Posted by marykeating on October 31, 2011 under Sex-based discrimination, retaliation | 
Most employers have policies against discrimination and harassment based on protected categories, such as race, sex, religion and national origin. To be effective, and to provide effective defenses against lawsuits, the policies often require supervisory personnel to report anything observed or reported to them that looks or smells like discrimination or harassment, regardless of whether an employee actively complains. The policies also require supervisors to pass along actual complaints. When they work well, these policies can minimize discriminatory cultures, and stop harassment before it ruins someone’s career. When reports of discrimination enrage the perpetrator or other managers, however, the fallout can be widespread and expensive.
In a recent Montgomery County case, for example, the employer retaliated against an employee for reporting sex discrimination. The harassment victim’s supervisor alerted the higher-ups of the retaliation. Soon thereafter the 30-year employee (the one reported her subordinate’s complaint and her observation of the retaliation) experienced retaliation herself. Her supervisor and upper management demoted her, and transferred her, increasing her daily commute from 4 to 84 miles. The jury responded to her allegations that she was fired for opposing a discriminatory practice, and awarded $650,000.
Posted by marykeating on October 29, 2011 under Economic situation |
A study published in the New York Times shows that the long-term unemployed are disheartened, but despite their troubles they continue to believe in the American dream.
Many have emotional and mental health problems, in addition to the obvious financial issues: joining social security early, with the lifelong diminution of benefits, facing foreclosures, giving up dreams of college education for their children. The unemployed population reported more pessimism about the economy than Americans as a whole. Still, more than half believed that they would find a job, some believing they’d find a good job, in the next year. Part of the optimism seems to come from the third of those who are being retrained into a different career path.
Posted by marykeating on October 21, 2011 under Economic situation |
The Department of Labor announced its intention to use and research the use of social media in linking people with jobs. The media reports that there are upwards of a million unfilled jobs in the country, some of which stay vacant for a long time. When jobs require specialized skills, their availability needs to be advertised widely. For less arcane jobs, facebook might help connect unemployed people and employers with needs. It can’t hurt, anyway. At the least, it helps facebook in its effort to become indispensable to our lives.
Posted by marykeating on October 18, 2011 under Discrimination in employment, Pending legislation |
Every candidate talks about taxes, and how the tax code is full of loopholes. One area of tax unfairness involves taxation of employment discrimination damages. An employee who complains of employment discrimination often has to wait a few years before the case is heard. In the meantime, her damages have piled up. If the employee obtains a settlement or an award at trial, it often includes (1) damages to compensate for several years of unpaid or underpaid compensation, and (2) non-economic damages, such as emotional distress. Once the money is paid, the employee is taxed on the lump sum as though it were all earned as wages in a single year. The tax bite is hefty.
The Civil Rights Tax Relief Act, introduced last week, is designed to make the tax treatment fairer in two ways. One would treat emotional and physical injuries caused by the discrimination as not taxable. This is how personal injury cases treat monetary compensation for pain and suffering. There is no logical reason why money for an auto accident should be tax free while money for discrimination should be taxed.
The second prong would let the employee use income averaging to stretch out the payments that are intended to make up for lost compensation. The employee would pay tax on the backpay and front pay, but all at the tax rate that would apply if the income were apportioned by year. In other words, the employee is not immediately sent to the top tax bracket for the one year in which he received the payment meant to compensate for seven years of discrimination.
Interestingly, the bill enjoys the support of both employee advocates and business groups. Settlements and sometimes awards are made with the tax consequences in mind. If the tax consequences are eased, settlements will be easier to reach, and can be lower if the tax consequences are not so severe.
Posted by marykeating on October 6, 2011 under Collective rights |
The National Labor Relations Board announced a required poster to be displayed by all covered employers, originally effective in mid-November. The requirement remains controversial. The poster would inform employees of their rights under the National Labor Relations Act to form unions, consider joining unions, and talking about such issues in the workplace. Employers have been up in arms, and the United States Chamber of Commerce has filed suit to block it. The suit is filed in the U.S. District Court for the District of South Carolina, and claims that the rule exceeds the NLRB’s power, as well as violates the First Amendment rights of employers, by forcing them to espouse views with which they do not agree.
The NLRB now states that it wants to enhance education and outreach before enforcing the poster requirement. The new effective date is January 31, 2012.
Posted by marykeating on October 4, 2011 under Employment benefit issues |
Many employers offer short and long term disability benefits as part of the package of fringe benefits. Typically, but not always, employers pay the benefits during the short-term disability period. If the employee is still disabled at the end of that period (typically three months), then an insurance policy kicks in and pays the benefits for the remainder of the disability period.
Federal law controls administration of benefit plans, such as disability, health, and pension plans, under a law known as ERISA. But states are free to regulate insurance. Therefore many fringe benefits have both state and federal laws affecting their content and their administration.
Maryland passed a law this year limiting the administration of disability insurance policies. Under this new law, which went into effect on Saturday, a disability insurance in Maryland may not state that the insurance company has the sole discretion to interpret the terms of the policy. This kind of clause has been used to prevent many people from getting disability benefits. It has often meant that an insurance company would interpret the definition of disability to exclude someone from coverage. I have represented individuals who have paid premiums for years, whose social security disability applications were granted, but who were denied benefits under an insurance company employee’s stretch of the English language. Then, because of the reservation of the sole discretion to interpret its own language, the insurance company wins in court. In Maryland, this kind of unfettered discretion will not be acceptable for new or renewed policies. Despite the mundane language of the law, its attempts to curb abuses could have an enormously beneficial effect on disabled Marylanders.
