The deadline to join the pending age discrimination case against Hershey is this Friday, May 3, 2013. In talking with some of the 26 people over 40 who were wrongfully fired by Hershey from their jobs as Customer Sales Executives (CSEs) and Category Development Managers (CDMs) and who have not yet joined the suit, the following questions were raised by them as potential concerns.
1. Can Hershey do anything that will hurt me with my current employer and jeopardize my new job?
The Notice to Join this Suit to the Former employees from the Court states:
Federal and state law prohibits Hershey from taking adverse action against persons based upon the fact that they have exercised their rights to participate in this lawsuit (Barnes vs. The Hershey Company (CV-01334-CRB (NC))
Simply stated, to reinforce the correct legal statement from the Court, you have a myriad of legal protections on your side if a former employer were to attempt to interfere with your business relationship with your new employer, make false statements about you or engage in disparaging conduct designed to adversely impact your ability to earn a living or cause you harm.
2. What type of damages can I recover if successful?
Answer: The law provides financial compensation for lost wages, lost pension, liquidated damages and attorneys’ fees. For example, if you were out of work six months to a year, and took a new job at less salary (say $60,000 a year), a jury could award you the difference between what you would have received at Hershey if you were not wrongfully fired and what you will actually receive at your new job in salary up until the time of your retirement, plus the difference in health and other benefits, and the difference in pensions after you retire. If the facts establish that Hershey acted willfully, in bad faith, or recklessly by targeting people over 40 for replacement with younger lower salaried personnel, Hershey could be subject to additional damages.
3. But I am still worried about the Confidential Release that I signed. Hershey told me that I am forever barred to bring an action because I received a severance payment. Is that true?
If you previously signed a “Confidential Separation Agreement and General Release” or other severance Agreement or Release, you are still eligible to join this case.
In 2012, Hershey filed a motion with the Court seeking to have the claims of two of the three plaintiffs dismissed based on releases signed by them. The Court denied Hershey’s request to dismiss, ruling that Hershey had not met its burden of showing that legal releases signed by the plaintiffs were valid under federal law. In coming to this decision, the Court correctly gave a broad reading to the Older Workers Benefit Protection Act (OWBPA).
The Notice sets May 3, 2013 as the deadline to join. The Notice also states:
IV. THE LEGAL EFFECT OF NOT JOINING THIS LAWSUIT
“…if you do not join this lawsuit, you will not recover any proceeds from the lawsuit if Plaintiffs are successful…”