Archive for May, 2010

Many employees, who are hourly employees, question whether or not their employer must give them lunch breaks or rest breaks during the course of the day. The general answer, under Federal law, is no. However some states have their own rest or lunch break statutes for employees, which as of the posting of this blog, include: California, Colorado, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, New Jersey, North Dakota, Puerto Rico, Ohio, Oregon, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin. Each of these laws vary as to what type of break must be provided and to whom they must be provided so take a look at the relevant laws for your state.

Those of you who don’t have an applicable state law, do not fret. Under the Federal Fair Labor Standards Act (FLSA), If your employer does have a policy of giving rest breaks of about 20 minutes or less, must pay employees for their time while on such work breaks.

In other words, the FLSA does not require employers to give rest breaks of any length. But, if employers give short rest breaks anyway, under the FLSA the work breaks are counted as time for which employers must pay employees. If authorized rest breaks extend work hours into overtime, under the FLSA employers must pay the overtime to eligible employees.

MEAL BREAKS

Under the FLSA, if employers do give meal breaks voluntarily, they do not have to pay employees while they’re on such work breaks. However, the breaks must be bona fide meal breaks for employers to be relieved of break pay.

For example, an employer who voluntarily offers a daily meal break by policy, but who does not pay employees while they’re on their meal break, must allow employees to take the whole break without working. Otherwise, it is not a bona fide meal break under the FLSA. Instead, it counts as work time, for which the employer must pay employees.

In other words, employers can’t simply label work breaks as meal, dinner or lunch breaks to evade paying employees while they’re on such breaks. Employers must allow employees to take meal breaks free of work duties.

One interesting issue that has arisen lately is with regard to “smart time clocks” which automatically deduct from an employees time card a thirty minute lunch break, whether you take it or not and whether you work through lunch or not. If your employer is automatically taking out your lunch break and you are either not taking the lunch or working through the lunch, then your employer needs to pay you for this time and include it in overtime calculations.

If your employer is violating any of these rules, go seek the assistance of an employment law attorney, or the U.S. Department of Labor.

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You may recall that I recently posted about whether your employer can say bad things about you. I also said that these cases are not always the greatest unless you line all your cards up and make sure that you can prove your employer or former employer is saying bad things.

Well, a recent article by Lawyers USA shows what success an employee can have where they have lined all their ducks up. According to this article the number one jury verdict of 2009 was out in California and was against George Marciano, of Guess Jeans.

In this case, a Los Angeles jury awarded five former employees of Guess, a total of $370 million ($74 million) to each employee, due to Marciano’s defamation of these employees after their termination.

According to the employees, Marciano used his wealth and connections to cause investigations, tax audits, and accusations against them, all of which ended up in the newspaper or on Internet sites. Marciano then sued the former employees claiming, among other things, that they had stolen from him money, art, wine, and coin collections. His lawsuit was dismissed.
The former employees’ lawsuit against him was not dismissed. Indeed, Marciano was found to have engaged in “malicious and oppressive” conduct, defaming the former employees and causing them emotional distress. The employees were awarded compensatory and punitive damages.

So the moral of the story is the little guy/gal can win in these defamation claims against their former employer. You just need to make sure you document and obtain as many witnesses as possible to give yourself the greatest possible chance of success.

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There has an increase in weight discrimination charges under the Americans with Disabilities Act (ADA) and I think potentially there could be claims for weight discrimination under GINA which pertains to genetic discrimination (take a look at my post several weeks ago on that law). Frankly, I think that people with severe obesity problems would have a good chance of claiming this type of discrimination. But now a 132 pound Hooters waitress in Michigan, Cassie Smith, has claimed weight discrimination.

Hooters had just given Smith a glowing, two year review.

“I had excellence in… dealing with customer complaints and customer satisfaction,” she said.

However, her bosses and two women on a conference call from the company’s headquarters in Atlanta changed their tune when it came to her uniform evaluation.

“We have that your shorts and shirt size could use some improvement,” said Smith.

Cassie, who is almost five foot, eight inches tall and weighs 132 pounds, claims she sat there while she was told that if she wanted to keep her job, she needed to drop some weight.

“These women proceeded to explain to me that I had 30 days and they would give me a free gym membership, and if I didn’t improve within those 30 days I would be separated from the company,” she said. “If I improved a little bit I would get 30 more days, and if I improved completely they would leave me alone.”

Cassie does not have a problem squeezing into her skimpy uniform, which is an extra small tank top and shorts. In fact, she says when she started this job two years ago, she weighed about ten pounds heavier than she does now.

For Cassie, the damage has already by done. She feels she is a victim of weight discrimination by a corporation with unrealistic expectations.

“I don’t want other girls to have to go through this. I don’t want anyone to have to go through this,” she said. “If I could’ve gone back and not worked there for two years to take back that feeling, I would do it.”

Hooters argues that this was not weight discrimination because it is similar to the standards used by the Dallas Cowboys cheerleaders or the Radio City Music Hall Rockettes. In other words, Hooters is claiming that they have a legitimate business reason for this policy. I guess it remains to be seen whether their policy will hold up with the courts.

What do you all think?

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One of the areas of frequent complaint with employers, especially in areas such as South Florida and California is whether an employer can force an employee to speak only english in the workplace. In some instances, this requirement is a violation of federal and/or state law constituting national origin discrimination.

Some of these rules implemented by employers are referred to as “English Only” rules. The question with these types of rules is whether the employer had a business justification for having such a rule. Even where an English-only rule has been adopted for nondiscriminatory reasons, the employer’s use of the rule should relate to specific circumstances in its workplace. An English-only rule is justified by “business necessity” if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule:

For communications with customers, coworkers, or supervisors who only speak English

In emergencies or other situations in which workers must speak a common language to promote safety

For cooperative work assignments in which the English-only rule is needed to promote efficiency

To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers

So for example, if you work in a bank, it may be appropriate for your employer to speak only English in dealing with customers or on the front line, but it may not be appropriate to discipline an employee for speaking another language in the break room with another employee.

As with other employment laws, it would also be illegal for an employer to terminate or retaliate against an employee for complaining about English only requirements in the workplace.

If you believe that your employer is wrongfully using an English only rule, you should speak with the Human Resources Department or if necessary go the the EEOC or an employment lawyer to discuss these issues and possibly file a Charge of Discrimination.

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On many occasions employees ask whether or not they have a legal claim against their former employer or employers for giving bad references or saying bad things about them. The answer is you might have a claim if the information furnished by the employer was false. Under most state laws there could be a claim for defamation or slander. Your state may have its own employer reference statute. So research the applicable laws in your state. However, in Florida there is a statute that protects employers from giving references. It is contained at Florida Statutes 768.095. It provides as follows:

768.095 Employer immunity from liability; disclosure of information regarding former or current employees.–An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

Due to this statute, it makes it more difficult in Florida to bring a claim for bad references against an employer unless you can show that the information provided by the former employer was knowingly false.

In any state, I would first go to one of the companies out there that calls to check on references given by former employers. Then you will have a witness and/or written statement of what was said by your former employer. That will make your claims against your former employer much easier.

One of the companies you can check out is www.badreferences.com. They will call your former employer, prepare a written report and even testify as a witness in court if necessary.

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While the American With Disabilities Act (ADA) has several components, the portion I am going to talk about right now is Title I which pertains to discrimination in employment practices where the employer has more than 15 employees. Many state and local anti-discrimination statutes provide the same relief as under the ADA for employers with less than 15 employees.

The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.

A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the oeessential functionsî of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.

The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one.

Until 2008, the effect of the ADA had been gutted by decisions of the U.S. Supreme Court that made it virtually impossible for an employee to have a disability that qualified under the ADA. However, in 2008, Congress passed the ADA Amendments Act of 2008 to remedy the rulings of the U.S. Supreme Court.

The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

If you believe you are being discriminated against by your employer file a written complaint with your human resources person and ask for an accommodation. If that does not work, you may want to file a complaint with the EEOC or go to an employment lawyer.

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As some of you may be aware, in April, Congress passed a retroactive 2 month extension of federal unemployment insurance programs and a two month of extension of time to qualify for the COBRA subsidy. These programs expire however at the end of this month.

Probably on Wednesday, the House of Representatives will be take up a bill that would extend Unemployment Insurance and COBRA through the end of December 2010. There will be fierce debates over whether to approve this extension based upon the cost of the bill and the claims that it will add to our federal deficit. As if this extension of benefits would even marginally impact our federal deficit….LOL.

Needless to say, the persons who oppose this bill are short sighted. Even if you don’t personally need the relief, if it is given to others, it helps support your community and probably will keep the foreclosure crisis from getting worse than it is.

Please contact your Congresspersons this week and let them know that this relief needs to be supported to help out all for the workers of this country. You can call the Capital switchboard at (202) 224-3121 and they will put you through to the right office. Tell them that you demand that they vote in favor of extending unemployment and COBRA benefits through the end of the year.

If you wish to click on a link that will allow you to e-mail the appropriate representative from your district go to http://www.nelp.org/page/speakout/BenefitsNOW. This is a link by the National Employment Law Project.

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On many occasions, employees come to me who are working dozens of hours for their employers, but are not getting paid overtime.  I ask them why and the response is , I’m salaried or I’m exempt.  However, you should be aware that just because your employer calls you salaried or exempt does not necessarily make it so as a matter of federal law.  I mean, if your employer calls an apple an orange, it does not make it so, right?

In many instances, employers will call an employee exempt and pay them a salary merely to avoid having to pay their employees overtime.  Getting your employee to work for as many hours as possible for no additional compensation makes good business sense, right?  But its not fair to employees.

So the question for you to determine and ask the U.S. Department of Labor or an employment law attorney is whether I am really an exempt salaried employe or not.  This is not a simple question and the body of Federal law that governs this area,  the Fair Labor Standards Act or FLSA, is complex.

On of the areas that an employer is entitled to pay an employee a salary and call them exempt is if they are in a management or executive type of position.  There are a number of guidelines issued under the Fair Labor Standards Act which determine whether or not you are really a manager who should not get overtime.  I have had many clients where they were called “assistant manager” by their employer to avoid being paid overtime, but according to law should have been paid hourly with overtime.

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three “tests” to be exempt.

An employee who meets the salary level tests and also the salary basis tests is exempt only if s/he also performs exempt job duties. These FLSA exemptions are limited to employees who perform relatively high-level work. Whether the duties of a particular job qualify as exempt depends on what they are. Job titles or position descriptions are of limited usefulness in this determination. (A secretary is still a secretary even if s/he is called an “administrative assistant,” and the chief executive officer is still the CEO even if s/he is called a janitor.) It is the actual job tasks that must be evaluated, along with how the particular job tasks “fit” into the employer’s overall operations.

There are three typical categories of exempt job duties, today I am just going to discuss executive or management level job duties.

Job duties are exempt executive job duties if the employee

  1. regularly supervises two or more other employees, and also
  2. has management as the primary duty of the position, and also,
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignment of job tasks)

“Mere supervision” is not sufficient. In addition, the supervisory employee must have “management” as the “primary duty” of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):

  • interviewing, selecting, and training employees;
  • setting rates of pay and hours of work;
  • maintaining production or sales records (beyond the merely clerical);
  • appraising productivity; handling employee grievances or complaints, or disciplining employees;
  • determining work techniques;
  • planning the work;
  • apportioning work among employees;
  • determining the types of equipment to be used in performing work, or materials needed;
  • planning budgets for work;
  • monitoring work for legal or regulatory compliance;
  • providing for safety and security of the workplace.

Determining whether an employee has management as the primary duty of the position requires a case-by-case evaluation.   This is why if you have any doubts, you should consult with the U.S. Department of Labor or with an employment law attorney.

Will try to cover over the next couple of days some of the other FLSA exemptions.  A listing of many other exemptions contained in the FLSA are on the U.S. Department of Labor web site at http://www.dol.gov/elaws/esa/flsa/screen75.asp.

Don’t let your employer take advantage of you…..get the overtime you deserve.

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In my representation of employees in employment cases, there is already an increase in use of information from social networking sites.  Yes, that is correct, if you sue your current or former employer, they could try to serve a subpoena on facebook, myspace, etc to obtain information relevant to your lawsuit.  While any good litigation attorney would object that this type of discovery violates privacy concerns, there are some judges who would allow this type of information to be obtained.  For instance in a sexual harassment case, maybe the employer is arguing that you had a consensual relationship with the employee or supervisor and maybe your facebook account supports that argument.

Now it appears that an online Communications services company called Teneros has created a software product known as Social Sentry that can automatically monitor the Facebook and Twitter accounts of employees. The cost to the employer would run between $2 and $8 for each employee, with the precise cost being dictated by factors such as the parameters of the social networking to be monitored and the company size.

While prior to advent of Social Sentry employers were capable of doing some social networking monitoring, the value of that monitoring could be outweighed by the sheer enormous volume of social networking data available on the Internet. Social Sentry supposedly will automate the process for employers and make it easier to pinpoint the type of activity for which they have an interest.

While it would still have to be determined whether the employers are within their rights to obtain some of this information, the word of caution is watch what you post….it could come back to haunt you.

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A woman who tested positive for the breast cancer gene brought suit against her employer MXnergy for violation of the Genetic Information Nondiscrimination Act of 2008 (GINA) which President George W. Bush signed into law in May 2008. The law – which took effect in November – bars discrimination by employers and health insurers based on a person’s genetic information, which also includes family health history.

After learning she carried the hereditary BRCA2 gene linked to many breast cancers – and that she had an 80 percent chance of getting the disease – Fink took two weeks of paid medical leave and underwent a double mastectomy on October 9, 2009. On January 22, 2010 she had reconstructive surgery.

The day before her second surgery,  she received a “negative and scathing” review. Two months later, on March 25, Fink was fired – because her “position was terminated,” says the complaint. But Fink – a mother of two and the family’s main breadwinner – says a consultant was hired to do her job while she was recuperating from her first surgery and that the woman was promoted to be her boss when Fink returned.

The article about this first lawsuit filed under GINA is posted at http://www.inc.com/news/articles/2010/05/woman-claims-genetic-discrimination.html.

So the question is what does the Genetic Information Nondiscrimination Act of 2008 (GINA) provide as far as protections for employees.  The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee.  Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.  It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file.

So how does the Act define “genetic information”?  Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

The EEOC is responsible for enforcement of this Act, so presumably, if you believe a violation has occurred you may wish to file a complaint with the EEOC.  You should also speak with an employment law attorney if you believe a violation of the statute has occurred.

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