Posts Tagged ‘discrimination’
Many of you man know that if you your employer has at least 50 employees and you have been a full time employee of the employer for 12 months that you may be entitled to Family Medical Leave Act leave in the event of your serious health condition or that of one of your relatives. A new Federal Court opinion has indicated that an employee may not only take that FMLA leave, but should not be pestered about when they will return to work.
A U.S. District Court for the Western District of Arkansas opinion dismissed Howard Memorial Hospital’s motion for summary judgment and concluded that a jury should be presented with the Family and Medical Leave Act interference claim made by a hospital employee who said she felt pressured to return to work during her medical leave.
In the case, Regina Terwilliger, a former Howard Memorial Hospital housekeeper, claims that her supervisor contacted her on a weekly basis to ask when she would return to work after undergoing back surgery. One pivotal phone conversation revolved around Terwilliger’s work status, with the housekeeper asking if she was at risk of losing her job while she was at home recovering. During that conversation, Terwilliger’s supervisor responded to her questions by saying that she should return to work “as soon as possible.” Terwilliger decided to cut her medical leave short and returned to work a week early. A few weeks after returning to work, the hospital fired Terwilliger, alleging she stole from another hospital employee. Terwilliger says she was fired for taking FMLA leave and asserts that the hospital deprived her of the act’s full benefits by pressuring her to return to work early.
“Interference includes discouraging an employee from using FMLA leave,” the district court wrote.
If you have questions about your rights under the Family Medical Leave Act or FMLA, call Scott Behren and the Behren Law Firm.
Employees walk by them almost everyday and seemingly pay no attention, but they should. They spell out their rights and obligations under national and state employment laws. What are they?
State and federal laws impose numerous requirements and prohibitions on American businesses, but one of the most overlooked obligations for employers is the responsibility to conspicuously post various government labor law notices in the workplace. The purpose of these labor law posters is to inform employees of their rights under applicable laws and provide information on how to report discrimination, wage and hour violations and other rights infringements to the government.
While many employers do not readily embrace the idea of conspicuously posting information that tells their employees how to bring legal action against them, the obligation to display these notices is explicit in various labor laws and government regulations. The federal Fair Labor Standards Act (FLSA), for example, includes a provision requiring all covered employers to display the federal minimum wage poster in an area frequented by employees. OSHA (Occupational Safety and Health Administration) regulations specifically require employers to post a federal safety and health poster or a state equivalent. Failure to comply with government labor law posting requirements could lead to citations and fines during an inspection. Fines vary by poster and by enforcing agency, ranging from as low as $110 up to a potential maximum of $10,000. In total, businesses that don’t post these required notices or post outdated information could face combined fines up to $17,000 per location.
Posting the required information in a back room that employees never enter is not enough to ensure compliance. Government regulations specifically require that the information be displayed in an area frequented by employees during the normal course of the workday. For many companies, that means posting the mandatory notices next to employee time clocks or in lunch areas.
Additionally, some posters must also be displayed in lobbies or applicant areas, as they describe laws that protect job applicants from unlawful discrimination or harassment. One example is the federal “Equal Employment Opportunity Is the Law” Notice, published by the EEOC (Equal Employment Opportunity Commission).
If your employer does not post posters at your workplace relating to your rights under EEOC laws, OSHA and the Fair Labor Standards Act, then you need to either let them know or report the violation to the EEOC or U.S. Department of Labor. If they continue to fail to comply, enlist the assistance of an employment lawyer.
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.
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?
Many employees come to my office to consult with me about sexual harassment or discrimination based upon race, pregnancy, gender or age. On some occasions, the employee may still be employed by the employer. In those instances I always encourage them to file complaints or reports with human resources to allow the employer to use its internal procedures to address the problem. In the event that the employer does not address the issues, I will than encourage the employee to file a Charge of Discrimination with the EEOC.
The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.
The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
An EEOC Charge can either be filed with the assistance and representation of counsel or by the employee on their own. If you do it on your own, the EEOC will give you the forms and guidance on how to prepare the Charge of Discrimination. Once a complaint is made to HR or the EEOC, the employer is not legally allowed to retaliate or discriminate against you for making these complaints. However, that does not always mean the employer will follow the rules so you should keep careful notes and documentation of all complaints made, to whom you made them, and any actions taken against you as a result of these complaints.
The EEOC has a link on its website that you can use to do an online assessment of whether or not you should bring a charge with the EEOC. The link is at https://egov.eeoc.gov/eas/.
It is important to know however that if you choose to file an EEOC Charge, you must do so within 180 days or 300 days of the claimed discrimination or harassment, so don’t wait too long to take this action. You get 300 days if your state has a an agency similar to the EEOC such as in Florida, there is the Florida Commission on Human Relations (“FCHR”). You can fill out a charge in person at one of the EEOC offices or do it by mail.
Once the EEOC Charge is filed, the Equal Employment Opportunity Commission, a federal agency, has a staff of investigators who investigate your complaints. The employer is supposed to receive a copy of your Charge within ten days. They allow the employer an opportunity to file a formal response and generally will then ask for a reply from the employee. Sometimes, they will seek to interview the employee in person or over the telephone to get more information for their investigation. Sometimes the investigators will seek documents from the employer. Sometimes the EEOC will offer the parties to mediate the claims prior to further investigations. Keep in mind that if you choose to file an EEOC charge on your own, without an attorney, you will not have the support and guidance of an attorney to help you through this process.
Once the EEOC completes its investigation, they will issue either a “cause determination” finding that they believed discrimination took place or will issues a “Notice of Suit Rights” which states that although they don’t believe discrimination took place, you can file a legal action against the employer if you choose to do so. If the EEOC issues a “cause” determination, they can choose to file a lawsuit on your behalf, but are not required to do so.
Upon receipt of your Notice from the EEOC, if you are going to file a lawsuit, you must do so quickly since any Federal claims under the ADA, Title VII, the Pregnancy Discrimination Act, etc must be filed within 90 days. In Florida and other states, there are also state statutes which provide you a longer time to file suit.