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Washington D.C. Employment Law Blog

New single utterance precedent will help to protect workers

On behalf of Alan Lescht & Associates, P.C. posted in workplace discrimination on Saturday, May 11, 2013.

The childhood playground adage that sticks and stones may break bones but words can do no harm is quite simply false. When words are strong enough and said in a certain context, they can do great harm. Thankfully, a recent ruling by the influential U.S. Court of Appeals for the D.C. Circuit holds that when even a single statement is egregious enough, an employee may bring suit against his or her employer for race discrimination or other forms of harassment.

The case that inspired the holding was brought on behalf of a black, male Fannie Mae employee born in Cameroon. After being subjected to an inequitable pay situation allegedly rooted in racial discrimination, he filed a complaint internally. A few days after lodging this complaint, a supervisor ordered him from his office and hurled a deeply offensive slur at him historically used to denigrate black people.

Overtime and Smartphones: When Do Employers Cross The Line?

On behalf of Alan Lescht & Associates, P.C. posted in Unpaid overtime on Monday, February 11, 2013.

Society has changed by leaps and bounds over the last few decades. Television sets now require the use of remote controls, many meals can be cooked using only a microwave and work can be completed at any time of day using a tiny, handheld device called a smartphone.

Although smartphones offer employers and employees alike many advantages in the workplace, there are some drawbacks. One problem gaining media attention is the difficulty in determining work hours when employees seem to always be on the job - leading to allegations of unpaid overtime.

Those with smartphones often check work email or the status of projects at night and during the weekends. Unfortunately, it appears this need to feel connected to our jobs is becoming the norm. In some cases, it seems employers may even expect it.

Although it is not always illegal for an employer to expect round the clock access to employees, it can get complicated. This is particularly true when dealing with hourly workers.

Retaliation Claims Against Employers on the Rise

On behalf of Alan Lescht & Associates, P.C. posted in Retaliation on Monday, January 14, 2013.

Retaliation claims against employers were up three percent in 2011 and more than doubled since 1997, according to the U.S. Equal Employment Opportunity Commission. These claims are present when an employee reports an employer for violating a law. That employee is then considered a "whistleblower" and is protected by both state and federal laws.

Whistleblower protections are applied when an employer fires, demotes or otherwise negatively treats the employee for filing a claim or reporting a violation. This type of action on the part of the employer can lead to retaliation claims.

Changes in How the Court Views Retaliation

The increase in retaliation claims is likely connected to a Supreme Court ruling six years ago.

Essentially, the ruling redefined a retaliation action as one that was harmful to the employee in a manner that would "dissuade a reasonable worker from making or supporting a charge of discrimination." As a result, an employee no longer needs to be demoted or fired.

Actions that negatively impact the worker like a transfer, reduced breaks, denial of a request for vacation or previously approved opportunities to leave early to attend children's sporting events could all qualify. 

EEOC "Aggressively Reviews" Discrimination Against Pregnant Workers

On behalf of Alan Lescht & Associates, P.C. posted in Discrimination on Monday, December 17, 2012.

The Equal Employment Opportunity Commission, or EEOC, recently announced that it is working to "aggressively review" claims of discrimination against pregnant women and workers with care giving responsibilities.

The EEOC's overall mission is to ensure employers do not discriminate against employees. The federal agency further supported their focus on claims relating to pregnancy with an official statement noting that the agency was "committed to ensuring that job applicants and employees are not subject to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities."

The announcement came shortly after the EEOC entered two large settlement agreements against employers alleged of pregnancy discrimination. A medical staffing company based in Milwaukee, WI, agreed to pay $148,000 in settlement and an agricultural product and food ingredient supplier based in California settled for $140,000.

Impact on Pregnant Workers

Pregnant employees are protected against discriminatory practices by both state and federal laws. Under the Pregnancy Discrimination Act it is illegal to refuse to hire, promote or fire an employee based solely on the fact that she is pregnant. 

Gender Discrimination Continues To Cause Problems In The Workplace

On behalf of Alan Lescht & Associates, P.C. posted in gender discrimination on Monday, November 19, 2012.

In a time when shows can be recorded with the flip of a switch, people can travel to foreign countries on a whim and a Smartphone can be used to find the answer to just about anything that may be on our minds, it is hard to believe that gender discrimination is still a problem. Yet, a major pharmaceutical company is currently being accused of treating women differently than men.

According to the complaint filed with the federal district court in New York, Forest Pharmaceuticals Inc. "engaged in systemic, companywide discriminatory treatment of female employees based on their gender, their taking of federally and state-protected maternity leave and their status as pregnant women or caregivers."

The 1,500 women who filed suit against the major pharmaceutical company allege they received lower pay than their male counterparts and were denied promotions and experienced limited employment opportunities.

Basics of Gender Discrimination

Unfortunately, gender discrimination like that alleged above is not uncommon. Essentially, discrimination occurs whenever a person receives unequal treatment based solely on their gender. This form of discrimination is present when gender results in unequal pay or limitations in an employee's opportunity.

Wage and Hour Claims Spike in Down Economy

On behalf of Alan Lescht & Associates, P.C. posted in Wage and Hour Disputes on Monday, October 15, 2012.

According to statistics compiled by the U.S. Department of Labor, claims of wage and hour violations are at record levels. Indeed, data shows steady increases over the past decade in the federal judicial caseload involving claimants who allege overtime violations and other breaches of employment laws.

Wage and hour lawsuits under the Fair Labor Standards Act have more than tripled since 2002. Economic difficulties, increased enforcement by federal regulators and employer disregard of overtime laws all factor into the trend.

The Department of Labor's wage and hour division collected nearly a quarter of a billion dollars in back wages last year on behalf of over a quarter of a million employees nationwide. Legal commentators explain the importance of class actions for taking on the problem of "unremedied wage theft" by employers from employees who earn low wages.

Anti-Discrimination Agency Sued For Discrimination

On behalf of Alan Lescht & Associates, P.C. posted in Retaliation on Monday, September 17, 2012.

In an interesting turn of events, a federal agency charged with enforcing the laws designed to protect employees from discrimination was sued for discrimination earlier this year.

The Equal Employment Opportunity Commission, or EEOC, is accused of violating the Rehabilitation Act by a former judge. The law works to protect workers from discrimination when the worker suffers from either physical or mental disabilities.

EEOC Accused of Unlawful Retaliation

In this case, the former administrative law judge alleges the federal agency discriminated against her based solely on the fact that she suffers from multiple sclerosis and systemic lupus.

The judge, Mary Bullock, sought accommodations allowed under the Rehabilitation Act. She alleges the agency retaliated against her after requesting these accommodations.

Retaliation is a separate allegation connected to the original discrimination claim. A retaliation claim is made after the initial violation or discriminatory practice is reported. If the employer responds to the allegation by treating the employee unfairly, retaliation is present.

U.S. Supreme Court Resolves Glaxo Overtime Dispute

On behalf of Alan Lescht & Associates, P.C. posted in Unpaid wages on Monday, August 13, 2012.

Wage-and-hour disputes based on an employer's failure to heed the Fair Labor Standards Act (FLSA) usually involve issues over contract terms, employee misclassification or overtime pay. The U.S. Supreme Court recently resolved a high profile wage-and-hour claim filed by two employees of pharmaceutical giant GlaxoSmithKline.

The employees, sales representatives who visited physicians in assigned territories to promote the company's prescription drugs, worked 50 to 60 hour weeks for Glaxo. The received both a base salary and bonuses, and were not required to report their hours to supervisors, but claimed that they were eligible for overtime under the FLSA because they only promoted the company's products.

The Arizona Federal District Court granted summary judgment to the employer, ruling that the employees were outside salesmen who were exempt from FLSA overtime requirements. The U.S. Ninth Circuit Court of Appeals agreed, despite a different outcome based on a Department of Labor interpretation of the definition of "outside salesman" that had recently been decided in a similar case against Novartis before the U.S. Second Circuit in New York.

Basics of Job Discrimination Claims

On behalf of Alan Lescht & Associates, P.C. posted in employment discrimination on Monday, July 16, 2012.

In theory, employers within the United States are supposed to provide equal opportunities for all workers regardless of race, sex, religious belief and a wide array of other characteristics.

In practice, some employers will provide workers with different pay scales or offer promotions based on these characteristics. In an effort to ensure that employers are promoted, hired and paid based on their abilities instead of these characteristics, the federal government enacted various laws prohibiting employment discrimination.

Federal Laws Protecting Workers

A number of federal laws are present to offer protections against job discrimination. Many are enforced by the U.S. Equal Employment Opportunity Commission (EEOC) including:

  • Title VII of the Civil Rights Act of 1964 (Title VII): prohibits discrimination based on race, color, religion, sex or national origin
  • Equal Pay Act of 1963 (EPA): prohibits men and women from receiving different pay for substantially similar work in same workplace
  • Age Discrimination in Employment Act of 1967 (ADEA): prohibits discrimination based on age, specifically for those 40 and older

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA): prohibits discrimination based on disability in private business along with state and local government positions

EEOC Issues Warning About Criminal Background Checks

On behalf of Alan Lescht & Associates, P.C. posted in employment discrimination on Monday, June 18, 2012.

The United States Equal Employment Opportunity Commission (EEOC) recently issued guidance to employers regarding the use of criminal background checks when vetting potential employees. Specifically, the EEOC reiterated its position that an employer using criminal background checks must take care to avoid violating Title VII of the Civil Rights Act prohibiting discrimination against minorities. In fact, the EEOC recommends that employers stay away from using criminal background checks in the hiring process.

The EEOC's guidance comes after Pepsi paid $3.1 million to settle charges that it had refused to hire minorities with arrest records earlier this year.

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