Washington D.C. Employment Lawyer Blog

New single utterance precedent will help to protect workers

2013-05-11T13:38:08Z

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.

]]> When he brought a discrimination suit against his employer, the claim was originally rejected because a single offensive slur was considered by the lower court to be insufficient evidence of a hostile work environment. However, the D.C. Circuit has created new precedent with this case's holding that a single utterance, if egregious enough, can be grounds for a hostile environment claim.

In this case, the utterance of perhaps the most racially denigrating word in our language hurled by an employer at an employee provided substantial enough grounds to allow the claim to move forward. This new precedent will help to ensure that employers are held accountable in similar situations and that no employee will be forced to swallow that kind of treatment without an avenue for recourse.

Source: Lawyers.com, "One Slur Enough to Bring Racial Harassment Case, Court Rules," Aaron Kase, Apr. 18, 2013

Overtime and Smartphones: When Do Employers Cross The Line?

2013-02-11T13:39:16Z

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.

]]> Overtime, Smartphones and Hourly Workers

Legal professionals argue that providing hourly workers with smartphones or access to various workplace networks is a way for employers to "implicitly" tell employees to work. Unless companies utilize a system to record the worker's hours and carefully monitor how these technologies are used, the employers could be opening themselves up to a wide array of overtime lawsuits.

One such case is currently in the works involving Amerisave Mortgage Corp. and a group of former employees. The employees allege that they were encouraged by managers to falsify time sheets and adjust their hours downward, never clocking more than 40 hours a week. In some cases, the workers claim the reported 40 hour work week actually took over 90 hours to complete.

Another case involves T-Mobile USA Inc. and employees who claim the company required them to respond to work related emails at any time of day, whether or not they were clocked in.

In many instances, employers are required under The Fair Labor Standards Act (FLSA) to pay "not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek." FLSA includes taking work home and making work-related telephone calls from home within the types of work that can require compensation.

As a result, the employees may have a strong case.

Retaliation Claims Against Employers on the Rise

2013-01-14T13:00:16Z

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.

]]> Legal Remedies Available For Victims of Retaliation

Under state law, an employee is allowed to bring a retaliation action up to one year after the violation occurs. If the court finds in the employee's favor, the employee can receive a wide array of judicial relief and damages.

This can include reinstatement to the same position held prior to the retaliation, restoration of lost benefits, back pay along with interest, compensatory damages, reasonable costs and attorney fees.

EEOC "Aggressively Reviews" Discrimination Against Pregnant Workers

2012-12-17T13:55:06Z

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.

]]> Employers are also required to provide pregnant employees with the same benefits as other workers. This includes:

Health insurance
Retirement plans
Disability benefits

If the pregnancy results in the inability to complete job duties the woman must be treated the same way other employees with a medical condition are treated. This can mean that the employer will need to modify tasks, provide alternative assignments or allow for disability leave.

If an employer violates this law legal remedies are available. This can result in reinstatement to the position held prior to discrimination, back pay and other forms of compensation.

Gender Discrimination Continues To Cause Problems In The Workplace

2012-11-19T13:11:37Z

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.

]]> Gender discrimination is also present when an employee is harassed sexually. This can occur when an employee experiences unwanted advances or verbal remarks of a sexual nature by fellow employees or supervisors.

Workers are protected under federal and state law from these forms of unequal treatment. Under federal law, remedies for discrimination can include compensatory and punitive damages. Compensatory damages are designed to provide a victim with payment to cover costs directly connected to the discrimination, like finding a new job. Punitive damages are intended to punish the offender by requiring the employer to pay an award to the victim.

If you or a loved one is the victim of discrimination, these forms of compensation may be available. Contact an experienced gender discrimination lawyer to discuss your legal options.

Wage and Hour Claims Spike in Down Economy

2012-10-15T12:56:46Z

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.

]]> Economic downturns may lead to exploitation of employees because they are expected to take on extra duties left behind by laid-off colleagues. Misclassification of workers as being exempt from FLSA overtime laws and the threat of job loss can make it easy for employers to squeeze more than 40 hours of work from workers without paying overtime wages.

Another reason cited for the increase: federal and state employment statutes have failed to keep pace with changes in technology that have altered the average work day. The promise of massive damages awards may be one more significant factor that has inspired workers to assert their rights.

Anti-Discrimination Agency Sued For Discrimination

2012-09-17T12:50:17Z

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.

]]> According to the Wall Street Journal, the retaliation lawsuit alleges the EEOC changed the judge's deadlines so that they were stricter than her non-disabled co-workers, did not allow her to work from home and prevented any opportunity for promotions. Ultimately, after filing her complaint the judge states she was "ostracized and effectively discharged" from her position with the EEOC.

Legal Remedies Available for Victims of Retaliation

Legal remedies are available for victims of retaliation. Both federal and state laws offer protections and can extend to cover reinstatement to the original position prior to retaliation, payment of lost wages and additional compensation.

U.S. Supreme Court Resolves Glaxo Overtime Dispute

2012-08-13T12:34:25Z

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.

]]> The basic issue in both cases was whether pharmaceutical company representatives who do not consummate sales transactions can be considered "salesmen" for FLSA purposes. In a five to four decision, the Supreme Court held that they can, even though they merely pursue non-binding pledges from physicians to prescribe a company's products.

The majority cited the "unique regulatory environment" that pharmaceutical companies operate within as a key factor in defining them as sales personnel, as well as their salary level. While this decision also overturned the result in the Second Circuit Novartis case, the $99 million settlement those employees reached with their employer will not be affected.

Employees who feel that a company has exploited workers by requiring them to work excessive hours without fair compensation have strong protections under state and federal law. As complex as these cases may be, the unique nature of every claim is a good reason for employees to seek experienced advice from an employment law attorney.

Basics of Job Discrimination Claims

2012-07-16T12:20:29Z

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

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It is important to be aware that these laws apply to different types of employers. For example, Title VII and the ADA cover all employers within the private sector, state and local government jobs and educational facilities that employ 15 or more people, while the ADEA covers all employers in the private sector who employ 20 or more people, state and local government employers, employment agencies and labor organizations.

Available Remedies

An employee who is treated differently in violation of these or other laws protecting employment rights can file a claim of discrimination. In addition to filing with the EEOC office, it is wise to discuss your situation with an experienced employment discrimination lawyer. This professional will be able to explain which laws apply to your unique situation and the remedies that may be available.

Remedies can range from compensation for missed pay to reinstated employment and can even include payment to cover court and attorney costs.

EEOC Issues Warning About Criminal Background Checks

2012-06-18T12:14:34Z

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.

]]> Of course, employers may have a legitimate reason to use criminal background checks. For example, criminal records can help employers eliminate employee theft and screen out potentially violent individuals. The EEOC wants to make sure, however, that employers have a legitimate reason to use this information.

The EEOC recommends that employers conduct an assessment of an applicant's criminal background in light of:

The nature and gravity of an applicant's offense;
The amount of time that has passed since the offense; and
The nature of the job

An Employment Law Attorney Can Help

If you or someone you love has faced employment discrimination, has not been paid for overtime, or is facing another type of employment dispute, contact an experienced employment law attorney. A knowledgeable employment law attorney can assess your case and help you protect your rights. For more information about what an employment law attorney can do for you, contact us today.

Source: EEOC, "EEOC urges caution on criminal background checks."

Wal-Mart Faces $4.8 Million Bill for Unpaid Wages

2012-05-04T12:44:59Z

The U.S. Labor Department recently ordered Wal-Mart to pay nearly $4.8 million in back wages to approximately 4,500 workers who failed to receive overtime from 2004 to 2007. For the three years in question, Wal-Mart failed to pay its vision center managers and asset protection coordinators overtime because it considered them exempt from federal regulations requiring overtime pay.

As a result of the settlement, asset protection coordinators will receive an average of $290 back pay, while vision center managers will receive an average of $2,300. This may not seem like much, but the settlement is a victory for those who want to assure that workers receive the wages they have earned.

]]> Unfortunately, this is not the first time that Wal-Mart has failed to pay workers the wages they earned for working overtime. In 2007, the Labor Department ordered the retailer to pay nearly $34 million to about 87,000 workers. In some cases, workers received nearly $10,000 in back overtime pay.

Contact an Employment Law Attorney

If you or someone you love has not been paid for overtime or has another wage and hour dispute, contact an experienced employment law attorney. A knowledgeable employment law attorney can assess your case and help you do what is necessary to protect your rights. For more information, contact an employment law attorney today.

Source: Washington Post, "Wal-Mart to pay $4.8 million in back wages," Ylan Q. Mui.

Feds to consider proposal to apply federal protections to home care aids

2011-12-01T17:55:15Z

According to the New York Times, the Office of Management and Budget recently agreed to look over a proposal made by the Department of Labor to change companionship exemption. Companionship exemption is a term referring to a provision in the Fair Labor Standards Act which specifies that employees in the home health care industry providing "companionship services" need not be paid minimum wage or overtime for their work.

As the article points out, the move came four years after the Supreme Court ruled against a 73-year-old home care aid for the elderly. The woman had apparently sued her employer for years of unpaid overtime, which had been denied to her as she was deemed to fall under the companionship exemption.

]]> The development is a welcome one, and a sign that the budget office is interested in looking into greater legal protection for home care workers, many of whom are females, low-income, and minorities or immigrants.

In that case, the justices agreed that the woman fell under that exemption, and that only the Labor Department or Congress had power to change the companionship provision.

The content of the proposal is not yet exactly known, but it is hoped that it contains specific language stating that home care aids are not excluded from federal labor protections.

Supporters of the provision say that the provision will improve the industry's problems with recruitment and retention, and will help keep more people out of costly nursing homes.

Source: New York Times, "Fair Pay for Hard Work," November 25, 2011.

SEC disciplines 8 employees for failures in Madoff case

2011-11-30T17:50:47Z

The Washington Post recently reported that eight employees of the Securities and Exchange Commission have been disciplined for filing to take action on repeated warnings connected to Bernard Madoff's fraud scheme.

Each of the employees was accused of not taking the necessary steps to determine whether Madoff was misrepresenting his trading. In response, the agency's human resources department apparently recommended termination of one of the eight employees, but that employee was ultimately not fired so as not to "harm the agency's work." All eight of the employees, though, were disciplined. In addition, a ninth employee-who had been facing a possible seven-day suspension-resigned before disciplinary action was taken against him.

]]> In addition to the disciplinary action, the SEC also issued suspensions, pay cuts and demotions to the employees. The employee who was recommended for termination reportedly received a 30-day suspension and a reduction in pay and grade. The others received lesser consequences.

The disciplinary process was reportedly concluded some months ago, but one of the disciplined employees has appealed the action to the agency.

The Madoff case, considered by many to be the biggest embarrassment in the history of the SEC, is still causing many to doubt whether progress has been made in cleaning up the industry.

Earlier this month, the SEC was blasted by a federal judge for allowing firms settle fraud charges without having to admit or deny wrongdoing.

Critics say the agency has not been serious enough in addressing the failings of employees.

Source: Washington Post, "Eight SEC employees disciplined over failures in Madoff fraud case; none are fired," November 11, 2011.

Military members still face sexual orientation discrimination

2011-11-26T17:21:45Z

There are numerous laws in place that are meant to protect employees from discrimination. While many civil employees can fall back on state and federal protections, federal employees, such as members of the military, can only rely on the protections enacted at the federal level. Many people in Washington, DC, and across the country were convinced that repealing Don't Ask, Don't Tell, the law that prohibited members of the military from serving openly, would eliminate the discrimination felt by many military families. Unfortunately, there are still many families dealing with how a spouse or partner fits into federal employee benefits.

There have been a handful of same-sex families across the country that have recently filed a federal lawsuit that alleges that they are the victims of unconstitutional discrimination. The families claim that they have not been able to collect federal benefits because of the Defense of Marriage Act.

]]> This lawsuit is particularly hard for a member of the New Hampshire National Guard. She had previously been diagnosed with a particularly aggressive form of breast cancer that required a double mastectomy, chemotherapy and radiation treatment. After going into remission, the cancer unfortunately came back. While a heterosexual couple would receive death benefits and burial rights without a question, the women allege that they will not, should anything happen.

The current lawsuit was filed by 16 retired and active members of the military who are affected by the alleged discrimination. They have named the U.S. Secretary of Defense, the U.S. Secretary of Veterans Affairs, the U.S. Attorney General and the federal entity of the United States as defendants.

Source: Seacoastonline.com, "Gay local Guardswoman faces federal legal fray," Elizabeth Dinan, Nov. 22, 2011

Former BUILD interns file suit for unpaid wages

2011-11-21T19:37:01Z

A group of Brooklyn residents filed suit in a federal court last week seeking unpaid wages and damages from multiple companies who have been accused of failing to pay them for work they performed, as well as breaking promises of employment.

The plaintiffs apparently took part in a pre-apprentice training program, which was created as part of a community benefits agreement which promised to create local in order to gain support from residents and politicians for the Atlantic Yards Project. For our readers who are unfamiliar with the Atlantic Yards Project, it is a development project involving 16 high-rise buildings in Prospect Heights, which is next to Downtown Brooklyn.

]]> Among those named as defendants in the suit are Atlantic Yards Development Company LLC, Forest City Ratner Companies LLC, and Brooklyn United for Innovative Local Development (BUILD). The plaintiff's, apparently all former BUILD members, claim they worked for two months on a private residence renovation project in Staten Island, for which they received little or no training or compensation.

The plaintiffs reportedly entered the internship program on promises of guaranteed union jobs and continued working after being informed they would not receive union membership if they stopped their work.

According to BUILD, the plaintiffs signed an agreement indicating they would not receive pay for the work or be guaranteed union membership. But according to the plaintiffs' attorneys, signing the agreement does not mean the interns were not entitled to pay for the work they performed.

The defendants reportedly have 21 days to answer the complaint.

This story is a bit like a previous one we posted on which involved two former interns who worked for Fox Searchlight Pictures on the film "Black Swan." Those interns filed a federal class action suit claiming the company violated labor laws by hiring unpaid interns.

With economy being the way it is, it shouldn't be that surprising to be seeing these kinds of lawsuits. It will be interesting to see how the courts handle them.

Source: New York Times, "Brooklyn Residents File Lawsuit to Recover Unpaid Wages," Chester Soria and Martin Leung, November 16, 2011.