Archive for July, 2010
So once again, not really on topic for employment law, but it does fall within the discrimination context so I’m blogging about it today. If you’re starting a family and would like to buy a house to raise your kids in, there’s something you should know. Women who are pregnant and plan to stay home to take care of the baby may not qualify for a mortgage loan. Despite the Pregnancy Discrimination Act, mortgage lenders say they are denying mortgages to expectant couples because they must comply with strict new standards for verifying income.
Based upon new guidelines passed by Fannie Mae and Freddie Mac, lenders are now required to recheck a borrowers income right before the loan closes, not just just when the contract is signed. In addition, the lender must also document that the lenders income is likely to continue for at least three years.
Mortgage lending standards interpret maternity leave as short term disability insurance. Because the disability payments will not continue for three years, Fannie and Freddie mortgage lenders will not count maternity leave as qualifying income. These mortgage lenders will require the new mother to reapply for the mortgage once she returns to work.
Mortgage lenders say they are not discriminating against pregnancy but against income. The Equal Credit Opportunity Act prohibits lenders from discriminating against gender and marital status. The Equal Credit Opportunity Act also bars lenders from asking about your plans for having or raising children. However, lenders can ask questions about expenses related to your dependents. The federal government moved to make pregnancy discrimination illegal in 1978. The Pregnancy Discrimination Act declares that discrimination due to pregnancy, childbirth or related medical conditions is unlawful sex discrimination. But the Pregnancy Discrimination Act only applies to employment, not borrowing.
So the question is whether this pregnancy mortgage discrimination can be brought under the Equal Credit Opportunity Act claiming gender discrimination or a violation of some other federal or state law. Would love to test this policy out in the courts. Someone bring me a test case please?
So this posting is a little off topic, but interesting nonetheless. It is a new lawsuit that alleges sexual harassment, but is not in a employee context.
A 14 year-old Chicago boy has accused Southwest Airlines of ignoring his complaints about a seatmate’s sexual harassment during a 2008 flight to Orlando. An older woman sitting next to the boy allegedly repeatedly offered the boy drugs and made inappropriate sexual advances toward him. The boy allegedly asked flight attendants to switch seats because of the cougar attack, but according to a lawsuit, they ignored him. The boy’s father is suing for $50,000 in damages.
Clearly since he was not an employee of Southwest, the employment discrimination laws would not apply so even through this is being called sexual harassment, the claims might be more in the nature of negligence or battery. In addition, I wonder if the flight took place in 2008, why they are only getting around to bringing a lawsuit two years later? Just remember all my readers out there, if you have a claim, don’t wait to bring it. Your claim appears to lack merit when you wait for years to bring it. In addition you face the problem of witnesses disappearing and memories getting vaguer.
So if you have claims that you believe are sexual harassment, but maybe not in the employer/employee context, don’t fret, there may be other legal claims you can bring for your claim.
On a final note, I wonder whether the 14 year olds friends were jealous?
For those of you who are under the age of eighteen or or have children under eighteen, you all should be aware of the changes in child labor regulations going into effect next week. The Department of Labor states that these are the most far reaching changes in child labor laws in thirty years.
The Fair Labor Standards Act (FLSA) sets wage, hours worked, and safety requirements for minors (individuals under age 18) working in jobs covered by the statute. The rules vary depending upon the particular age of the minor and the particular job involved. As a general rule, the FLSA sets 14 years of age as the minimum age for employment, and limits the number of hours worked by minors under the age of 16.
Also, the FLSA generally prohibits the employment of a minor in work declared hazardous by the Secretary of Labor (for example, work involving excavation, driving, and the operation of many types of power-driven equipment). The FLSA contains a number of requirements that apply only to particular types of jobs (for example, agricultural work or the operation of motor vehicles) and many exceptions to the general rules (for example, work by a minor for his or her parents). Each state also has its own laws relating to employment, including the employment of minors. If state law and the FLSA overlap, the law which is more protective of the minor will apply.
Under the Fair Labor Standards Act (FLSA), youths 14 and 15 years old may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs under certain conditions.
Permissible work hours for 14- and 15-year-olds are:
3 hours on a school day;
18 hours in a school week;
8 hours on a non-school day;
40 hours in a non-school week; and
between 7 a.m. and 7 p.m., except from June 1 through Labor Day, when nighttime work hours are extended to 9 p.m.
So what has been changed in the new Rule?
Well the rule now strengthens child labor laws to protect against workplace hazards. Although these restrictions are probably not normally coming into application, some examples of new prohibitions impacting the employment of youth under the age of 18 years include:
Working at poultry slaughtering and packaging plants;
Riding on a forklift as a passenger;
Working in forest fire fighting, forestry services, and timber tract management;
Operating certain power-driven hoists and work assist vehicles;
Operating balers and compacters designed or used for non-paper products; and
Operating power-driven chain saws, wood chippers, reciprocating saws, and abrasive cutting discs.
In addition, until recently children aged 14 and 15 were required to only work in retail, food service and gasoline industries. The rule now expands youth workplace opportunities that have been judged to be safe for young workers. Examples include:
By removing a 40-year-old provision that generally limits the employment of 14- and 15-year-olds to jobs in retail, food service, and gasoline service establishments, the rule opens up safe and positive employment opportunities in industries such as advertising, banking, and information technology. The Final Rule allows 14- and 15-year-olds to perform work of an intellectual or artistic nature in establishments that were previously prohibited. Such work includes computer programming, drawing, and teaching. The Final Rule also incorporates into the regulations two long standing Departmental enforcement positions that permit 16- and 17-year-olds to operate, under specified conditions, power-driven pizza-dough rollers and portable, countertop food mixers.
If you believe you or a child you know is being worked in violation of these rules, you should contact the U.S. Department of Labor or speak to a qualified employment law attorney.
As I have blogged about in the past, many employees come to me to complain about what bad bosses they have or what jerks their bosses are and frankly, an employer being a jerk is not legally actionable under any state or federal law that I am aware of. But, now employees of the world, you may finally have your ability to take action, even if not in court, against your nasty boss. The ebosswatch.com’s motto is “nobody should have to work with a jerk.”
The site says that eBossWatch was launched in June 2007 to help people avoid hostile work environments and workplace bullying. Because it is extremely difficult during the job interview process to discover the true atmosphere at a potential employer and the true nature of a potential manager, eBossWatch is a critical job search resource for people who are considering a career change.
BossWatch enables you to anonymously rate your boss using a respectable and focused evaluation form so that job seekers can search for bosses at potential workplaces and can receive reports detailing the ratings that each boss has received.
You can tell the world on the internet if your employer is great or horrible. It also has a section called the National Sexual Harassment database where you can post complaints of sexual harassment by an employer or boss so that someone who is considering employment with that boss can look up that information. Its akin to the national sexual predator databases out there.
EbossWatch says that “The eBossWatch National Sexual Harassment Registry was inspired by the FBI’s National Sex Offender Registry, which tracks and provides information about registered sex offenders.
The mission of our Sexual Harassment Registry is to help people avoid sexual harassers and to help put an end to sexual harassment by sending a strong message to those intending to harass their employees or coworkers that they will be publicly held accountable and will suffer serious consequences for their abusive actions.”
The Sexual Harassment Registry keeps track of not only those complaints that have gone to trial, but those that complaints were filed on and even those where no actions were taken by employee since they realize that only a small percentage of these complaints go to trial.
So those of you who have great bosses, tell the world. Those of you who have horrible bosses tell the world. And most importantly, if you have been the subject of sexual harassment, tell the world.
The name of the site is www.ebosswatch.com. Check it out.
I have blogged on many occasions about the FLSA or Fair Labor Standards Act which provides the federal laws and regulations for when employees must be paid regular and overtime and whether they should be paid on an hourly or salary basis.
One of the issues that regularly comes up is whether travel time for my employer is time for which I should be getting paid. If you are a non exempt employee (and remember just because your employer says you are does not necessarily make it so (see my prior bloggings)) and getting paid hourly, you are entitled to be paid for all hours that are part of your “hours of work” but not merely commuting.
So what is considered commuting under the FLSA:
As amended by the Portal-to-Portal Act, the FLSA excludes ordinary commuting time, or “traveling to and from the actual place of performance of the principal activity” of employment, from compensation. In contrast, and like on-call time, work completed during a commute that is integral and indispensable to a principal activity of employment is compensable. Whether an employee’s time is considered compensable work depends on whether it is spent predominantly for the benefit of the employer (“predominant benefit test”).
For FLSA-covered employees, normal commuting time from home to work and from work to home is not hours of work. Similarly, for FLSA-exempt employees, normal commuting time from home to work and from work to home is not hours of work. However, commuting time may be hours of work to the extent that the employee is officially ordered or approved to perform substantial work while commuting.
Normal “home-to-work/work-to-home” commuting includes travel between an employee’s home and a temporary duty location within the limits of the employee’s official duty station. For an employee assigned to a temporary duty station overnight, normal “home-to-work/work-to-home” commuting also includes travel between the employee’s temporary place of lodging and a work site within the limits of the temporary duty station.
Imposing even minimal requirements on employees—such as filling up the company car at a particular gas station or stopping at the post office on the drive home from work—can turn normal commuting time into compensable time under the FLSA. That’s true even if the company-mandated “pit stop” doesn’t lengthen employees’ commute.
For instance in one case field engineers for a Florida county needed to drive work trucks to job sites. So, they’d first drive their own cars to the county parking garage and pick up the trucks. The county didn’t pay engineers for their time driving the county truck to the first work site of the day, reasoning that it was unpaid “commuting time.” The engineers disagreed and sued under the FLSA for back wages.
The 11th Circuit sided with the engineers, concluding that making them stop at the garage at the beginning and end of the day was “an inconvenient detour for the employees who, at the end of the workday, could not drive directly home.” That inconvenience made it paid time rather than commuting time. (Burton v. Hillsborough County, No. 10247, 11th Cir., 2006).
So don’t let your employer make you Grumpy by making you work hours that you are not getting paid for and don’t be Bashful about reporting your employer’s violations of the FLSA to the U.S. Department of Labor or an employment law attorney.
One of the areas that my law firm also handles are civil rights violations including false arrests. These case recently came to my attention. Its a class action lawsuit filed today by the Southern Poverty Law Center and the Juvenile Justice Project of Louisiana.
The suit was filed on behalf of a first-grade student who was brutally handcuffed and shackled to a chair by an armed security officer after he argued with another youth over a seat in the lunchroom at Sarah T. Reed Elementary School. The school is part of the Louisiana Recovery School District which has schools with children who were victims of Hurricane Katrina. The lawsuit alleges violations of state and federal laws.
The boy, known as J.W. in the court filing, was just 6 years old when the incident occurred on May 6. He had previously been handcuffed and shackled for a similar incident. School officials told the boy’s father that the arrest and seizure was required under school rules.
The complaint alleges that the school principal, one of several named defendants, “provided a clear directive to all employees … that students were to be arrested and handcuffed if they failed to comply with school rules.” The complaint also alleges that RSD officials – including Superintendent Paul Vallas and Director of Security Eddie Compass – allowed the enforcement of this policy at Reed Elementary and were deliberately indifferent to the rights of the students who attend school there.
While I admit that such actions are sometimes tempting with my own kids….certainly completely inappropriate in public school. In addition, haven’t these kids whose families were the victims of Hurricane Katrina been through enough?
If you or someone you know has had your civil rights violated by police or any other governmental entity, consult with an experienced civil rights lawyer.
While this is a little off topic for this blog, I thought I would talk a little today about housing discrimination and what you can do if you are a victim of it.
Housing discrimination based on your race, color, national origin, religion, sex, family status, or disability is illegal by federal law. If you have been trying to buy or rent a home or apartment and you believe your rights have been violated, you can file a fair housing complaint.
If you are trying to rent housing, you cannot be discriminated against in the following ways:
Refuse to rent or sell housing
Refuse to negotiate for housing
Make housing unavailable
Deny a dwelling
Set different terms, conditions or privileges for sale or rental of a dwelling
Provide different housing services or facilities
Falsely deny that housing is available for inspection, sale, or rental
For profit, persuade owners to sell or rent (blockbusting) or
Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.
If you are trying to buy a housing, you cannot be discriminated against in the following ways:
Refuse to make a mortgage loan
Refuse to provide information regarding loans
Impose different terms or conditions on a loan, such as different interest rates, points, or fees
Discriminate in appraising property
Refuse to purchase a loan or
Set different terms or conditions for purchasing a loan
Individuals who believe that they have been victims of an illegal housing practice may file a complaint with the Department of Housing and Urban Development [HUD] or file their own lawsuit in federal or state court. You must file the complaint with HUD within one year of the incident you believe to be housing discrimination. If you choose to file your own lawsuit in federal or state court, the Act requires that you do so within two years of the incident.
There are also many state’s that have their own housing discrimination laws so you may want to check with a discrimination lawyer to determine whether it is most beneficial to make a claim under a state or federal law.
You may recall I have blogged on many occasions about the enforceability of non-compete agreements. In many cases, depending upon the state you are employed in, non-competes are not enforceable unless the employer has a legitimate business interest, such as a trade secret, that they are trying to protect by using the non-compete. You may recall that I previously had given examples of the KFC secret ingredient or the secret formula for Pepsi as the types of things that might be trade secrets that would justify protection under a non-compete agreement. It would not need to be something necessarily as famous as one of those examples, but it needs to be something more than information available from publicly available resources. In my experience, most employers do not have legitimate interests they are trying to protect by non-competes, they just want to stifle competition. That is not legal.
Well here is one more example of a legitimate trade secret where an employee was kept from working for a competitor due to his knowledge of trade secrets. Believe it or not, the owner of Thomas English Muffins a company called Bimbo Bakeries USA (Yes thats right Bimbo Bakeries) received a preliminary injunction against its former Vice President of Operations for California, Chris Botticella, preventing him from working for its competitor, Hostess Brands. The reason: Botticella was privy to nearly all of Bimbo’s trade secrets.
What’s a trade secret? Most states have codified the definition of a trade secret, but the basic ingredients are generally the same. A trade secret is defined as information, including a formula…method, technique or process that 1) derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use 2) is subject to efforts…to maintain secrecy. In a nutshell, a trade secret is information you don’t want a third party to know because it is profitable and, therefore, you try really hard to keep it confidential.
So Bimbo’s former employee went to work for a competitor, Hostess bakery. The maker of those so delicious Twinkies and cupcakes. The trial court granted a temporary injunction against this former employee keeping him from working for Hostess and finding that he had access to Bimbo’s trade secrets including: processes, pricing strategies and those formulas used to give Thomas English Muffins those nooks and crannies. The trial judge also found that Bimbo’s former employee, right after he accepted employment with Hostess, downloaded confidential information onto thumb drives.
So Bimbo’s former employee is prevented from working now until further rulings from this Court on this issue.
Well now I can give as examples of trade secrets, Pepsi, KFC and Bimbo Bakeries. But again, if you have a non-compete issue, speak with an employment attorney to review the document and advise you of your rights.
Hope all of my readers had a great Fourth of July Holiday. And what is the Fourth of July holiday without the world famous Nathan’s hot dog eating championship. Yes this year’s winner Joey Chestnut ate a paltry 54 hot dogs and buns to win the competition. However, the six time champion, Kobayahsi, was banned from the event.
Apparently Kobayashi, refused to sign a non-compete agreement with Major League Eating (MLE) that would prevent him from competing in non MLE sanctioned events. So MLE refused to allow the six time champ to compete in this years competition and what did Kobayashi do? What every other employee in dispute over a non-compete agreement would do, went to the event, staged a protest and got arrested. Go Kobayashi.
No I would not recommend that you get into a dispute with your employer over a non-compete agreement that finds yourself in jail as a result. However, you should, as I’m sure Kobayashi did, have an employment law attorney review its terms and negotiate them, if at all possible, before signing them.
If you find yourself looking for employment and had previously signed a non-compete agreement, similarly, have an employment law attorney review it, it may very well be unenforceable.
For all of you who were or are mortgage loan officers and have not been paying attention, the United States Department of Labor (“DOL”), Wage and Hour Division, recently published an Administrator’s Interpretation that takes the position that mortgage loan officers with certain “typical” job duties are not subject to the administrative employee exemption of the Fair Labor Standards Act. The DOL reasoned that mortgage loan officers’ primary duties are to make sales, and these are not administrative functions as defined by federal regulations. As a result, mortgage loan officers are not exempt from the FLSA’s minimum wage and overtime compensation rules under the administrative employee exemption.
The DOL based its new interpretation on the statutory and regulatory framework, as well as on a thorough review and analysis of recent case law. With this determination, the DOL reverses its previously held position and explicitly withdraws Opinion Letters from February 2001 and September 2006, which stated that mortgage loan officers could be considered exempt administrative employees.
The DOL noted that a mortgage loan officer’s typical duties include contacting and gathering financial information from customers, entering data into computer programs to determine which loan products may be offered to a customer, assessing the loan products identified, and trying to match the customer’s needs with one of the company’s products. Those duties, combined with other factors, led the DOL to conclude that mortgage loan officers’ primary duty is to make sales, rather than administrative functions.
In reaching its conclusion, the DOL also relied on the following factors:
In lawsuits brought by mortgage loan officers, mortgage companies have typically conceded that the officers’ primary duty is sales;
Mortgage loan officers are usually paid commissions based on sales, and their performance is evaluated based on sales volume;
The DOL could not find any reported case holding that a mortgage loan officer, whether working inside or outside, had a primary duty other than sales;
While administrative interpretations of the Department of Labor are not law per se, they are given great weight in courts of law.
So if you are currently a mortgage loan officer or have been one in the past three years, you should speak to an employment law attorney to determine whether you are owed unpaid overtime for the time that you worked for them.