Posted by marykeating on September 1, 2010 under Interesting cases, Sex-based discrimination | 
Wal-Mart has appealed to the Supreme Court the Ninth Circuit’s green light for the massive class action suit. As reported here earlier, the class action could lead to disposition of 1.5 million claims by women blocked from promotional opportunities. The petition for review asks the Supreme Court to disallow a class action where each worker’s damages have to be separately calculated, and also complained of the sheer mass of the case. The petition makes two main arguments. One is based on the proper interpretation of the federal rule governing class actions. The other argument contends that the plaintiffs’ proof is eased by this method, and that trying a case in this way deprives WalMart of the right to trial by jury.
Lyle Denniston of Scotusblog predicts that the petition will be decided this coming term. If it is granted, then the parties will brief the issues, which are historic. There may not be enough time to conclude the case by the end of the coming term.
One easy prediction: the fact that there are now three women on the Supreme Court will be mentioned frequently (did you read it here first?)
Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination |
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on under Wage and hour issues |
The Fair Labor Standards Act requires most workers to earn at least minimum wage, and for non-exempt workers to earn overtime pay. Some workers have been completely exempt from protection under this law, however. Until 1974 there was no set limit on hours or minimum pay for live-in workers such as housekeepers or nannies. But even after they were finally included in the law, live-in workers were still exempt from overtime, and companions for the elderly or the ill were not covered by the law at all.
New York has passed a law expanding the rights of domestic workers, entitling them to overtime after 44 hours for a live-in worker, after 40 hours for others, and mandating one day off per week. The Domestic Workers’ Bill of Rights also requires vacation time after a year of service, and extends the sexual harassment law to live-in employees. (Under federal law, the employer would not be liable in any event unless he or she had 15 full-time employees.)
Other states may follow New York’s lead, as news reports of abusive conditions for servants proliferate. Once an employee accepts both the domestic duties and a place to stay, the influence from the outside world can shrink.
Posted by marykeating on August 20, 2010 under Economic situation |
I’m not going to rehash the headlines that make everyone worry that the next recession is around the corner, even though we haven’t enjoyed the recovery yet. I did see a little bright spot locally, though. The Governor’s press release refers to a “Job Search Difficulty Index,” put out by www.juju.com. According to its analysis, the Baltimore metropolitan area has the fourth best job outlook. The study ranks major metropolitan areas by the number of unemployed individuals per each advertised job. More good news: the top spot goes to Washington, D.C., where many Marylanders work or would agree to work. The study is simplistic, in that it does not match qualifications against the advertised jobs. Still, a ratio of 1.67 unemployed people against 1 open job does not sound that bad. Certainly not as bad as Miami’s 9.41 ratio, or Detroit’s 8.67.
Besides being simplistic, though, these ratios are misleading in the way that the Bureau of Labor Statistics counts the unemployed. In fact, many unemployed Baltimore residents have been missing from this count for years. The number of unemployed people is based on a survey of people who are considered to be actively looking for work. It does not include a self-employed person (though some people are self-employed only until they find a job they like), someone in school, someone working in a family business, and someone who did not look for a job in the last four weeks.
Posted by marykeating on August 15, 2010 under Discrimination in employment |
The most difficult problem for victims of employment discrimination is proving the connection between the action and the discriminatory motive. With Title VII coming up on its 50th anniversary, it is not surprising that most people know not to make discriminatory comments out loud. (Okay, insert Dr. Laura joke here.) Many federal courts have made it more difficult by applying the “stray remarks” doctrine, under which discriminatory statements made by non-decisionmakers, or made by decisionmakers in another context, can’t be used to show that discrimination motivated a termination.
California rejected the automatic application of this rule in an age discrimination case against Google by an older worker told that he was no longer a “cultural fit” for the company.
“An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.” In its analysis, the Court noted how strict application of the stray remark doctrine ignored the actual reasoning of the Supreme Court decisions discussing their use. The use of stray remarks, together with other evidence, can add up to inferences of discrimination. The jury should decide whether these statements indicate that the decision was infected by a discriminatory attitude.
In its analysis, the Court adopts the “cat’s-paw” theory, that the Supreme Court is expected to address this coming Term. “ The stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” The decision’s comparison of many cases proves the point well: different courts reach opposite conclusions on whether certain remarks, like “old fart” or “grey hair” imply an ageist attitude.
California trends are often adopted elsewhere in time, although the cases can be laughed at when they come out. This well-reasoned opinion should be followed so that plaintiffs get the trier of fact to determine the meaning, in context, of comments that sound like discrimination.
Posted by marykeating on August 12, 2010 under Collective rights, Wage and hour issues |
The New York Times reported that the health care industry is the latest industry in the Department of Labor sights. After finding that hospitals and nursing homes are misclassifying workers, and failing to pay overtime correctly, the Department has obtained large settlements against Kaiser Permanente and SSM Health Care, and is pursuing residential care facilities. Two problems are commonplace. One is the classification of an employee as exempt from overtime, when the employee is not properly classified as exempt. The second is failing to pay overtime pay when
employees actually work through unpaid meal breaks.
The automatic deduction of meal breaks has been a problem in many industries. An employee must be fully relieved of work obligations during a lunch or dinner period in order for the employer to mark it as unpaid. Yet many employees in high-paced workplaces are expected to answer the telephone, finish the report, or respond to patient needs during the break. This is especially the case with short meal breaks, which as a practical matter prevents an employee from leaving the worksite.
The Department of Labor is not the only danger for employers engaging in this behavior. Employees, alone or in groups, are empowered to sue their employers, and can receive double the unpaid pay as liquidated damages, as well as attorney’s fees.
Posted by marykeating on August 10, 2010 under Court news |
Judge James Wynn, Jr., long an appellate judge in North Carolina, finally was confirmed to a spot on the Fourth Circuit. Like Judge Davis, confirmed in April, Judge Wynn was first nominated by Preident Clinton. Had he been confirmed then, he would have been the first African-American on that court. The court was long controlled by Senator Jess Helms, however, who blocked both appointments. Only two seats are now vacant. One nominee has been waiting for a vote from the full Senate since January 28.
Posted by marykeating on August 6, 2010 under Economic situation, Unemployment compensation |
As reported here a few months ago, part of the federal stimulus package consisted of a tax credit for employers who expanded their workforce, and filled the new slots with people who had been receiving unemployment benefits. The plan provided multiple benefits: people on the unemployment rolls become more attractive at a time when many are finding their unemployment status as a stigma, the unemployment rolls decrease, lessening the burden on a bulging system, and employers find it easier to express optimism in the future when the government kicks in a $5,000 tax credit per hire.
Unfortunately, not many people have benefited. According to the U.S. Treasury, only 238 employees were hired in Maryland under this plan, from February through July. The program has room for Maryland companies to hire 4,000 workers through the end of the year; the local economy is unlikely to use all of these credits. That failure seems more associate with lack of awareness of the available tax breaks, however, since hiring is up since January. Maryland’s Department of Labor, Licensing and Regulation has a link to information on the program on its home page.
Of course, the federal government may choose to extend the program; as businesses begin tax preparation the credit may become more well-known.
Posted by marykeating on July 31, 2010 under retaliation |
The Sarbanes-Oxley Act imposed higher standards of conduct on publicly-traded companies, to avoid massive stock fraud and other ills in complex companies whose shares traded on public exchanges. The Act also created a degree of protection for whistleblowing employees who had a reasonable belief that their company was violating the law. The problem in implementing the law was the “reasonable belief” part; that created incentives to challenge the employee’s belief and basis.
The law was revised by the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law this month. Now, employees who complain to the Securities and Exchange Commission are automatically covered by the anti-retaliation provision. They are also entitled to double their back pay if the retaliation cost them their job. An employee who objects only within the company is protected from retaliation, but still must satisfy the reasonable belief standard. Finally, the law invalidates any effort to require claims to be arbitrated rather than go to court and be heard before a jury.
Naturally the hope is that employees, usually in the best position to detect fraud, will come forward to prevent the future Enron situations. The protection for internal complaints is helpful, too. Companies should reward employees for whistleblowing activities, given the stakes. Most employers would rather deal with problems internally rather than risk the SEC launching an investigation.
When the fraud is significant, however, the employee is best served by going directly to the SEC. The employee whose complaint leads to a recovery by the SEC is entitled to a share of the fine.
Posted by marykeating on July 29, 2010 under Economic situation, Unemployment compensation |
resident Obama signed into law the restoration of unemployment benefits last week. For workers whose benefits had expired seven weeks ago, that was good news. They are now entitled to a maximum of 99 weeks of benefits. To employers, the news most likely means another future hike in the unemployment tax applied to the payroll. Still, with unemployment near 10% in many places, and unemployment rates up in three-quarters of the metropolitan areas of the country, it is illogical to blame the unemployed.
In the census study, a question went unanswered about the effect of unemployment benefits on the incentive to find work. Keeping in mind that the benefits are relatively low, one would think that most people would continue to look for work at their former pay rate, since lifestyle tends to follow income level. A short article entitled “Five Myths About Unemployment” appeared in Sunday’s Washington Post, and addresses some of the concerns about the extension, and reasons that overall it is good for the country as well as the individual workers who need it.
