Posted by marykeating on February 9, 2010 under Employment benefit issues, Uncategorized, disability discrimination | 
The Americans with Disabilities Act has faced a formidable battle in achieving its original goals of outlawing discrimination, and improving the employment rates for disabled people. Originally signed into law by the first President Bush, the ADA forbade discrimination against individuals who had a disability, so long as they could perform the essential functions of their job, with or without a reasonable accommodation. One would have predicted that the “reasonable accommodation” language would have led to the most controversy, but in reality, the courts systematically limited the availability of ADA’s protections by narrowing the definition of “disabled,” so few employees qualified.
Congress made some helpful changes last year, specifically legislating around one Supreme Court decision. Yet it remains a difficult law, in part because of the often cited principle that “attendance is an essential function” of nearly every job. So people who are disabled and need a period of recuperation or hospitalization are especially vulnerable when strict attendance policies lead to termination. Often they are told that light duty is not an option (though they report that other people do get light duty), or that they cannot have more leave time.
The EEOC has been pursuing Sears Roebuck for just such a discriminatory policy since 2004. Last week, it reached a large settlement, $6,200,000 with the retailer, which will benefit 235 of its former employees. All 
complained that they were damaged by Sears’ inflexible policy requiring an employee to return to work within one year after an injury, and failed to accommodate their disabilities to enable their return. In addition, Sears is ordered by the Court not to discriminate in the future, must post a notice in its stores for three years explaining the consent decree, and is required to report regularly to the EEOC on the progress of its accommodations of injured employees. The consent decree also alters Sears’ policies of communicating with its disabled employees, and requires a centralized leave management team to oversee the requests for and grants of accommodations.
The success of this litigation may swing the pendulum away from shutting the doors to injured or ill employees. Whether the motivation is fear that the “damaged goods” will never do the job efficiently, that health insurance premiums will rise, or simply to punish the person who has taken “too much” of the sick leave benefits offered, employers will have to watch their policies and practices in light of the Sears decision.
Posted by marykeating on October 19, 2009 under Uncategorized, Wage and hour issues |
The Fair Labor Standards Act requires hourly employees to be paid for time worked, and for time during which the employer “suffers or permits” the employee to work. Many disputes arise over the right to payment for time spent putting on protective clothing, reaching the workplace (for example, going through security and walking to the timeclock), and waiting time. Some rules are clear, and others still await court clarification. But today I’m going to discuss the right to be free from retaliation for complaining about a practice that may violate the law.
As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.
This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.
In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.
Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.
Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.
Posted by marykeating on September 29, 2009 under Uncategorized, Workplace privacy |
As I mentioned before, an employee can’t be certain that use of the employer’s computers will remain private. Employers are worried about the loss of trade secrets, such as customer lists and pending contracts. They also are concerned by the amount of nonproductive time that people spend on the computer. A new study just reported that one-third of the large employers surveyed have personnel dedicated to reading outgoing email. A higher proportion report monitoring outbound email. Employers also monitor social websites, and look for evidence of their employees leaking sensitive information, or badmouthing them.
Email is seductively easy, and that delete key seems permanent. Yet deleted files are not too hard for an expert to recover, and outgoing emails can be intercepted and copied if the employer’s computer is set up that way. Personal messages should be sent from home, or from a personal hand-held device.
Even if the employer does not actively monitor outgoing email, employees need to separate their private and job lives. This is more difficult when the employee’s main computer is a company-provided laptop. But I’ve seen many instances when an employee is suddenly terminated, and cannot get access to saved emails, personal financial information, list of favorite websites, and other personal letters or writings. The employer now has access to all of that, and may well decide to take a look. I’ve also seen employees fired for personal use of the employer’s computer systems, especially if the personal use includes dirty jokes, pornography, racist jokes, and similar content that makes the employer nervous, for good reason.
Protect yourself – keep your private life private, and review that company policy manual on computer usage.
Posted by marykeating on August 30, 2009 under Uncategorized |
This blog was just featured by Tom Mighell’s inter-alia collection as the blawg of the day. If you are not familiar with Tom’s work, the website is up-to-date, comprehensive, and valuable. The email by subscription “Internet Research Weekly” is always entertaining, full of blawgs, tips with software, and at least a couple of great ways to waste your time on games or puzzles. Thanks for all the education you’ve provided, Tom, and thanks for publicizing this site.
Posted by marykeating on July 15, 2009 under Uncategorized, Wage and hour issues |
You have seen this posted for two years, since Congress began implementing incremental minimum wage increases two years ago. So don’t forget, as of July 24, 2009, the federal minimum wage will increase from $6.55 per hour to $7.25 per hour. You can keep the same poster until something else changes, though.
Minimum wage seems easy enough to understand, but in fact there are many ways in which an employer can make mistakes, whether on purpose or inadvertently. One thing to remember is that states are permitted to impose a minimum wage different from the federal wage. If it’s higher, the state minimum wage controls. Maryland automatically follows the federal standard, so the amount of the minimum wage is equal.
But since not all jobs are subject to the federal minimum wage, Maryland’s minimum can be important. A job not subject to minimum wage under federal law may be subject to the Maryland law. (Federal law applies to jobs affecting interstate commerce; that cuts a wide swath across the economy, but there are occasional exceptions.) In addition, Baltimore City has a minimum wage equal to the federal and state minimum per hour, and affects employers of at least two people. So, in other words, only you self-employed people are completely exempt, and can work for less than minimum wage (but you already knew that). But for certain service contracts with the City, employers must pay at least $10.19 per hour, as of July 1, 2009. A still-higher prevailing wage is payable on city construction contracts.
Under federal law, exceptions to the minimum wage exist for certain categories of workers. For example, workers with disabilities and certain students may be paid less than the minimum wage, for policy reasons supporting employment of the disabled, whose employment level is quite low, and to encourage hybrid learning/working situation. In addition, workers under the age of 20 in their first 90 days of employment may be paid a minimum of $4.25 per hour, to encourage successful first forays into the job market.
Perhaps the most widespread area of confusion and abuse relates to tipped employees. Under federal law, a tipped employee must earn a wage of at least $2.13 an hour if that amount, combined with the tips, equal at least the minimum wage. This exception also requires that the employee keeps all of the tips he receives, and that he or she gets at least $30 in tips per month. In Maryland, the minimum direct wage, paid by the employer, has to be 50% of the minimum wage.
I have occasionally seen employers try to game this exception by not permitting the employees to keep their tips, or cutting the minimum wage to nothing when tips are high. Splitting tips with others in a restaurant, for example, is a tricky area. It does not violate federal law, if it is the regular practice of the establishment, but it does require the payment of the full minimum wage to the servers.
State law may be more protective. Starbucks’ big loss in California of more than $105 million on this issue was overturned on appeal last month. Read more here.
Critical to that decision were two factors: one, that the tips were in pooled plastic tubs, and two, that shift supervisors were not really management employees, and often prepared and served coffee just like the lower level baristas. (Also, this case arose under California law, not the federal Fair Labor Standards Act.)
I’ll talk about overtime issues in another post. That area is even more complex and riddled with exceptions than the minimum wage law.
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Posted by marykeating on July 10, 2009 under Uncategorized |
Employment law changes rapidly. Maryland employers and employees have to keep an eye on federal and state law, and sometimes the law of the county or city they do business in. I’ll try to hit the critical developments and the just plain interesting aspects of employment law. Feel free to contact me at my email address, or at 410-532-8900.
