Archive for August, 2010

More and more these days, employees want desparately to leave their employment, but in some cases they are afraid to quit because they don’t think they will then qualify for unemployment benefits. While it is true that in most states, if you quit your job you do not remain eligible for unemployment benefits, there are circumstances where if you quit you can still recover those benefits.

Generally, when someone quits their job, they are not entitled to unemployment compensation benefits. However, if the person quits their job for GOOD CAUSE ATTRIBUTABLE TO THE EMPLOYER, then unemployment compensation benefits will be paid to the employee. Good cause attributable to the employer means that the reason you quit your job was because of something the employer did or failed to do which made continuing to work for the employer unreasonable.

Some Examples Might Include:

Employer significantly changes your work conditions such that a reasonable person would elect to leave the employment rather than continue under those conditions. These conditions include decrease in pay and change in shift from day to night;

You are experiencing harassment or discrimination, you have repeatedly complained to the employer about the situation without getting any relief;

The working conditions are so harsh, you are required to quit for health reasons;

Under Florida Law, if you are physically unable to continue in the work (even though it is not the employer’s fault) that is good cause to quit. You will need medical evidence, such as a doctor’s note, to support your case and you will need to give notice to the employer of the problem and allow him to try to give you work you can still do before quitting.

These are just some examples, but they are not exhaustive. So if you quit your job for what you believe is good cause, apply for unemployment benefits. If you are rejected, make sure to file all necessary appeals within the deadlines provided by the notices received from the unemployment office. If you unsure of what to do or how to handle the matter, contact an employment law attorney.

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As many of you know from my prior postings, the Fair Labor Standards Act (FLSA) requires all non-exempt hourly employees to be paid for all time worked on an hourly basis and for all overtime worked at time and a half. This includes all work off the clock. Just because your employer tells you to work before punching in and or after punching out does not make it right or legal under the FLSA. In addition, if you are forced to work during your lunch break, you are required to be paid for that time and if it puts you over forty hours per week, then you are entitled to overtime.

Well apparently, someone in Walt Disney World’s vast legal department has not been carefully watching its cast and its supervisors. Since it agreed to pay dozens of clerks $433,000 in back pay for work performed before and after their normal shifts, according to Business Week magazine.

A report said Disney will pay the money to 69 employees of its food and beverage department in its theme park after the company was determined to have violated the Fair Labor Standards Act.

Their work was also performed during meal times, the magazine reported, and managers were not guiding employees according to the Fair Labor Standards Act.

So don’t work without getting paid for it. If you suspect your employer is not paying you correctly get it checked out by the U.S. Department of Labor, who enforces the FLSA, or an employment attorney that handles FLSA cases.

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I have blogged on many occasions about the Federal Fair Labor Standards Act (FLSA). This law requires non-exempt employees to be paid at their regular hourly rate for all hours worked up to forty hours per week and to be paid overtime for each hour worked in excess of forty hours each week. There are of course many exceptions to this general rule. In addition, if you are a salaried and exempt employee you get paid the same salary regardless of the number of hours you work. Well a new case that has been filed adresses the isssue of whether working on your blackberry or responding to e-mails for your employer during non working hours is compensable.

A police sergeant is suing the city of Chicago for allegedly violating Fair Labor Standards Act (FLSA) regulations by not compensating for time spent on the employer-issued BlackBerry during off-hours. The case is an opt-in collective action, allowing for other “similarly situated employees” to join the suit. According to the law suit, the sergeant and the Collective Class were allegedly required to be on call and respond to communications outside of their normal working hours. The suit says that the employees were not compensated for the time spent on their employer-issued communication devices during off-hours, including overtime pay.

The sergeant and the Collective Class were all non-exempt employees and compensated on an hourly basis. They are suing for unpaid wages and overtime pay, as well as interest and attorney’s fees.

“Exempt employees, they make the same salaries no matter how many hours they work during a week, so using a BlackBerry from home at night is not an overtime issue for them. But when you’re dealing with non-exempt employees, they have to be paid for all the time they work,” explains Susan Prince, a legal editor for Business and Legal Resources (BLR) in an interview with NPR.

So if you are an hourly employee and are expected to work on e-mails or blackberry’s during your off work hours, keep track of your time and speak to your employer about getting paid for this time. If the employer refuses you might want to speak to the U.S. Department of Labor or an employment law attorney that handles FLSA claims.

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In the current job markplace, it has become increasing difficult to get a job. It is even more difficult for those with criminal backgrounds and or questionable credit or prior workers compensation injuries or claims. However, you should keep in mind that, if you are denied a job based upon any of these critera, you may have a legal basis to complain.

The Equal Employment Opportunity Commission has been cracking down on efforts to disqualify potential hires with criminal records or bad credit history, arguing that the practice can be tantamount to discrimination, as such applicants are disproportionately black or Latino. Justice Department statistics show that 38 percent of the U.S. prison population is black, compared with about 12 percent of the general population. In 2008, African Americans were about six times more likely to be incarcerated than whites. The incarceration rate for Latinos was 2.3 times higher than whites.

A blanket refusal to hire someone with a criminal record could run afoul of federal employment law, though. If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.

The EEOC indicated its disapproval of such practices last fall, when it it filed a class-action discrimination lawsuit against Dallas-based Freeman Companies, an events planning firm. The EEOC alleged that Freeman Companies used credit history and criminal records to discriminate against against blacks, Hispanics and males. Freeman has denied the charges, according to the AP.

You should also keep in mind that under Florida law and most other state laws, it is illegal to refuse to hire someone based upon a workers compensation claim or injury with a prior employer.

If a potential employer does perform a credit or criminal history check it must be done in accordance with the Fair Credit Reporting Act and you must have given permission to do so. If your work state does not have a law that prohibits or otherwise regulates an employment credit check on you (you should verify if your state has such a law), then the employment provisions in the Federal Fair Credit Reporting Act (FCRA) rule. The FCRA provisions regulate how employers obtain and use your credit report; for example, generally:

An employer must first inform you that someone will be conducting a credit check on you and get your permission in writing (unless you work in the trucking industry, in which case your permission might not be required). Technically, you may refuse to allow it; but, in reality, you might not keep your job or land a new one if you do that.

Before an employer may take an adverse action against you (e.g., eliminate you as a job candidate or fire you) based solely on a credit check, the employer must give you a “pre-adverse action disclosure” that consists of a copy of your credit report and a written summary of your rights under the Fair Credit Reporting Act.
After an employer has taken adverse action against you, the employer must then provide you with an “adverse action notice” and give you the contact information of the agency that provided your credit report, so that you may dispute inaccurate information.

An employer must keep the results of your credit check confidential and can’t store any information about it in your personnel file.

If you believe you have been wrongfully turned down for a job due to your criminal or credit history speak to an employment law attorney to evaluate your situation.

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OK so yes this is a generally an employee rights blog, but I am also a self-affirmed Gator hator and Miami Hurricane fan, so I clearly have no sympathy for this arrogant Gator fan, but the whole situation does raise some interesting legal issues to address on this blog.

For those of you who have not been following the story, Renee Gork announced on Twitter that she had been fired by KAKS, a northwest Arkansas radio station that calls itself Hog Sports Radio. Gork had worn a Gator hat Saturday to a news conference with Arkansas Razorbacks football coach Bobby Petrino.

Petrino, whose team lost to the Gators last season 23-20 at Florida, commented on Gork’s hat after answering a question she asked. “And that will be the last question I answer with that hat on,” Petrino said.

Gork, a Florida graduate, said she grabbed the hat without thinking Saturday because it was raining outside. She also said she sent a letter of apology to the university and Petrino.

“Was hoping to publicly apologize to coach Petrino and UA fans on the show today … but I won’t get that chance,” Gork wrote on KAKS’ Twitter account. “I’ve been fired.”

So the question I have been posed is does Ms. Gork have a claim for wrongful termination. Well, my initial gut instinct would be “no.” However, I would first want to take a look at her contract, if she even had a written contract. Based upon the language of the contract, perhaps she could argue that her employer breached her employment contract with her. In some cases it would seem to me that radio and entertainment personalities are hired to “ruffle feathers” and to fire them for doing so might be considered a breach of contract. Would someone fire Howard Stern or Rush Limbaugh for ruffling feathers? Likely not. Of course, I am not saying that Ms. Gork is a Stern or Limbaugh personality, but maybe she was hired to be one of the radio show bad girls. If that was the case maybe the employer breached its contract with when they fired her for wearing her Gators hat to an Arkansas press conference.

Without a contract, unless there is a special Arkansas statute, I dont believe she would have any legal basis to object to the termination. If you do stupid things at work, you run the risk of being fired for it. If you wear inappropriate attire to work, you run the risk of being fired for it. In this case Ms. Gork wore clearly inappropriate attire to work and AND was stupid and was fired for it. Don’t get me wrong, was the whole thing petty and silly if she was otherwise a good employee, YES. However, it does not mean that her employer was not in its rights to terminate her.

What do you all think of this issue?

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Steven Slater, a Jet Blue flight attendant told his employer to take his job n shove it in style recently.

As JetBlue Flight 1052 from Pittsburgh was taxiing to a gate at New York’s John F. Kennedy International Airport, Slater tired to assist a woman who was struggling with her carry-on luggage. An argument that evidently began in Pittsburgh erupted again in New York, according to Slater’s lawyer. Slater believes the middle-aged woman “maliciously” hit him on his head with her luggage, Turman said.

Its alleged that Slater demanded an apology from the passenger, but the passenger refused. The two argued before the passenger told Slater to “f— off”, the official said. Slater then got on the plane’s PA system and directed that same obscenity at all the passengers and added that he especially meant it for the man who refused to apologize.

In a written statement to the Queens County District Attorney’s Office, Slater said, “I lost patience after a female passenger had an argument with another passenger and then opened the bin door hitting me on the head without apologizing, I got on the microphone and said, ‘To those of you [who] have shown dignity and respect these last twenty years, thanks for a great ride.’ I accessed the porthole pulled the door handle inflating the slide, took my baggage and slid down the slide and left.” Slater, allegedly prior to sliding down the escape shute took himself several beers from the aircraft galley.

The attendant then ran from the tarmac into the terminal. He made his way to his car and drove to his residence in Belle Harbor, Queens. Authorities picked the flight attendant up at his home on Beach 128th Street Monday afternoon and brought him to the Port Authority Police station at JFK airport for questioning. The official said that Slater was calm when arrested and remained calm throughout his interrogation and the booking process. He was charged with reckless endangerment and criminal mischief. He has since been released on bail.

Police say that Slater could have killed or severely injured somebody on the ground with his escape. The emergency slide deploys out of the aircraft with a force of 3,000 psi. The typical car tire pressure is around 30 to 35 psi.

The cost to replace the chute, according to the police report, is more than $25,000. Additionally, JetBlue could lose tens of thousands of dollars more, while the jet out of service for repairs.

So is this guy a folk hero for doing what most employees only dream of doing? What do you think?

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In the past on this blog, I have not only addressed sexual harassment in the workplace, but have also discussed housing discrimination. Well this post, addresses a little of both issues.

A federal jury in Detroit last week returned a $115,000 verdict against an Ypsilanti, Mich., man for sexually harassing female tenants in his capacity as a property manager, the Justice Department announced last week. The jury also found the property owner and his company liable for the illegal harassment.

The lawsuit, filed in U.S. District Court in Detroit, alleged that Glenn Johnson subjected female tenants to discrimination on the basis of sex, including severe, pervasive and unwelcome sexual harassment, in violation of the federal Fair Housing Act. The complaint also alleged that Ronnie Peterson and First Pitch Properties LLC, the owners of the properties, are liable for Johnson’s discriminatory conduct.

Over the course of a six day trial, the United States presented evidence that Glenn Johnson subjected six women to severe and pervasive sexual harassment, ranging from unwelcome sexual comments and sexual advances, to requiring sexual favors in exchange for their tenancy. One woman testified that Johnson refused to give her keys to her apartment until she agreed to have sex with him. Another woman testified that she had sex with Johnson at least 20 times because he threatened that the owner would evict her if she did not.

The United States also presented evidence that Washtenaw County Commissioner Ronnie Peterson, who owned the properties, knew that Johnson was sexually harassing tenants but did nothing to stop it. One woman testified that she complained in person to Peterson about Johnson’s conduct yet Johnson continued to handle properties for Peterson for nearly two more years.

“Today’s verdict sends a message to landlords and rental agents that they cannot abuse their positions and sexually harass tenants,” said U.S. Attorney for the Eastern District of Michigan Barbara L. McQuade. “Women should be safe from sexual harassment in their own homes.”

If you believe you have been the victim of sexual harassment or housing discrimination, speak to an attorney who is experienced with these areas of law.

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While most employees do not have employment contracts and are employees at will, for those of you who have employment contracts, it is important to have them reviewed and negotiated prior to your employment and not once a dispute arises when it is sometimes too late to address the situation. Even where it can be addressed through litigation, you can be talking about quite a bit of time and money that could have been avoided with a little proactive contract drafting.

One recent example of the types of litigation that can evolve over employment contracts is the ongoing dispute between the inventor of the Bratz dolls and his former employer Mattell.

In Mattel, Inc. v. MGA Entertainment, Inc., the Ninth Circuit Court of Appeals recently vacated the trial court’s judgment awarding Mattel ownership rights to the Bratz brand of dolls. This decision was reached, in part, on a finding that the trial court erred in ruling that the employment agreement between Mattel and former employee Carter Bryant, assigned Bryant’s “ideas” to Mattel.

The dispute between Mattel and MGA arose out of Bryant pitching his idea for Bratz to MGA while he was still employed by Mattel. Once Mattel discovered that Bryant originally conceived the Bratz idea while employed by Mattel, Mattel filed suit against MGA and Bryant alleging theories of copyright infringement and breach of the employment agreement.

The Ninth Circuit analyzed Bryant’s employment agreement with Mattel to determine if the assignment of inventions contained in the agreement included Bryant’s ideas. As detailed in the employment agreement, Bryant agreed to “communicate to [Mattel] as promptly and fully as practicable all inventions . . . conceived or reduced to practice by me (alone or jointly by others) at any time during my employment. I hereby assign to the Company . . . all my right, title and interest in such inventions, and all my right title and interest in any patents, copyrights, patent applications or copyright applications based thereon.” The employment agreement went on to specify that “the term ‘inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable.” Based on that language, the trial court found that the employment agreement assigned Bryant’s “ideas” to Mattel, even though the word “idea” was not listed in the definition of “inventions.”

In reversing the trial court’s decision, the Ninth Circuit noted that there was ambiguity in Bryant’s employment agreement. The Ninth Circuit reasoned that, even though the employment agreement could be read to include ideas, the text of the agreement does not necessarily compel such a reading. Under contract law, where a contract term is ambiguous the parties are supposed to be given an opportunity to present evidence as to the intent of the parties in drafting the contract. Because the trial court did not allow the parties to present evidence of the parties intent to the jury, the Ninth Circuit reversed the trial court’s rulings and remanded it. What does that mean? Means the parties get to do it all over again in the trial court.

The moral of the story is make sure that you have a clear unambiguous employment agreement with your employer to avoid disputes later on down the road.

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California representative Linda Sanchez has introduced legislation that would expand overtime protections of the Fair Labor Standards Act (FLSA) to home care workers providing health care and domestic services to the elderly and disabled. For 35 years, home care workers have been exempt from FLSA overtime protections, which requires overtime in the amount of time-and-a-half of the hourly rate to non-exempt workers for time worked over 40 hours in a week.

Rep. Sanchez says the new protections are needed to attract more home care workers to the field in light of the increasing demand for their services. The number of Americans who need long-term care is expected to reach 27 million by the year 2050—over double the number in 2000—as more Americans age and prefer to be cared for in their own homes instead of more-expensive nursing homes.

Call your member of Congress to offer your support for this legislation.

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Well after some time off and getting ready for a jury trial that was postponed by the judge as we were getting ready to select a jury, it is now back to the coal mine and blogging for you readers about developments in employment law.

As you may know, I have blogged in the past about pregnancy discrimination against employees. The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 so that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. In addition, most states have comparable state discrimination statutes that apply to pregnancy discrimination.

Under the Pregnancy Discrimination Act (PDA), an employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers. In addition, if an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

Well apparently the Detroit Police Department did not care to follow this law.

Six female police officers in Detroit settled their pregnancy discrimination lawsuit for over $200,000. As an additional term of the settlement, no employee or applicant will be asked if she is pregnant or anticipates being pregnant. Additionally the department cannot assign an officer to desk duty because she is pregnant unless she requests it or force her to go on unpaid leave.

The police officers alleged they were forced to go on sick leave, even if they could perform other duties. Five of the female officers said they were stuck at home without pay after exhausting sick leave.

So if you believe you have been the subject of pregnancy discrimination, speak to an experienced employment law attorney to advise you of your rights.

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