Posted by marykeating on November 23, 2009 under Discrimination in employment | 
On Saturday, the anti-discrimination portions of the federal Genetic Information Nondiscrimination Act of 2008 (GINA) became effective.
Title II of the law applies to employers with 15 or more employees, the threshold for race, sex, religious, and other forms of discrimination. Employers are now forbidden from using “genetic information” in making employment decisions, and forbidden intentionally acquiring or disclosing such information.
Sometimes genetic information is akin to health information. If the employer has private health or disability information in its possession, it must be segregated and protected in locked file cabinets, and disseminated on a need to know basis. Thus, the human resources department may be able to access the information to engage in a discussion about accommodating an employee’s disability, but a supervisor or coworker is not allowed to snoop into an employee’s health file.
But the GINA law goes further than requiring segregation of health documentation. Genetic information is not only an intensely private matter, but it is never considered relevant in the workplace. For example, an employee’s health status can be material to the employee’s request for medical leave or a reasonable accommodation, or it may form the cornerstone of a worker’s compensation claim. But an employee’s gene making her more susceptible to breast cancer does not affect her ability to come to work and do her job. It may be interesting to the health insurance carrier, however, which may want to raise premiums for the company knowing that the employee has a potential susceptibility.
When the law was first introduced, Representative Louise Slaughter of New York shared the following data:
“Health care professionals are also hesitant to make their genetic information available. In one survey of genetic counselors, 108 out of 159 indicated that they would not submit charges for a genetic test to their insurance companies primarily because of the fear of discrimination. Twenty-five percent responded that they would use an alias to obtain a genetic test so as to reduce the risk of discrimination and maximize confidentiality. And, 60 percent indicated they would not share the information with a colleague, because of the need for privacy and fear of job discrimination.”
She also stated that two major employers had secretly obtained and tested genetic material from employees. This law will prohibit both secret and overt genetic testing and genetic discrimination, using the same remedies as are available to employees under Title VII.
Posted by marykeating on November 20, 2009 under Federal wage and hour law, Maryland wage law |
As previously mentioned here, Maryland’s Workplace Fraud Act imposes new penalties on employers who misclassify employees as independent contractors. At a talk before the Maryland State Bar Association’s Labor and Employment Section’s annual meeting recently, representatives from the state’s Department of Labor, Licensing and Regulation explained the Department’s focus on the landscaping and construction industries. Because studies had indicated that these industries were particularly likely to misclassify employees, the new Maryland law gave additional teeth to the Department in pursuing employers found to engage in a willful pattern of classifying employees as independent contractors. The harm to employees include the lack of worker’s compensation protection, the lack of unemployment benefits, the burden of the self-employment tax on employees, and the inapplicability of anti-discrimination laws. According to the State, more investigators are on the job. Employers should expect more audits of their workforce, as well as site visits.
The federal Department of Labor recently made a similar pronouncement. Yesterday, Secretary of Labor Hilda Solis stated:
“There is no excuse for employers who disregard federal labor standards – especially those that are designed to protect the most vulnerable in the workplace. The failure to comply with these basic labor standards means that workers are not receiving the money they have earned. It is both an economic issue and a fairness issue. America’s workers should rest assured that protecting worker rights is a top priority at the Department of Labor. To make good on that promise, I have hired an additional 250 new wage and hour investigators, a staff increase of more than one third, to ensure that we promptly respond to complaints and can undertake more targeted enforcement.”
Both federal and state laws permit an employee to obtain additional damages from an employer who willfully withholds wages or misclassifies an employee. Employers now need to watch employees and the government watching their practices.
Posted by marykeating on November 11, 2009 under veterans' discrimination |
Veterans have long received mixed welcome upon their return home from service. Many of us remember the Vietnam era veterans’ difficulty in reassimilating, facing as they did receptions ranging from indifference to outright hostility. These days we give more lip service to honoring the sacrifices of this country’s service members. But whether we truly support our troops is open to question when such a large portion of our homeless population consists of veterans, and the medical benefits available for their specific needs is often denied.
One way we can, and must, support veterans is in the workplace. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) forbids employers from discriminating against individuals because of their service (or application to serve) in the uniformed armed services. Briefly, the law requires employers to rehire a returning service member into the same job they held, or a job up the ladder that he or she would have held if not for the break in service required by the military. If the service member needs additional training to meet the requirements of the old or the escalated job, the employer has to provide it. In addition, an employer may not refuse to hire or promote someone because of his membership in, for example, the National Guard. The reemployment requirements apply to any service member whose cumulative absences are less than five years, with exceptions.
In addition, returning service members with disabilities must be accommodated, if a reasonable accommodation is available.
The law asks service members to give reasonable notice of their being called to duty, and requires them to return promptly to work if they were gone for no more than 30 days. If they are gone longer, or return disabled, they have more time to notify the employer and claim their old job. If the absence is up to six months, they have two weeks to return; if more than six months, they have 90 days to notify the employer that they are ready to return to their old job.
This law can pose hardships on the employer. First of all, it applies to all employers, regardless of size. So a company of three can be in the position of losing an employee for short or long-term duty, and if the military does not give much warning of deployment, then the employer does not get that warning either. Upon return, the service member is entitled to the old job back; the replacement may need to be fired. Second, with the long-running wars in the middle east, return deployments are common. Sometimes there is very little notice that a person is being called up. Congress has decided that the burden of the uncertainty is going to be shared by the service member and his family, and the employer who will have to deal with the occasional tours of duty.
Employers have to post USERRA rights notices. As with other discrimination statutes, retaliation for exercising rights or standing up for other employees’ rights is actionable.
Posted by marykeating on November 10, 2009 under Court news |
Yesterday the full Senate finally confirmed Judge Andre M. Davis to the Fourth Circuit. As reported here before, the seat that Judge Davis will take has been vacant since Judge Murnaghan’s death in 2000.
This opens a seat on the United States District Court for the District of Maryland. The Senate has a lot of nominations before anyone will even be placed for a vote for this seat. The scuttlebutt around Baltimore is that many very well-qualified jurists will apply for the seat, and probably some practitioners as well.
Posted by marykeating on November 7, 2009 under Age discrimination |
Today’s New York Times editorial page presents a brief history of the second-class status of age discrimination claims. Although Congress is considering overturning the recent Gross case out of the Supreme Court, which erected a much higher proof standard for age discrimination claimants (see my earlier discussion of this case here http://marylandemploymentdevelopments.com/2009/07/16/age-discrimination-is-up-so-is-the-proof-requirement/), the problem with age discrimination has deeper roots. Adam Cohen points out that the skepticism over whether older workers deserved protection prevented age’s inclusion in the original Civil Rights laws in 1964. Ever since, the cases have been routinely met with judges’ labeling age-biased comments as “stray remarks.” “You are too old for this damn job” does not sound like a stray remark to me, but the defense will continue to characterize these comments thusly until Congress speaks clearly. Federal judges, ironically, are not forced to retire at any particular age.
Posted by marykeating on November 6, 2009 under Gender orientation discrimination, Pending legislation |
As reported here, the Employment Non-Discrimination Act, or ENDA, is one of the Obama administration’s top priorities. The bill would outlaw discrimination on the basis of gender identity and sexual orientation. Those categories are protected under Maryland law, but not federal law yet. There won’t be action this calendar year. It’s hard to tell whether the defeat of the same sex marriage proposition in Maine will affect prospects of this law.
Posted by marykeating on November 5, 2009 under Court news |
This blog has previously discussed the difficulty of delivering justice to this region, in light of five openings (out of 15) on the Fourth Circuit Court of Appeals. Two nominees have been given the green light by the Senate committee, but await full votes by the Senate. The Senate, of course, has the constitutional role of advising and consenting to judicial appointments. This role gives it the power to hold up appointments. The dusty seat reserved for Judge Andre M. Davis has been vacant more than ten years.
Well, at least President Obama is doing his part. Yesterday he nominated two North Carolina judges to the Fourth Circuit. President Clinton had earlier tapped Judge James Wynn Jr. of the North Carolina Court of Appeals; Judge Davis had the same experience of having his nomination die after a Republican took the White House. Judge Wynn is also African-American. The Fourth Circuit’s geographical region has a high population of African-Americans, so adding to the diversity of the Court would be fair and add to its perceived legitimacy. The other nominee, Judge Albert Diaz, is Hispanic. There are no current Hispanic members of the Court. More to the point for my clients, Judge Diaz has been working as a special trial judge for complex business cases. Often judges are chosen from the ranks of former prosecutors, and therefore their civil experience is meager.
Posted by marykeating on November 1, 2009 under Court news |
Barbara Keenan earned unanimous approval from the Senate Judiciary Committee to take an open spot on the Fourth Circuit Court of Appeals. Judge Keenan has been a judge in every level in Virginia state courts, according to Legal Times. As reported here earlier, the Fourth Circuit has long been understaffed, with one of its openings vacant for ten years. Judge Andre Davis, from the U.S. District Court for the District of Maryland, has been waiting for a vote from the entire Senate since June.
