Posted by marykeating on December 31, 2011 under Sex-based discrimination | 
The highest court in Maryland just reinstated a jury verdict in favor of an employee fired by Giant of Maryland after complaining of sex discrimination. A truck driver for the grocery chain, Ms. Taylor developed a condition in which she experienced unexpected heavy menstrual bleeding, which would make her absent or late to work without warning. Giant insisted that the employee take an independent medical examination and, according to Ms. Taylor, to comply with the doctor’s recommendations for treatment, up to and including a hysterectomy, or be fired. Ms. Taylor claimed (and the jury agreed) that Giant did not make male employees with health-related absences submit to a medical examination, rather than accept their doctor’s explanations.
The intermediate appellate court reversed the jury verdict, leading to an appeal to the highest court.
The Court of Appeals rejected the employer’s efforts to have the court disregard the comparisons with her male counterparts. Giant complained that the four men identified by the plaintiff were not sufficiently similar, and therefore their superior treatment could not support a sex discrimination claim. The Court disagreed. The plaintiff’s failure to identify a man with the same supervisor who had a gender-specific ailment that caused him to be late or absent, and that was not subject to a Department of Transportation physical examination, did not doom her case. There will always be differences between two employee’s situations. Instead, it is enough to identify a male comparator whose treatment is enough to cast suspicion on the employer’s stated reason for requiring the medical exam.
The opinion also rejected the employer’s appeal of the retaliation verdict. The decisionmakers at Giant denied knowing that Ms. Taylor had filed a discrimination claim, and therefore, they said, her firing could not have been in retaliation for her filing. The employee produced evidence that the discrimination claim was transmitted to Giant’s human resources department, and that an employee had knowledge and had taken action to try to mediate the claim. The court said that the jury could have disbelieved the denials by other Giant employees that they did not know of the filing.
Posted by marykeating on December 28, 2011 under Maryland wage law, Wage and hour issues |
The Fourth Circuit Court of Appeals decided against an employee seeking to recover unvested stock options after her termination. The employee had sued under the Maryland Wage Payment and Collection Act. She contended that a portion of her deferred compensation should not have been withheld by her employer. Under an optional plan, the employee had agreed to defer a part of her compensation, which the employer matched. The matching portion, however, did not immediately vest. Unless the employee’s termination was caused by her retirement, death or disability, they did not vest for seven years. Therefore, upon her termination, the employee was paid only her portion of the compensation for the most recent years.
Although the court decided that New Jersey law applied, according to the parties’ contract, it also noted that Maryland law would not have given the employee her unvested stock options, since that is all she bargained for. In other words, this deferred compensation plan was designed to leave a lot of the compensation on the table, unless someone stayed with the employer for many years.
This decision does not bind a Maryland court from making a contrary decision, but to date these unvested benefit issues have not gone well for employees.
Posted by marykeating on December 16, 2011 under veterans' discrimination |
Last month Congress unanimously passed and the President signed the Veterans Opportunity to Work (or ”VOW “) to Hire Heroes Act of 2011. It’s a very catchy name, and provides both a carrot and a stick for employers. First, employers get a tax credit for hiring an unemployed veteran. The longer the period of unemployment, the better the tax credit, up to $9,600 for a disabled veteran out of work for more than six months.
Second, the law clarifies that a person’s military status supports a claim of hostile work environment. Hostile work environment based on sex, race, and national origin, among other things, violate the country’s civil rights laws, based on court recognition that a hostile work environment changes the “terms and conditions” of employment.. But recently a federal court refused to recognize a hostile work environment based on veteran or military status. Now military status is clearly entitled to protection from harassment.
With veterans suffering a much higher than normal unemployment rate, this law’s incentives may help returning military personnel reintegrate into civilian life.
Posted by marykeating on December 14, 2011 under Economic situation, Sex-based discrimination |
A new coalition has formed to help women adversely affected by the sluggish economy. The earlier reports that the recession hurt men more than women has been superseded by the new reality. More layoffs have occurred in the public sector, which employs a lot of women; for whatever reason, moreover, the rate of layoffs of women exceeds their representation in the public sector. Since the recession ended, the job gains have helped men more than women.
There is no reason for a gender war over the small economic gains, and that is not the coalition’s purpose. It is true that in a one-parent household the parent is more likely to be the mother, however, so the job loss affects multiple people. The coalition “HERvotes, seeks to emphasize the importance of extending unemployment benefits, and providing affordable health insurance.
Posted by marykeating on December 6, 2011 under Federal wage and hour law, Interesting cases |
The Fair Labor Standards Act has governed the provision of minimum wages and overtime pay since the 1930s. A problematic area remains the “exemptions” to overtime entitlement. One exemption provides that “outside sales” staff need not be paid overtime pay. An employee working in an office on the phones is not exempt. But someone traveling around to make sales or obtaining orders or contracts for services or use of facilities is not entitled to overtime. Perhaps the original idea was that the outside sales people were motivated by their commissions, not the promise of an hourly wage.
Modern life has led to many hybrid type jobs. One is the pharmaceutical sales representatives employed by drug companies to introduce physicians to their products. Sales representatives have urged courts to allow them overtime, on the basis that their work is primarily promotional. The Supreme Court has agreed to address the question: “Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.” The case is called Christopher v. SmithKline Beecham.
The case comes up in the context of a disagreement between Courts of Appeals. Some agree with the Department of Labor interpretation that pharmaceutical sales representatives are entitled to overtime if they work more than 40 hours in a week. They are not selling to physicians, they are attempting to influence their patterns of prescription. The pharmaceutical industry is also interested in a resolution to this issue.
