Posted by marykeating on August 15, 2011 under Federal wage and hour law, retaliation | 
The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.
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.
Posted by marykeating on August 27, 2010 under Wage and hour issues |
The Fair Labor Standards Act requires most workers to earn at least minimum wage, and for non-exempt workers to earn overtime pay. Some workers have been completely exempt from protection under this law, however. Until 1974 there was no set limit on hours or minimum pay for live-in workers such as housekeepers or nannies. But even after they were finally included in the law, live-in workers were still exempt from overtime, and companions for the elderly or the ill were not covered by the law at all.
New York has passed a law expanding the rights of domestic workers, entitling them to overtime after 44 hours for a live-in worker, after 40 hours for others, and mandating one day off per week. The Domestic Workers’ Bill of Rights also requires vacation time after a year of service, and extends the sexual harassment law to live-in employees. (Under federal law, the employer would not be liable in any event unless he or she had 15 full-time employees.)
Other states may follow New York’s lead, as news reports of abusive conditions for servants proliferate. Once an employee accepts both the domestic duties and a place to stay, the influence from the outside world can shrink.
