Posted by marykeating on July 29, 2011 under FMLA, Family responsibility | 
At the same time that employers are wailing about employees taking Family and Medical Leave protected under the FMLA, Congress continues to consider broadening its protection. We are witnessing a cultural divide between employers, used to dictating the schedules of their employees, and employees, clamoring for more work-life balance. Articles constantly tell us that the younger generation, especially, demands accommodation for having a life. They also remind us that the baby boomer generation is in a sandwich, caring for younger children, and aging parents. Sometimes these responsibilities just do not fit with a typical work schedule.
One of the recent tweaks would allow employees to take FMLA leave to participate in or attend children’s and grandchildren’s school and after-school activities. The time is limited to 4 hours in any month, and 24 hours in a year. The bill would also allow, subject to the same time limitations, time off for routine family medical or dental care needs, and attending to the needs of elderly family members, including nursing home visits.
This law is called the Family and Medical Leave Enhancement Act of 2011.
Another proposed amendment should be less controversial. The Parental Bereavement Act of 2011, S.1358, would provide leave to an employee under the FMLA following the death of a son or daughter. Unfortunately, there apparently is a need for this law. It is hard to fathom how an employer could deny a bereaved parent of leave after a child’s death. If the law passes, however, employers with more than 50 will not be able to fire a parent for not returning immediately to work. The bill specifies that the leave must be taken as a block of time. If the employer agrees, the employee may use it intermittently or to take a reduced schedule.
Ultimately, these laws improve our economy. People who can take their children to the doctor without losing a job can pursue a wider array of jobs, and work to their full capacity. As telework becomes more widespread, and checking on email and phone messages after hours becomes required, the line between work and personal life is already blurry. Employers have employees’ attention at home; they should allow them to leave the office now and then.
Posted by marykeating on July 26, 2011 under Discrimination in employment, Economic situation, Pending legislation |
A number of commentators, the EEOC among them, have noted with alarm that employers seem to be ruling out unemployed applicants when they are filling vacancies. Many people who lost their jobs in the recession (you have heard it’s over, right?) remain unemployed. Employers’ insisting on currently hired people just continues the plodding pace of the recovery, and is simply unfair.
A new bill introduced in Congress would outlaw the use of unemployed status when hiring. Under that bill, an employer would be forbidden from considering unemployment, or publicly stating that it would only consider currently employed people for job openings.
As with all failure to hire cases, proof will not be easy. When someone is discriminated against on the job, the events of discrimination may be frequent, or at least witnessed by someone whom the employee knows. When someone applies for a job, he is unlikely to have friends on th inside. Unless the interviewer makes his bias obvious, the applicant can seldom tie his failure to get the job to illegal discrimination.
If the link can be made, though, this law does ease the damage proof. The person who suffered the discrimination can claim $1,000 per day, or the actual damages from the failure to hire, along with compensatory and punitive damages.
Obviously Congress is busy now with other things (or so we hope). But there is probably not a strong constituency against this bill, except that some factions don’t like any new causes of action.
Posted by marykeating on July 23, 2011 under Pending legislation, workplace bullying |
An interesting article about bulling in the workplace reveals what you may already know: If you are being bullied, you are unlikely to be able to stop it, unless the bully leaves your workplace. The original research suggests that almost 2/3 of the people bullied will have to leave their jobs, whether for their own preservation, or involuntarily.
The Workplace Bullying Institute has prepared an excellent action plan, with the first goal to preserve the victim’s health and self-esteem.
If leaving the job is probably inevitable, then the employer should be made aware of the situation, and the employee should insist that it be fixed – all the while, of course, remembering that the employer is unlikely to get rid of the bully. The action plan reminds us that some employers may want to get rid of the bullies. The ones that don’t can’t be trusted to care about the welfare of their employees. And the employee who was targeted for bullying should make a public statement about the situation, leaving in disgust that it was allowed to continue.
The Workplace Bullying Institute is also responsible for the movement to introduce anti-bullying legislation at the state level. Maryland considered the law in March; I testified on its behalf. Although the law did not make it out of committee in Maryland’s General Assembly this year, we are hopeful it will be reintroduced and given a favorable report next session. See also my prior post.
Posted by marykeating on July 21, 2011 under Interesting cases, Wrongful termination |
The Maryland Court of Appeals turned down an employee seeking damages after her employer terminated her. Debra Parks, a sales representative for a pharmaceutical firm, contended that she was fired in retaliation for her complaints about the company’s illegal marketing activities about a new pain drug, including the company’s alleged failure to tell the Food and Drug Administration of the results of a study. The complaint was dismissed before any discovery or trial. The court held that the employee could not bring a wrongful termination claim because she did not identify any clearly defined mandate of public policy that her termination violated.
The Court of Appeals explained again that wrongful termination is rarely a successful claim. It often comes up where an employee is put between the legal rock and hard place: when she has to choose between violating the law and keeping her job. So, when an employee was fired for reporting child abuse, and she was under a legal duty to report the abuse, that was wrongful termination. When an employee refused the property manager’s directive to trespass in leased apartments and snoop through their private papers, her termination was wrongful; another who refused to have sexual intercourse with an employee was protected; to have sex to keep her job was tantamount to engaging in prostitution.
Contrary to what many employees believe, or feel should be the case, whistleblowing on corporate wrongdoing is usually not a protected activity. Unless the employee reports criminal activity to the appropriate authorities, and is fired for that report, the firing goes unredressed.
The allegations brought by Debra Parks had plenty of support. In fact, Ms. Parks also notified the United States government of violations of federal law involving the same drug, and shared in a $85,000,000 payment made by the company to settle the claims with the federal government and some state Medicaid programs. The dismissal of her wrongful termination claim had to do with the lack of a crystal clear public policy protecting the employee, rather than whether the employer was doing the right thing.
Posted by marykeating on July 17, 2011 under Collective rights, Sex-based discrimination, Wage and hour issues |
Many workplaces prohibit or discourage their employees from discussing salaries. A new study by the Institute for Women’s Policy Research, in fact, found that nearly half of the survey respondents were not supposed to talk to coworkers about how much they are paid.
While learning that a coworker makes more can lead to resentment, transparency in pay structure can also help root out and remedy discrimination. The study’s authors point out, for example, that gender-based pay discrimination stands at about 11% in government service, where salaries are often public records, while the 23% gender gap in the private sector continues despite state and federal equal pay laws. The authors quote another study’s conclusion: “It is estimated that discrimination (rather than differences in occupations, industry, experience or education) is responsible for about 40 percent of the wage gap.” (Blau, Francine D., and Lawrence M. Kahn. 2007. ‘The Gender Pay Gap: Have Women Gone as Far as They Can?’ Academy of Management Perspectives, 21,1: 7-23.)
The now famous case of Lilly Ledbetter demonstrates the danger of secrecy. Ms. Ledbetter learned that she had been underpaid for years at General Electric; the Supreme Court said she sued too late, since the first such pay decision, in which she was paid less than her male counterparts, was well out of the statute of limitations period. Congress fixed the problem in early 2009, but no one can claim discrimination without having some facts.
It stands to reason that similar wage gaps affecting minority workers are also perpetuated by such secrecy laws. The good news is that this kind of workplace rule is illegal under the National Labor Relations Act. (My discussion here explains this more). Employees are entitled to discuss work conditions, including, or course, pay, without retaliation. With the law on the side of employees, they just need to get past their childhood admonitions that talking about money is rude.
Posted by marykeating on July 5, 2011 under Employment benefit issues, FMLA, Family responsibility, Sex-based discrimination |
A Maryland state employee filed suit after his termination from the court system. He claimed that he was the victim of race discrimination, and also that his termination violated the Family and Medical Leave Act. The lower courts rejected both contentions, but the Supreme Court has agreed to hear the issue involving his FMLA claim. This blog discussed the case earlier.
That part of the decision related to the immunity of states from private lawsuits in federal courts. Under the 11th Amendment to the Constitution, states cannot be sued in federal courts unless the state has consented to the suit, or Congress has specifically, and legally, removed the immunity.
The Supreme Court earlier decided that Congress removed the immunity for FMLA suits against states when the employee was using FMLA protection to care for another person. The FMLA protected workers in that situation because of ingrained sex discrimination, “the pervasive sex-role stereotype that caring for family members is women’s work.”
The FMLA offers protection to workers taking time off for their own illness or disability also; but according to the Fourth Circuit, the motivation for the law did not implicate any constitutional protections. Instead, Congress found that the economic effect of job loss due to illness was profound, and sought a way to limit it when larger employers were involved. Because there was no constitutional imperative underlying the law, Congress could not validly permit the states to be sued.
The petition for certiorari pointed out cases in which the circuit courts believe that the law has to stand or fall as a unit, therefore all of its parts must be viewed together. Others specifically requested the high court’s guidance.
The Supreme Court does not announce why it agreed to hear a case; it becomes clearer (sometimes) after the decision comes out. The Rehnquist Court upheld states’ rights to be free of federal legislation, but this newer Court may go in a different direction.
Posted by marykeating on July 4, 2011 under Federal wage and hour law |
Franklin Delano Roosevelt announced his four freedoms almost two centuries after the Declaration of Independence. As with the brave rebels in 1776, the focus on independence came at a critical time in our history. In 1941, he set out an expression of basic human rights applicable to the whole human race:
- Freedom of speech and expression
- Freedom of worship
- Freedom from want
- Freedom from fear
The freedoms are all important, but in the FDR era, many minds remained focused on the freedom from want. Unemployment peaked at almost 25% during the Great Depression. (It fell to under 2% during World War II.) In 1938, FDR proposed and signed into law the Fair Labor Standards Act, imposing minimum wages and overtime pay requirements.
That law has become ingrained in our economy, but it contains some exemptions that create hardships. Late last month the Senate and House introduced bills to limit one of the exemptions. That exemption has relieved employers of the requirement to pay minimum wage to people providing home care or companionship services to disabled, sick or elderly people.
Called the Direct Care Job Quality Improvement Act of 2011, the law would allow the exemption only for occasional, casual work. Your teenage babysitter can still be paid less than minimum wage (if indeed you can find such a person), but not someone who works for a home health agency, someone who does this work for a living, or who works for someone who needs such care more than five hours a week, or more than twelve weeks in a row. (These restrictions are designed to avoid a gaping loophole in which an agency sends different people on different days.)
Congress’s findings of the needs for the new law include the statement of the expanding need for these workers (now serving 10,000,000 people), and the prediction of a serious shortage of workers able and willing, without even minimum wage protection, to take on the work. When one is not in dire want, the other freedoms are glorious parts of our nation’s heritage and hope for the future. But if our home workers can’t live, and we can’t get a worker to help us with daily living requirements, it is hard to focus on the abstractions like the freedom of speech or religion.
Happy Fourth of July.
