorts, the employee was
terminated. After hearing the arguments, the National Labor Relations Board enjoined the company to

reinstate the employee with backpay as his communications were protected as concerted activity. If

this was the case for an email sent on company time, on the company email server, it goes without

saying that an email sent outside of work, to private emails of coworkers should meet that standard as

well. I feel that any attempt at prohibiting the discussion of pay or working conditions in general would

fall under this umbrella as well. The willingness to disclose rates of pay between individuals would be a

personal matter between them. If nothing else, this should compel an employer to have a standardized

pay scale for different positions, so that there should be no surprises if employees discuss their pay.

More concerning would be the privacy concerns regarding how you came to know about the

email, as you were not an original recipient of it. While it might be argued that the information logged

on business computers is a legitimate business concern, the use of a keystroke logger to gain private

passwords to employee’s personal email accounts, and then the repeated use of that information to

secretly access the private email accounts of an employee is concerning. The case of Ehling v.

Monmouth-Ocean Hospital Service Corporation, District of New Jersey, 872 F.Supp.2d 369 (2012)

(hereinafter Ehling) addresses a similar issue. In Ehling, an employer repeatedly accessed an employee’s

Facebook posts by pressuring another employee to login to their Facebook and show the employer what

the other employee was sharing through her private Facebook account. By accessing Mr. Lewis’ private

email account, a similar theme is at play. The Ehling court held that the plaintiff had a reasonable

expectation of privacy regarding her Facebook posts as the account was set to private and not public.

Concurrently, the defendant’s motion to dismiss in this case was denied, and the matter was remanded

for trial. Bearing this in mind, I feel that Mr. Lewis’ concerns would also be granted a trial should he

become aware of your intrusion.

Concern #5 – Gene Debs was terminated for violation of a policy forbidding fraternization between
management and staff. You have instructed HR to notify you of any calls for references for Mr. Debs,
so that you can handle them personally. My advice regarding your seeking retribution in this manner.
Are there concerns for wrongful termination in this matter?

Lastly is the matter of Mr. Debs. This matter identifies two possible concerns. The first being

the fraternization policy. In Brunner v. Attar, Court of appeals of Texas, 786 S.W.2d 784 (1990) matters

of off-work privacy claims were discussed. In Note 7 on page 279, it is reasoned that rarely will the court

second-guess a discharge of an at-will employee, even for having a romantic relationship with another

employee. This applies for plaintiffs who allege that the employers violated the ‘Lifestyle Statute” of a

tort of wrongful termination. For this reason, I would feel comfortable that you would have limited risk

should a suit be filed by Mr. Debs.

In the matter of you requesting that all employment reference requests for Mr. Debs be

directed to your attention, there is more of a concern. In the case of Sigal Construction Corporation v.

Stanbury, District of Columbia Court of Appeals, 586 A.2d 1204 (1991), a former employee successfully

filed suit against his former employer by alleging that he was slandered by his former employer when a

prospective employer contacted them for a reference. At trial, the court found that there was sufficient

evidence that a “reasonable jury could find by clear and convincing evidence” that the former employer

had abused a qualified privilege by acting with “gross indifference or recklessness to amount to the

wanton and willful disregard” of the former employee’s rights. Given your strong personal feelings

toward Mr. Debs in this situation, I would be concerned that you might allow your opinions of Mr. Debs

get in the way of objective facts regarding his employment. Because of this, I feel that it would be better

to allow the Human Resources Department to field and potential reference requests for Mr. Debs.

I hope that this proves helpful in addressing your concerns in these matters moving forward. As

always, I am at your disposal for further clarifications or suggestions.

Respectfully,

Ronald Burkhardt, Director of Human Resources