Archive for June, 2010

As I have preached on many occasion on this blog, be careful of what you do online that your employer may become aware of since it may haunt you in your job at a later time. Even where, as in the sex bloggers case, you try to keep your online activities anonymous, sometimes it does not always work out that way.

A 37-year-old blogger and mom The Beautiful Kind (“TBK”) was happily employed doing part-time office work for a nonprofit organization, and hoped she would soon go full-time. Instead, a “Twitter glitch” led her boss to her blog, which included a sex-advice column, porn reviews, and descriptions of TBK’s own sex life (she’s since taken down most of the content). However an April 23 post, was still available in cached form:

Here’s what’s coming up! 1. This week I’m having my first colonic, as well as my first pussy modeling session (but not at the same time) 2. Next week I’ll be sharing one of the hottest moments of my life. It will come at you in three smokin’ parts.

TBK claims she had originally signed up for a Twitter account under her real name, then quickly changed it when she saw it showed up on her profile. However, Twitter apparently saved the name, and “third party social media search engines such as Topsy crawled and found this glitch and spread it around the internet.” The result: when her boss Googled her last week, he found her blog, although the blog itself never listed her name. The employer’s search resulted in a termination letter as follows:

We simply cannot risk any possible link between our mission and the sort of photos and material that you openly share with the online public. While I know you are a good worker and an intelligent person, I hope you try to understand that our employees are held to a different standard. When it comes to private matters, such as one’s sexual explorations and preferences, our employees must keep their affairs private.

While the employer claims that her termination was due to business concerns, the sex blogger claims that she did her job well and kept her private life private. So was this just an employer trying to impose its personal beliefs on its employees? Of course, this would not be the first time such a thing has happened. Why didn’t the employer just ask her to take down the blog? Would this have not assuaged the employer’s concerns? Seems like more laws need to be passed to keep employers out of the private lives of their employees, so long as their out of office activities don’t affect their work or performance, its none of their business what they do in their personal time. What do you all think?

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As some of you may know, the FMLA or Family Medical Leave Act is leave afforded by many employers to provide up to twelve weeks of leave time in the event that you or one of your family members has a health condition. FMLA leave is available to you if your employer has at least 50 full time employees and if you have worked for the employer at least 1250 hours in the last twelve months. Typically this leave is unpaid unless combined with some type of PTO from your employer.

The FMLA also allows an eligible employee to take up to 12 weeks of leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

The U.S. Department of Labor (DOL) recently issued an Administrative Interpretation (AI) clarifying its opinion that employees are entitled to take Family and Medical Leave Act (FMLA) leave for birth, bonding or to care for the child of a domestic partner or same-sex domestic partner, as well as other children for whom an employee has responsibility for day-to-day care or financial responsibility, even though the employee has no biological or legal relationship with the child.

The AI explains that Congress intended the definition of “son or daughter” to reflect the reality that many children in the Unites States today do not live in traditional “nuclear” families with their biological father and mother. Congress further stated that the definition was intended to be construed to ensure that an employee who has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to the child. Accordingly, Congress included the term “in loco parentis,” which is defined as “in the place of the parent” within the definition of “son or daughter.” The key in determining whether someone is “in loco parentis” is the intention of the person to assume the status of parent toward a child.

The DOL stated that whether an employee stands “in loco parentis” to a child is a fact issue dependent on multiple factors including:

the age of the child;

the degree to which the child is dependent on the person claiming to be standing “in loco parentis”;

the amount of support, if any, provided; and

the extent to which duties commonly associated with parenthood are exercised.

Further, the FMLA regulations define “in loco parentis” as including those with day-to- day responsibilities to care for and financially support a child. The AI interprets this regulation to require either day-to-day responsibilities for care or responsibility for financial support, but states that an employee is not required to show both factors to be considered standing “in loco parentis” for a child.

Whether or not you are entitled to FMLA leave is a fact intensive question so if you are not sure you can try speaking to the U.S. Department of Labor or an employment law attorney. Make sure you receive the leave to which you are entitled.

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For those of you who have been following my blog, you are all aware of some of the types of whistleblower actions that I have blogged about. Not only do many states have their own whistleblower laws, but many federal statutes also have whistleblowing provisions such as with OSHA and the various health care statutes. I have also blogged about qui tam actions where you whistleblow upon an employer when it is ripping off the federal government or state government.

It is important to whistleblow. I have represented employees who reported redating meats at a grocery store meat department and were fired in response. I have represented employees who reported filling premium brand liquor bottles with call brand liquors. I even represented mortgage brokers who complained about shoddy underwriting practices at a major lender before the financial mortgage collapse (he was fired for his complaints). All of these types of actions are either a danger to the public or at a minimum a fraud upon the public and should not be tolerated. And remember, if you do complain about the illegal actions of your employer it is illegal for them to retaliate against you or fire you for your actions.

In fact, had employees whistleblowed about BP and the Deepwater Horizon, maybe this country would not be suffering from this environmental disaster. Currently, several whistleblowers have come forward on other matters of interest related to BP (including another Gulf well) and have said they have suffered retaliation for doing so. Related to Deepwater Horizon: “The rig survivors … said it was always understood that you could get fired if you raised safety concerns that might delay drilling. Some co-workers had been fired for speaking out, they said.”

In his testimony before Congress last week, Tony Hayward said that why no one spoke up would be the important question to be answered by BP’s ongoing investigations. Congressman Henry Waxman in the hearing said operating in deep water is like operating in space. The very nature of oil rig deepwater drilling — and space travel — with their inherent risks, make it imperative that action be taken to ensure that in future, safety indeed comes first. Congressman Waxman was analogizing the BP incident to the Challenger space shuttle explosion.

So if you have concerns about illegal activities engaged in by your employer, speak with an employment law attorney to consider your next course of action.

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As most of you know, there are many employers that don’t provide employees with PTO or paid sick days which makes it very difficult for some to take off in the case of an illness or emergency.

The survey results were released today from a survey conducted by the Public Welfare Foundation and the National Partnership for Women.

The results were compelling:

More than half of workers without paid sick days have gone to work with a contagious illness like the flu;

People without paid sick days are twice as likely to say they have used a hospital emergency room because they were unable to take off of work during their normal work hours;

Nearly twice as many workers without paid sick days have sent a sick child to school or daycare;

Three in four respondents agree that paid sick days are a basic worker’s right; and

86 percent of respondents back a plan that would allow workers to earn a minimum of seven paid sick days per year.

This confirms what we’ve all known to be true: all workers need paid sick days.

Especially in this tough economy, we should all be able to take care of our families — without risking our jobs or our own health.

Urge Congress to Support the Healthy Families Act — federal legislation that allows workers to earn paid sick days, including more than 40 million U.S. workers who don’t have them today.

Click on the following link to send a note to Congress encouraging them to pass the Healthy Families Act.

https://secure2.convio.net/npwf/site/Advocacy?cmd=display&page=UserAction&id=168&JServSessionIdr004=8p4dwzxxv4.app207b

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As you may recall, I have blogged before about the Americans with Disabilities Act. Typically, not only does the act prohibit discrimination against employee with disabilities, but also requires that certain accommodations be made to those with disabilities in restaurants, buildings, etc.

Well now as of yesterday, the U.S. Department of Transportation has set out Federal regulations for persons with disabilities traveling on boats and ships.

The rule applies to vessels operated by public entities, such as public ferry systems, and vessels operated by private entities, such as cruise ships, a release said.

The rule prohibits vessel operators from charging extra for accessibility-related services, requiring passengers to furnish their own attendants or denying passengers access based on disability.

Vessel operators will be required to provide information about the accessibility of their facilities and services and make someone available to address accessibility concerns, the release said.

The rule will ensure fair treatment for people with disabilities who travel by ship or boat, U.S. Secretary of Transportation Ray LaHood said in the release.

U.S. Department of Justice regulations cover vessels operated by private entities not primarily engaged in the business of transporting people, such as fishing charters and dinner cruise boats.

Have not yet been able to find the content of these new regulations online, but will be interested to see what they say. I don’t expect the cruise ship lines to just take this without legal challenge. See, the cruise ship companies such as Carnival have for years been able to get around complying with U.S. Federal laws because each of their ships are flagged in Panama and the Bahamas which means by international law, the laws of those countries apply on their ships, not those of the United States. So it will be interesting to see how the Federal government will require compliance by foreign flagged vessels, but I will keep you posted on further developments on this issue.

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I have previously posted on the topic of employees getting into trouble for things they post on their Facebook, LinkedIn and other social networking sites.  In some cases they have been sued or fired based upon whats on their site.  Seems to me though there is a very simple solution to this problem, make your settings private on your Facebook and other sites and don’t invite your boss to be your friend if you are gonna say bad things about him/her or your job.

By  keeping your information on these sites private, if the employer accesses this information in a underhanded fashion or though a co-worker, the employer is violating in most cases state privacy laws as well as the Federal Stored Communications Act, which prohibits employers from accessing, without the employee’s consent, an employee’s secure website bulletin board or private chat room to search for posts critical of the employer, union or customers.  The Stored Communications Act, 18 U.S.C. § 2701 et seq., (the “SCA”) regulates when an electronic communication service (“ECS”) provider may release the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.”

Under 18 U.S.C. § 2701 , an offense is committed by anyone who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;” or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains…[an] electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1)-(2). However, it does not apply to an “electronic communication [that] is readily accessible to the general public.” 18 U.S.C. § 2511(2)(g).

Court have generally held Facebook, MySpace and other social networking sites to be subject to the SCA where the user has designated their information as private.  So keep your information private, don’t invite your employer to review the information and at least your back will be covered in the event your employer surreptitiously gains access to the information.  One exception would be if you consented to your employer’s access to such information so be on the look out for your employer trying to get you to sign a document that would allow it to access your private online information.

If your employer improperly accesses your private information, consult with an attorney about your possible options.

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As you my recall, I have blogged on occasions about whether employees are entitled to be paid overtime. Under the Federal Law that governs this issue, the Fair Labor Standards Act (FLSA), many employees are considered “exempt” from overtime based upon different Federal regulations. One of the federal exemptions applies to Outside Sales Employees.

According to the U.S. Department of Labor and to be exempt from overtime as an Outside Sales Employee, The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and the employee must be customarily and regularly engaged away from the employer’s place or places of business. The U.S. Department of Labor further defines these terms in their Fact Sheet 17F.

Just recently, however, a federal court judge has ruled Abbott Lab reps are not exempt from overtime provisions of the Fair Labor Standards Act and, therefore, should be paid overtime. The ruling, which came in the form of a summary judgment and is now headed to trial to determine damages for about 80 Abbott rep.

Drugmakers argue their sales reps are, indeed, outside salespeople who close sales because the primary customer is the physician. But recently, the US Department of Labor added an unexpected twist to the debate by filing an amicus brief with a federal appeals court contending that a lower court was wrong to toss their lawsuit.
In the latest ruling, US District Court Judge Ruben Castillo of the Northern District Court of Illinois, decided the Labor Department’s “interpretation is both persuasive and consistent with our analysis of the regulations (which) dictate that if an employee does not make any sales or obtain any sales orders or contracts, then the outside sales exemption does not apply.” He also rejected Abbott’s argument that reps are exempt from overtime as administrative employees. To qualify for the exemption, employees must exercise discretion and independent judgment “with respect to matters of significance.” The DOL maintains reps don’t have that kind of independence since they’re given lists of docs to visit and must present scripted messages.

I have attached a copy of the Judge’s recent decision.Decision of Court Against Abbot Labs

So if you are a sales person or pharmaceutical rep who sells outside of the office, but is not paid overtime, consult with an employment lawyer to discuss what you may be entitled to be paid.

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These days with credit card and mortgage defaults on the rise, and the economy in the toilet , if some of you don’t pay attention to lawsuits being filed against you, you could wind up with the unpleasant surprise of you employer telling you that your paycheck is being garnished.  If a judgment has been entered against you and your paycheck is being garnished it may be too late to consult with an attorney to get the situation undone, but try anyway.  If that fails, you need to be aware of the federal laws governing wage garnishments.

A wage garnishment is a involuntary taking of monies owed by your employer to you, if you owe money to third parties such as a mortgage company, credit card company, the IRS, the state or perhaps you owe money for alimony or child support.

The Federal law that applies to these wage garnishments in Title III of the Consumer Credit Protection Act.    The law protects everyone receiving personal earnings, i.e., wages, salaries, commissions, bonuses, or other income—including earnings from a pension or retirement program. Tips are generally not considered earnings for the purposes of the wage garnishment law.

The amount of pay subject to garnishment is based on an employee’s “disposable earnings,” which is the amount left after legally required deductions are made. Examples of such deductions include federal, state, and local taxes, the employee’s share of State Unemployment Insurance and Social Security.

The law sets the maximum amount that may be garnished in any workweek or pay period, regardless of the number of garnishment orders received by the employer. For ordinary garnishments, the weekly amount may not exceed the lesser of two figures: 25 percent of the employee’s disposable earnings, or the amount by which an employee’s disposable earnings are greater than 30 times the federal minimum wage (currently $7.25 an hour).

There are exceptions to the rule for garnishment of amounts owed for taxes, child support and alimony.

Keep in mind that your employer is not allowed to fire you when one of these garnishments is received, although it is not clear whether the employer may fire you if you have continuous wage garnishments from third parties.

For great examples of how much can be garnished check out the U.S. Department of Labor’s Fact Sheet #30 at http://www.dol.gov/whd/regs/compliance/whdfs30.pdf

Keep in mind also that each state might also have its own laws protecting you from wage garnishments. For instance, in Florida if you are a head of household and support your family with those wages, you are entitled to additional protections.

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This may seem like an obvious point, but you all need to be aware that the federal and state sexual harassment laws apply to minors in the workplace just as much as they apply to adults. So, if your sixteen year old working at a fast food location is being sexually harassed, the child or their parent needs to make a report with Human Resources or go to the EEOC. Parents whose children are in the workplace also need to let their kids know that this kind of conduct does not need to be tolerated.

A perfect example is the latest settlement that Starbucks reached in a case out in California. Starbucks has recently agreed to settle a harassment lawsuit, in which a former barista alleged she was pressed with incessant sexual demands from her manager at only 16 years of age. Kati Moore was only 16-years-old when employed as a barista at a California-based Starbucks coffee shop. Moore, contended Tim Horton, her 24-year-old supervisor, would send her inappropriate text messages on a daily basis. For instance, one of hundreds of unruly messages read, “I’d like to f— tomorrow.” Moore accused Starbucks of failing to protect her from the daily workplace harassment. She also asserted her other Starbucks supervisors were conscious of the illicit activity, yet carelessly kept quiet about the matter.

Moore’s case was even featured in a “20/20” investigation concerning teenage victims of workplace sexual harassment. Dr. Susan Strauss, a sexual harassment expert interviewed during the report, noted that such workplace issues are not unusual. The problems can be especially common in fast food restaurants where many teens become employed for the first time. “They’re vulnerable, they’re young, they’re new to the workforce,” Strauss said. According to a study conducted in Maine, one in three high school students reported experiencing unwarranted sexual advances in the workplace.

If your teen expresses concerns to you about whats going on in his/her workplace speak to an employment law attorney to make sure they are not taken advantage of.

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Yes thats right gentle readers….Bank of America can now not only be blamed for taking bailout money and not giving any benefit to consumers from it or lending their part to the mortgage crisis, now it appears, at least based upon the allegations of a pending lawsuit, that they also don’t pay their workers in accordance with the Fair Labor Standards Act.  Every time I read this type of stuff, it makes my blood boil: they mess up the economy, get paid by us to fix their own mistakes, all the while cheating consumers and employees.

The lawsuit filed Friday in federal court in Kansas City, Kansas, consolidates 12 lawsuits filed on behalf of employees in California, Florida, Kansas, Texas and Washington.   It seeks nationwide class-action status on behalf of employees at retail branches and call centers over the last three years.

According to the 44-page complaint, the largest U.S. bank by assets requires employees to work in excess of eight hours per day or 40 hours per week, yet fails to pay them both for overtime and for all straight time worked.

The complaint also accuses the bank of requiring employees to work during unpaid breaks, failing to provide meal and rest breaks, and failing to timely pay terminated employees for earned wages and accrued vacation time.

Yes thats right all of these things that I have blogged about that an employer SHOULD NOT BE DOING, apparently Bank of America is guilty of doing.  Of course, just because they were sued does not mean they did anything wrong, I guess we will see how that lawsuit progresses.

So just a reminder, if your employer is making you work in excess of forty hours a week, without overtime pay, or making you work during lunches or not paying you for accrued vacation upon termination, speak to the U.S. Department of Labor or an employment law attorney.  As employees, don’t let your employers take advantage of you.

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