Since the United States District Court ordered Notice to 26 former Customer Sales Executives (CSEs) and Category Development Managers (CDMs) who were over 40 and were wrongfully terminated by Hershey of their opportunity to Join the case of Barnes vs. The Hershey Company (CV-01334-CRB (NC), a number of the former workers have contacted this office. Last week two filed consents to join the suit and several more will be joining shortly.

One recent former employee who joined was a long time Hershey CSE who worked in the Northeast region, primarily in Pennsylvania, while the other was also a long time Hershey CSE who worked in the Central region, primarily in Ohio.

They join Gregory P. Barnes, David C. Bolle, and Mary Wasson, all over 40, all of whom were long term excellent employees making excellent salaries, and were terminated involuntarily because, they believe, Hershey engaged in an illegal “blocker policy. (This is called “blocking” because older workers are perceived as blocking the progress of younger lower salaried workers.)

Speaking with the many of the former workers they amazingly tell of the same circumstance; they were in their CDM or CSE job for many years, they were asked to interview for the same position because of “restructure” or “reorganization” or told they would have to “relocate” because of “reorganization,”; they were passed over for a younger person, and in many cases they had to train the younger person who was deemed “better” for the job.

They were then given a brief period of time to find another job in the Hershey company, they applied, in many cases the jobs were lower paying than the former job, and they were then told there were no jobs available.

When long term employees are let go by quality companies for legitimate reasons, many companies offer severance packages as a way of thanking long term employees for their loyalty and service.  That did not happen here.

Once it was clear there was no other job for them with Hershey, they were told they would receive a modest sum if they signed a “Confidential Separation Agreement and General Release” which they were told barred them from any further action ever against Hershey. Hershey gained a lower paid employee whose pension obligations would provide significant benefits to Hershey. No doubt with an eye on avoiding pension and benefit obligations, the agreement stated the employee was forever barred from working from Hershey and would not seek re employment with Hershey.

Quality long term workers over 40 were wrongfully discharged by a company that claims on its website:

Here at The Hershey Company, we are committed to treating our employees well and helping them “unwrap” their potential. This happens through our emphasis on safety and wellness, inclusion, and our employee engagement efforts. We strive to reward our employees with more than a paycheck—from providing a welcoming environment and competitive benefits programs to many comprehensive development opportunities.

A question you may have is whether the “Confidential Separation Agreement and General Release” severance agreement containing a release signed by many is a BAR to joining the suit.

The Answer is a resounding NO.

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).

For former CSEs and CDMs over 40 at the time they were terminated the Notice to Join states:

Under the Age Discrimination in Employment Act (“ADEA”), Plaintiffs seek payment of lost compensation, in terms of lost salary and benefits, and liquidated damages in an amount equivalent to their lost salary and benefits.  Plaintiffs also seek a declaratory judgment, an award of reasonable attorney’s fees and costs, and such other relief as may be just and proper…

The Notice sets May 3, 2013 as the deadline to join.

If you believe you fall within this definition and believe that Hershey terminated you because of your age, you may “Opt-In” to this lawsuit – meaning you may join the lawsuit as a plaintiff.  Only those who “Opt-In” will be allowed to participate.  To “Opt-In,” you must complete, sign, and mail the Consent to Join form attached to the back of this Notice to Plaintiffs’ Counsel so that it is received on or before May 3, 2013

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…”

The Notice also 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.

The Brandi Law Firm has successfully represented, along with Attorney David Feola, Hershey RSRs in a FLSA collective action for failure to pay overtime, and currently represent over 150 RSRs seeking overtime benefits stemming from Hershey continually not complying with the law.

If you wish further information contact Brian Malloy at the Brandi Law Firm at 800-481-1615 (bjm@brandilaw.com).