Posted by marykeating on March 31, 2010 under Economic situation, Unemployment compensation | 
The federal government incentive program is great, and there is even better news from Maryland. On Friday, the Governor leaped onto the still-hot-off-the-presses bill, and signed into law a program providing tax credits of up to $5,000 to employers adding the unemployed to their payrolls. The idea is to jumpstart the process of moving people into jobs that employers were not quite sure they were ready to fill.
The eligible employee must have been receiving unemployment benefits, or exhausted them in the last year, and the position filled must be newly created or vacant for six months or more. People who were denied unemployment benefits therefore do not qualify for the subsidy. Hard luck for them, since they have been without any compensation, but this incentive is designed to trade the burden of unemployment benefits for a tax break. A few other restrictions (designed to avoid loophole jumping) are detailed in the Department of Labor, Licensing and Regulation’s flyer.
Posted by marykeating on March 30, 2010 under Economic situation |
March came in with a lion’s share of new legislation. On the 18th, the President signed the Hiring Incentives to Restore Employment Act, with the happy acronym “HIRE” Act. Under this law all employers except public entities receive a credit from the United States against the FICA taxes owed by the employer for eligible newly hired employees. FICA taxes amount to 15.7% of an employee’s wages; the employer pays half, and the employee pays half, which is withheld from wages.
For the rest of this year, new hires who were unemployed for at least two months and are not replacements for other employees are eligible for the tax exemption. This provision is intended to prevent employers from firing an employee for no reason other than to hire someone eligible for the tax incentive. Employees who quit or are fired for cause.
Employers who keep the new hires for at least a year are eligible for $1,000 in a retention credit next year.
Posted by marykeating on March 27, 2010 under Sex-based discrimination, mandatory arbitration |
Jamie Leigh Jones filed a federal lawsuit for damages, charging that while stationed in Iraq, her co-workers at Kellogg Brown and Root, then owned by Halliburton, drugged and raped her. Jones’ employer’s insistence that all of her claims must be arbitrated led to the successful passage of the Franken Amendment, reported here.
KBR’s argument focused on Jones’ employment agreement, which called for arbitration of employment disputes. After two years of litigation, Jones convinced the Fifth Circuit that some of her claims need not be arbitrated. Those claims involved the civil counts arising out of crimes; the court held that Jones’ bedroom, where she was raped, was not part of her “workplace, even though it was provided by her employer.
KBR asked the Supreme Court to intervene. Courts frequently give a great deal of deference to arbitration clauses, regardless of the disparity in power between the contracting parties. Employees may be required to waive their rights to a jury and appeal, and submit their claims to a single or trio of arbitrators rather than experienced judges. Arbitration is popular with employers for those reasons. But then the Franken Amendment passed. Now both sides have consented to have the case withdrawn from the Supreme Court’s docket.
Jones’ case is set for May.
Vail said he believes the case was withdrawn because of the so-called Franken Amendment. Following publicity about Jones’ case, Congress passed a defense appropriation last year with a provision advocated by Sen. Al Franken, D-Minn. The measure prohibits any contractor receiving federal defense funds from enforcing a contract that mandates use of arbitration to resolve civil rights, harassment and other types of disputes.
Posted by marykeating on March 24, 2010 under Employment benefit issues, Pending legislation |
Congress keeps tweaking COBRA subsidies to deal with the sustained unemployment rate. In December the COBRA subsidy was extended until the end of February. People eligible for the subsidy will have to pay only 35% of the monthly premium, while the employer pays the rest, and takes the cost of the 65% premium as a credit against withholding taxes. Congress added a month, and has not been trying to extend it further. Last week the House of Representatives passed a bill to extend COBRA subsidies until the end of April. Meanwhile the Senate passed a bill to extend the subsidy period through to the end of 2010. Both bills must be passed by the other house, though it looks as though there will be no problem making the April extension into law in time. American Workers, State and Business Relief Act of 2010.
Posted by marykeating on March 23, 2010 under Federal wage and hour law, retaliation |
The Supreme Court agreed yesterday to decide a case of critical importance to retaliation claims under the federal wage law, the Fair Labor Standards Act. The request to the Supreme Court presented one question for review:
Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
Anti-retaliation laws give powerful protection for employees who either complain about their own discriminatory treatment, or someone else’s. Often the proof available to establish sexual harassment, for example, is too disputed for the plaintiff to win, but the employer’s retaliatory reaction is crystal clear.
For historical reasons the language of the Fair Labor Standards Act is different. That law dates from the Great Depression, while the Civil Rights Acts from the 60s, 70s, and 80s broadened the language defining retaliation.
In the case before the Supreme Court, a Wisconsin factory worker complained to his supervisor and to the company’s human resources department that the company’s location of time clocks was illegal. The placement of the clocks led to employees not being paid for time spent putting on and taking off protective clothing and Kevin Kasten warned his company, using the company’s reporting procedures, that it was acting illegally. He was warned, suspended and fired. The company lost in the trial court but convinced the appeals court that oral complaints cannot be “filed,” as required by the statute. 
The Supreme Court accepts very few cases every year, but one of its major criteria is whether there is a “split” in the Circuits, meaning that appellate courts of equal stature interpret the same law in opposite ways. This issue has split the Circuits, with many agreeing that to “file” a complaint does not require a piece of paper.
It is never safe to guess why the Supreme Court takes on a case, or how the case will come out. Still, it will be helpful to get this issue settled. If the Court upholds the Seventh Circuit, and permits retaliation for oral complaints of wage violations, the outcome will likely be more retaliatory firings, but also perhaps more union campaigns to combat the perceived unfairness, and more employees complaining in writing or to the Department of Labor when they believe there are wage and hour missteps.
Posted by marykeating on March 20, 2010 under Wage and hour issues |
Wage theft is a common problem, afflicting low income workers disproportionately.
Wage theft may take such forms as a refusal to pay a day laborer, bouncing a weekly paycheck, or failure to pay overtime. Unfortunately, it is not easy to enforce wage laws when relatively small amounts are involved. Some workers do not complain for fear of retaliation. Others find themselves deprived of their last week of wages after they quit or are fired, but the costs of pursuing a claim of a few hundred dollars make the effort too difficult for most people. In addition to filing and service fees, enforcement of a judgment includes delays and costs. For example, filing and serving a bank garnishment costs at least $18, and then more filings are required to obtain the funds. Moreover, courts often impose too high a standard of proof for employees, who do not routinely copy their timesheets or time cards, and therefore their testimony on the number of hours they worked does not carry the burden of proof.
Employers engaged in a pattern of wage theft gain an illegitimate competitive advantage. Therefore, the effort to stop wage theft should gain support from workers as well as honest employers. A new initiative in Florida may provide a useful template for solving the typical impediments to
Miami-Dade County, Florida, enacted a county-wide ordinance designed to streamline a process for complaining of wage theft. The county has a high proportion of immigrants and low-paid workers. After a year of work by the South Florida Wage Theft Task Force, working with the South Florida Interfaith Justice group, the ordinance passed unanimously. One objective was to make the process easier than using small claims court. There is no filing fee, a claim may be made and pursued by the employee or someone acting on his behalf (not necessarily a lawyer), and service of process is made by the County. Under the ordinance, if the employer does not pay and a hearing is required, the successful employee receives an order awarding doubled (liquidated) wages dues, which are then tripled as a penalty for the violation. In addition, the employer owes interest on the amount to both the successful employee and the County.
The design of this ordinance favors early conciliation (the employer can avoid some of the costs), easy access by the employee, and rapid resolution, that is payment to the employee. Other cities are considering such legislation, and San Francisco already has one on its books. The proliferation of this kind of legislation would even the playing field for workers and employers alike.
Posted by marykeating on March 19, 2010 under Court news |
Photograph by Franz Jantzen, Collection of the Supreme Court of the United States.
The Supreme Court of the United States heads the most publicity shy branches of government. The politicians in Congress need publicity for reelection, and many seem to crave it. The President has no choice but to live in a fishbowl. But the Supreme Court Justices are appointed and have no need for reelection or popularity. Some probably shy away from publicity because they are naturally scholarly types, and others do so because judicial ethics and customs put a tight rein on what judges say in public. To date, there is no videotaping of arguments, and the Justices have not looked kindly on lower courts’ admission of cameras into the courthouses.
Even with these limitations, though, the Supreme Court building is open to the public, and welcomes anyone to attend oral arguments on a first come-first serve basis. The building itself is magnificent, and the courtroom especially is awe-inspiring (and not very large). Regardless of whether one is inclined to visit, the newly redesigned Supreme Court website is terrific.
Information to guide visitors provides thorough information about the argument calendar, what cannot be brought into the building, and how to get to the court. Without leaving your desk, researchers, or just interested citizens, can find lots of information including opinions, transcripts of arguments, and sources for briefs. (The Supreme Court link for recent briefs is not working as of this writing.)
Posted by marykeating on March 13, 2010 under Age discrimination, Pending legislation |
In a down job market, discrimination claims rise. One view is that people who are laid off anyway have nothing to lose by filing a claim. Another, and one I’m more partial to, sees the downsizing workplace as indulging in stereotypes of what the efficient future worker looks like. And age discrimination is the frequent result of a stereotyped, biased, look at “what this place needs to stay competitive in the 21st century.” Someone born way back in the mid-20th century, when they didn’t even have personal computers, can be muscled aside as necessarily lacking in technological skills. And someone without a college degree cannot possibly be as good as one with a degree. Application of these criteria on a group, rather than individual, basis in choosing who is laid off can lead to a disproportionate impact against older workers.
The Supreme Court allows an employer to win an age discrimination case by bringing up a “reasonable factor other than age.” Smith v. City of Jackson, 544 U.S. 228 (2005). In the scenario above, an employee who truly lacks necessary technological skills for his job, regardless of his age, is a reasonable candidate for the reduction in force. But these factors have to be applied in an objective manner so as to avoid stereotyping.
The Equal Employment Opportunity Commission highlights this dichotomy in its proposed rules on reasonable factor other than age. The EEOC’s rules would require that the criteria used to determine the layoffs are objectively reasonable, and that they strive to ensure that they are applied in a way that avoids, as much as possible, subconscious discrimination. For example, the EEOC warns that “criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills” should be backed up by training in judging each employee’s performance level, and how to avoid age-based discrimination in doing so. 75 Fed. Reg. at 7217. When managers are given too much discretion, and little training on the application of these criteria, the reasonable factor defense weakens.
Importantly, the EEOC addresses the common issue of a company firing its most expensive workers. This looks objectively reasonable, but the EEOC warns that when it has a disproportionate impact on older workers, the company should also consider the revenue that the highly paid people bring in when deciding whom to cut.
These rules are open to comment until April 19.
Posted by marykeating on March 3, 2010 under Court news |
The Senate voted 99-0 to approve the nomination of Barbara Keenan to the Fourth Circuit Court of Appeals. As reported here before, the pace of replacement judges had been glacial. The Fourth Circuit has an enormous workload, and part of the consequence is that many opinions are unreported and short. Reported opinions are helpful to litigants and their lawyers as precedential. This is especially true in the employment arena, which changes rapidly, and is so fact-dependent. The Fourth Circuit is historically quite conservative; but when the Supreme Court changes the interpretation of discrimination laws, the Fourth Circuit has to react.
Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit
Posted by marykeating on March 2, 2010 under Sex-based discrimination |
The EEOC just settled a massive sex discrimination case against Walmart. Walmart was accused of refusing to consider women for order filling positions in its Kentucky distribution center, telling applicants that these jobs were not suitable for women. And yes, in case there is any question, these acts occurred in the 21st Century. Walmart will pay $11.7 million and the taxes payable on that amount, plus up to $250,000 in the administrative costs of distributing the money.
Walmart has been the defendant in a number of other cases ranging from disability and race discrimination to wide ranging allegations that its managers required workers to work off the clock. But it has moved past the boycott days, when the systematic refusal to pay benefits and keep hours low put many of its workers on state medical assistance and food stamps.
The EEOC’s website notes that it is hiring more investigators, and it appears to be going after bigger fish, making bigger waves in the fight against discrimination. Its settlements are not secret, and require the employer to be under scrutiny for a period of time, and to make up for past discriminatory actions. In the warehouse case, Walmart will fill the first 50 open positions with women, then give every other position to a woman, and then every third. After those first 150 positions, it is hoped, management at the facility will be used to women working in the warehouse, and will apply neutral standards.
