Posted by marykeating on October 30, 2009 under Employment benefit issues, Pending legislation | 
The Secretary of Health and Human Services released a report explaining in very clear language the effect of health insurance reform on the ability of small businesses to offer health insurance. According to HHS’s report, 56,593 small businesses in Maryland alone would qualify for an attractive tax credit. In addition, health insurance reform would end the catastrophe that effects some businesses when insurers hike premium costs as a result of an illness or injury of even a single worker. Small businesses have been rated by their own experience. So when one person of 50 has a serious illness, incurring hospital care, the rates for the business are directly affected. For a huge business, an illness or two does not alter the experience very much, because of the law of averages. But small businesses can be forced into giving up insurance benefits if two people are diagnosed with cancer.
The new law, if it passes, would forbid rating based on health status. In the end, the law of averages across the spectrum of the state or the country will drive insurance prices. In addition, the new law would end the lifetime cap on insurance benefits. This was an issue advocated by the late Christopher Reeve, who would not have made the progress he did without personal resources.
Finally, the law would end the practice of discrimination against women. There are insurance plans that refuse to cover women of child-bearing years, or treat pregnancies as uncovered conditions. (Maryland law is stronger than some states, and does not permit a blanket prohibition against insurance for childbearing.)
The economic hardships that have befallen many employees and businesses have brought some of these issues to the forefront. I hope we have the fortitude to make some much-needed reform to the existing system.
Posted by marykeating on October 24, 2009 under Employment benefit issues, Severance agreements |
I know I’m not the only one who’s a little leery of the charge ahead toward electronic access of health records. I’m not a Luddite, I use technology for hours every day, and can’t completely remember life without the computer. And when I handle a long-term disability case, I LOVE receiving medical records that are typewritten, not written in that arcane code and famously bad handwriting.
But the assumption that every American’s complete health history should be available for nationwide electronic exchange and use scares me a little. HIPAA, the Health Insurance Portability and Accountability Act, governs the disclosure of health information. A new law has added to the mix, called the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), part of the American Recovery and Reinvestment Act of 2009. The law and its regulations erect standards intended to minimize disclosures. This new law also sets out a lot of requirements for notifications that are necessary in the case of a breach of the privacy provisions. Specifically, the person whose privacy has been breached is entitled to notice.
The problems are: what if notice is not given; and what if it is? In the first instance, the person with the divulged health information has suffered a loss of privacy, but may never know. So, enforcement of this law is not going to be easy without whistleblowers or honorable companies holding the information.
In the second instance, privacy is breached, and the person is so notified. Now what is there to do? As of now, only the federal or state government can pursue the discloser and seek penalties. The penalties can get large; for example, for wilful violation which is not corrected, the maximum penalty is $50,000. But this still deprives the individual of control, not to mention the damages. An individual whose health information breach leads to the potential for identity theft can act quickly, and often avoid the worst of the damage. (See the Federal Trade Commission site for a step-by-step guide to dealing with identity theft.) And a violation could lead to a state case for invasion of privacy. Damages are difficult to measure in those cases, though.
This situation is similar to what we often face in considering severance agreements. It is typical for the company and employee to promise not to disparage each other. But what if they do? How do you prove the damages? In some cases, you just have to trust the good faith of the other party, because the prospects of enforcing a promise like that are dim.
Posted by marykeating on October 23, 2009 under Age discrimination |
Dean Inman worked for 17 years at Klockner Pentaplast of America as a senior manager. He charged Klockner with age discrimination when it fired him. The prospects of getting to trial in federal court on discrimination have been low in recent years. Since last terms’ Supreme Court decision in Gross vs. FBL Financial Services, moreover, the burden on age discrimination plaintiffs has been higher still. The Gross decision heightened the standard of proof under the Age Discrimination in Employment Act, requiring a plaintiff to show that if not for his age, he would not have been fired.
Despite this barrier, the Fourth Circuit reversed summary judgment in favor of the employer. Unfortunately, the case is not published, which limits its precedential value to others. But in terms of a pro-employee decision, it’s big news.
In Dean Inman’s case, his boss claimed that Inman had lied about supporting the company’s decision to freeze salaries, and repeatedly refusing to implement a program that the supervisor wanted. Often those kinds of allegations are enough to get an employer judgment without having to go to trial. They sound plausible enough, and Inman did not deny that he found the program a waste of time and refused to work on it.
But there was also evidence about age bias, in the form of adjectives betraying stereotypes about older workers. Assumptions about older workers’ limitations may be even more prevalent in high tech jobs than others, where the young are seen to be the leaders of the high technology revolution. His termination was supported by the supervisor’s wish for a “more energetic person” as leader of the technical department, “for the appearance of a revitalized company.” Mr.Inman was told that he did not fit the “model” or “profile” the company wished. In addition, the decisionmaker was paying close attention to a consultant who advised the company to appoint four people to a task force, and specified that they should be “young,” “energetic,” “future people.”
It is encouraging that the Fourth Circuit recognized these statements as indicators of age bias. Even though the employee has the burden of proof to show that discrimination motivated the decision, this evidence entitled him to have a trial and let the jury decide who was telling the truth
Posted by marykeating on October 19, 2009 under Uncategorized, Wage and hour issues |
The Fair Labor Standards Act requires hourly employees to be paid for time worked, and for time during which the employer “suffers or permits” the employee to work. Many disputes arise over the right to payment for time spent putting on protective clothing, reaching the workplace (for example, going through security and walking to the timeclock), and waiting time. Some rules are clear, and others still await court clarification. But today I’m going to discuss the right to be free from retaliation for complaining about a practice that may violate the law.
As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.
This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.
In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.
Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.
Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.
Posted by marykeating on October 13, 2009 under Court news |
The Senate Judiciary Committee has before it seventeen nominations to the federal courts, none of which have yet been confirmed by the Senate as a whole.
It is too early to conclude that the minority in the Senate will remain successful in keeping the brakes on the process. Progress is important; as Carl Tobias points out, the federal judiciary is overly stocked with white men. (Carl Tobias is Williams Professor at the University of Richmond School of Law.) “Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.”
Two of the pending nominations are for the Fourth Circuit, which has been running shorthanded for years. The glacial process impairs justice. There are five openings on that court, one third of the fifteen judicial seats. In the absence of judges, appellants cannot get the attention or promptness they deserve, and practitioners suffer because fewer opinions are polished for publication.
Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated for a second time (his died when the Senate failed to take action before President Clinton’s term ended). Judge Davis has been a judge since 1987; the Fourth Circuit would be his fourth court. On June 4, the Senate Judiciary Committee voted him qualified, and sent the nomination to the full Senate. Now that Justice Sotomayor has been confirmed (two months now), the Senate should fill this seat, vacant for ten years now.
Judge Davis is well-regarded, and should easily obtain the needed votes, if the Senate just gets to it. His record is not overly liberal; in fact, the National Council on Independent Living opposes Judge Davis’s elevation because of his record on ADA cases, strictly applying the definitions of disabled to deny coverage under that law.
President Obama has also nominated a Justice of the Supreme Court of Virginia, Barbara Milano Keenan. She recently had a hearing before the Committee.
Posted by marykeating on October 9, 2009 under Discrimination in employment, Workplace privacy |
Employees these days are flooded with applications. So they have to weed out people somehow. Once you get past the poorly done cover letter, the resume with typos, the lack of relevant experience, there may still be a pile of possibly good candidates. What’s an employer to do?
Well, some are demanding from applicants the right to run credit reports, and to use the results to make decisions. An employer who obtains a credit report without a valid reason or authorization is asking for trouble under the Fair Credit Reporting Act. But what about the ones who have permission?
Bad credit can be a very loose proxy for poor judgment or irresponsibility, of course, but the credit report itself seldom gives a realistic portrayal of the circumstances that explain the credit card load, the repossessed automobile, or the lawsuits by the hospital. Divorces, job loss, and medical catastrophes cause more bankruptcies than anything else, so it stands to reason that they are behind other bad ratings in a credit report. Employers relying too heavily on credit reports will deprive themselves of good workers. They may also, inadvertently or not, exclude disproportionate numbers of women, minorities, and young workers.
Some employers have a reasonable basis for requiring a credit report. Companies with contracts requiring national security clearances may have to be careful of the employee with too much debt, implying a weakness for espionage. (Or is that all left behind with the cold war era?) Employees hired to handle cash or bank accounts may warrant additional scrutiny if their credit reports indicate late payments in their personal lives, or huge debt loads. But as a tool for analyzing which applicant for a job or a promotion would do the job well, the personal credit report is a dull ax, and should be used only with some refining, such as giving the employee the right to explain thoroughly. In fact, under the FCRA, an employee has the right to know that the report’s findings were used against him or her. It is hard to discover if that requirement was ignored, though.
Posted by marykeating on October 8, 2009 under Pending legislation, sexual harassment |
The Senate, with the help of a number of Republicans, passed the Al Franken Amendment (Senate Amend. 2566) to the Defense Appropriations Act yesterday. (No Democrats voted against it.) The amendment would prohibit government funding to defense contractors and subcontractors if they require employees to arbitrate Title VII claims. The bill states that it prohibits the U.S. government from using “funds for any Federal contract with Halliburton Company, KBR, Inc., any of their subsidiaries or affiliates, or any other contracting party if such contractor or a subcontractor at any tier under such contract requires that employees or independent contractors sign mandatory arbitration clauses regarding certain claims.”
The amendment came in reaction to Jamie Leigh Jones, a Halliburton computer technician working in Iraq. She was drugged and raped by her coworkers. She returned to find her court case barred because she had signed an employment agreement requiring arbitration of all disputes. No one was prosecuted, after various parts of her file were inexplicably lost by Halliburton. Ms. Jones told her story on national television, and also accused a state department employee of sexually assaulting her, too (according to the news clip, he admitted doing so). Ms. Jones’ story is not unique, and claims of rape in the military are rampant.
Title VII forbids discrimination on the basis of sex, race, religion, color, and national origin. Sexual harassment, of which rape is an extreme form, is sexual discrimination under Title VII.
Arbitration has become more popular with employers, since it is a private process, there is no appeal, no legal precedents are set, and it affords no jury trial. The fees are often quite high, despite the commonly heard rallying cry of expensive litigation. For a three-person arbitration panel, the parties must pay by the hour for each of their fees to prepare for and hear the case, as well as hefty administrative fees imposed by the American Arbitration Association. By contrast, agencies such as the EEOC and MCHR are free, and court filing fees are low.
Posted by marykeating on October 7, 2009 under sexual harassment |
The David Letterman revelations have provided interesting commentary on a number of fronts. The bizarre extortion attempt claimed by Mr. Letterman and his lawyers seems out of place at the heights of the entertainment industry. It smacks more of organized crime or the driving plot of a murder mystery novel. Many people have discussed the effect on Letterman’s career, and the difference between his position and that of politicians caught in similar situations.
To an employment lawyer, though, the most interesting part to explore is how his behavior affects the workplace. Mr. Letterman has admitted having sexual relationships with people who work for him. The first nagging question is how consensual these relationships were. The second is how the relationships affect the morale and behavior of the others in the workplace.
These situations arise commonly in the modern workplace. People who work long hours may not have time to meet other people, and they get involved with coworkers. The intensity of the work, or the constant proximity, can lead to affairs. To the employer, these relationships present solvable problems. One coworker should not be allowed to supervise the other, and each should be reminded of the sexual harassment policy. If at any point the relationship becomes nonconsensual, the employer needs to be advised and take prompt action.
But sometimes the “employer” is in reality the same person who is having the affair. Without knowing the television industry, I’d venture to say that if David Letterman wants an employee fired, or retained, he has the power to make it happen. A subordinate may happily begin a relationship with him because of his obvious attractions (and if you don’t see them, just trust me, a woman, on this), but not feel so free to break it off, fearing the effect on her career.
When I prepare employment manuals, I always include some way for an employee to complain about sexual harassment at the highest level of the company. Usually sexual harassment complaints go to a human relations department or the chief executive officer; a company needs an external reporting option, a pressure valve to permit an employee to go outside the company if the top boss is the harasser.
If the relationship is consensual, though, the workers who are not so close to the boss may be jealous of the relationship or the perceived favors to the chosen one. Solving that problem is not so easy. Our federal courts do not consider “paramour preference” to rise to employment discrimination. But the preference can be real, especially when the boss is giving the paramour time off to be with him, or great work assignments. Sometimes the only reasonable choice for talented employees who feel they cannot rise in the company is to leave.
Posted by marykeating on October 2, 2009 under Interesting cases, Race-based discrimination |
It’s the little things that can trip you up. This is true of lots of fields, from sports to carpentry to litigation. The Supreme Court just agreed to decide a case involving one of the critical little things: the statute of limitations for filing a claim of discrimination. The Court famously decided this issue two years ago in Ledbetter v. Goodyear Tire & Rubber. It refused to allow a wage discrimination case by a woman who made less than the men in the same jobs she held. She worked for years without knowing that she was paid less than the men around her; once she learned, she filed a claim of discrimination. Since the original decision to pay her less than the men had occurred years earlier, even though the effects of that decision were perpetuated and exaggerated as the years went by, the Court held her claim came too late.
Congress reversed this decision by amending the law in January; this was President Obama’s first enactment. The Lilly Ledbetter Fair Pay Act applies to wage discrimination. Specifically, it governs a “compensation decision or other practice.” There have been some questions about how far the Lily Ledbetter law goes, but it cannot be stretched to protect the 6,000 unhappy applicants in Lewis v. Chicago.
That case will decide whether African-American applicants for firefighter positions should have filed claims of race discrimination within 300 days of the City announcing a discriminatory practice, or 300 days after the employer uses it. In the Lewis case, Chicago used a test that had a disparate impact against the African-American applicants, putting many in the “qualified” category, while most people in the “well-qualified” category were white. The applicants argued that the test did not accurately measure aptitude for firefighting, and therefore should not be used since it had the effect of weeding out African-Americans, not those who would fail at firefighting.
The applicants filed claims after the City hired from the well-qualified list; the Seventh Circuit held that they should have made claims within 300 days of the announcement of the lists. The United States has filed a brief in favor of the firefighters.
