Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Retaliation’ Category

What Are Your Workplace Rights When Entering Rehab?

Wednesday, October 10th, 2018

Drug and alcohol rehab have helped millions of Americans successfully recover from addiction and greatly improve their quality of life. But if you’re employed and struggling with substance abuse, a decision to enter rehab can often be complicated by anxious concerns about job security and if/how you should tell your boss. The good news is you have certain workplace rights that can alleviate many of these worries— even with respect to talking with your employer about a decision to pursue rehab.

Common Job-Related Concerns About Going to Rehab

Any full-time employee who has struggled with a serious health condition that requires treatment (and significant time away from work) has asked many of the same questions as employees with an addiction. Some of these questions include:

  • How will seeking treatment impact my career?
  • Do I qualify for medical leave?
  • Can I get fired for taking a leave of absence?
  • Can my company let me go after learning of my addiction?

What Are Your Workplace Rights?

While there is no cookie-cutter answer to these questions as everyone’s job situation looks different, knowing your workplace rights can help you both answer the above questions and prepare for a conversation with your boss.

  • A job-protected leave of absence from work – Alcoholism and other substance use disorders can qualify for a job-protected, unpaid leave of absence under the provisions of the Family and Medical Leave Act (FMLA). The FMLA requires that employers with 50 or more employees grant up to 12 weeks of family or medical unpaid leave to employees who have been in their employment for at least 12 months. Consult your employee manual and/or human resources department to verify that an FMLA leave of absence is an option available to you.
  • Insurance coverage for treatment – If you work full-time, you should have a private insurance plan that covers treatment for alcoholism and other drug addictions (if not in full, then partially).
  • Paid time off (PTO) – If you have been working for the same employer for a while, you have the right to use PTO in the service of time off for treatment. Depending on how much PTO you have accrued, you can get creative about how you use it to help you through rehab— for example, by scheduling detox and rehab over a long holiday weekend and using PTO to make up for the remainder of that time away from work. Alternatively, if an intensive outpatient program will suffice for your treatment needs, you may be able to spread out small chunks of PTO across several weeks instead of taking off a prolonged period of time.
  • The right to control what you share with your employer – You are not required to tell your employer you’re going to rehab, although in some cases this may be the best course of action. If you do tell your employer that you need to go to rehab, it is within their right to ask for supporting medical documentation — but the release of any of that private health information will still require your signed consent. In other words, you have a right to limit what, if any, disclosures you make about your medical history. You also have a right to request confidentiality with any medical records you agree to share.

How to Prepare for the Conversation with Your Boss

In addition to getting better familiarized with your workplace rights, here are some other things you can do to prepare for that conversation with your boss:

  • Get organized ahead of time. Know what the dates of your leave of absence will be, and be prepared to propose a plan for how to cover your job duties while you’re away.
  • Decide ahead of time whether to share that you’re going to rehab. If you do tell your boss, rehearse an honest but brief explanation. If you’re hoping to avoid mentioning that you’re going to rehab, you’ll still need a prepared response for any questions asked about why you need a leave of absence.
  • Keep the conversation positive and focus on how taking the time off will help you become a better, more productive employee. Avoid gratuitously mentioning any negative details of your addiction.

Nobody should have to forego rehab for an addiction that is ruining their life purely out of fear they’ll lose their job or be forever stigmatized. These tips can help anyone considering drug or alcohol treatment navigate the challenge of pursuing rehab while protecting their job.

About the Author: Anna Ciulla is the Chief Clinical Officer at Beach House Center for Recovery. Anna has an extensive background in psychotherapy and clinical management, including more than 20 years of experience helping individuals and families affected by addiction and co-occurring disorders find recovery. Learn more about Beach House’s different rehab programs by visiting their website.

Campaign Alleges Retaliation Against Strikers in Federal Building

Friday, May 31st, 2013

eidelson_100Organizers tell The Nation that four food court outlets in a federal building initially refused to let employees return to work following a Tuesday strike, but relented following protests by supporters.

The four establishments—Subway, Bassett’s Original Turkey, Quick Pita and Kabuki Sushi—are located in the Ronald Reagan federal building, one of several Washington, DC, workplaces where employees with taxpayer-supported jobs went on strike as part of the Good Jobs Nation campaign, whose backers include the Service Employees International Union. As The Nation reported Tuesday, the strikers are demanding that President Obama take executive action to improve labor standards for workers who are employed by private companies to do jobs backed by public spending. According to organizers, the one-day strike involved hundreds of workers, and forced about half of the Reagan Building’s food court outlets to shut down at some point during the day. (The Reagan Building is owned by the federal government; many of its food outlets are franchisees of restaurant or fast food chains.)

Bassett’s employee Suyapa Moreno told The Nation in Spanish that three of her outlet’s four staff went on strike Tuesday, and that when they showed up to start their shift on Wednesday, “The owner told my co-worker she was fired. So I said, ‘If you’re going to fire her, I’m not coming back to work.’” She said her manager told them that “she didn’t want to see us again.” Moreno said she believes her co-worker was targeted because management saw her as the ringleader who convinced Moreno and a third Bassett’s worker to strike.

Moreno said the workers then waited at the food court until other workers, organizers and community supporters gathered to protest the terminations. According to the Good Jobs Nation campaign, about a hundred total supporters converged in the food court to protest ten total terminations by four outlets. Once there was a big enough group, said Moreno, “We went back to talk to the owner, and she accepted us back.” The Good Jobs Nation campaign told The Nation that managers or owners from Subway, Quick Pita and Kabuki Sushi also agreed to reverse the terminations once confronted by crowds of supporters.

The federal Office of Management and Budget did not respond to a request for comment Thursday afternoon regarding the allegations, or to The Nation’s prior inquiries this week regarding the Good Jobs Nation campaign. An employee who answered the phone at the Reagan Building Bassett’s Original Turkey location early Thursday evening said that no manager was on the property to comment. A call to the building’s Kabuki Sushi location went unanswered. The person who answered the phone at the building’s Subway location said he was too busy to comment; the Subway corporation did not immediately respond to an inquiry.

Reached on the Reagan Building Quick Pita location’s phone line, a person who identified himself as a manager there said that no strikers had been denied the chance to return to work, and charged that the campaign was making workers “victims for a bigger political agenda.” He declined to give his name, and said that he was not authorized to speak for the Quick Pita company or the franchisee’s owner.

The attempted terminations alleged by Good Jobs Nation could be violations of federal labor law. As I’ve noted previously, the law generally prohibits “firing” workers for striking, but often allows “permanently replacing” strikers by filling their positions during the strike and refusing to reinstate them. But strikes that the government finds to be motivated in part by prior labor law violations, as Good Jobs Nation says Tuesday’s was, receive greater legal protection; and striking for only one day may also provide a shield against “permanent replacement.”

However, labor advocates and activists have long charged that the National Labor Relations Board’s slow process and weak penalties do little to discourage companies from firing activists. In order to deter retaliation, organizers of recent fast food strikes have arranged for delegations of supporters, sometimes including local politicians and clergy, to accompany the strikers back to work the next day. As I reported for Salon in November, activists say that an indoor occupation and outdoor picket of a Wendy’s store led management to reverse the termination of one of the participants in New York’s first fast food strike. Organizers say the same approach worked yesterday in Washington.

“Before, when workers were treated badly or fired unjustly, nothing would happen,” said Moreno. “And so the bosses felt like they could keep doing it.” Following the strike and yesterday’s showdown, she said, “Now they treat us with a little more respect, because they’re afraid that if they keep doing what they’re doing, more of this will happen.”

This article was originally printed on The Nation on May 23, 2013.  Reprinted with permission.

About the Author: Josh Eidelson is a Nation contributor and was a union organizer for five years. He covers labor for as a contributing writer at Salon and In These Times.

Oh Great, More CEOs Telling Us We Need to Cut Social Security and Medicare Benefits

Friday, January 18th, 2013

Jackie TortoraAs if we didn’t already have enough on our plates (having to fend off attacks from the “Fix the Debt” CEOs), now there’s another group of CEOs, the Business Roundtable, telling us we need to “modernize,” a.k.a. cut, Social Security and Medicare benefits by raising the eligibility ages and reducing cost-of-living adjustments (COLAs). How helpful. 

R.J. Eskow took on the Business Roundtable in his latest blog, How Extreme Is the Business Roundtable? Check Out Its Attack on the Elderly.

Yesterday, Gary Loveman, CEO of Caesars Entertainment Corp. and head of the Roundtable’s “health and retirement committee,” told Politico that “[a]ny effort to address the country’s fiscal problems has to have as a centerpiece reform of its principal entitlement programs.”

Added Loveman: “None of us [CEOs]—very few of us—are ideologically driven. We’re pragmatists….”

“I am encouraged by how relatively easy these remedies really are,” said Loveman. “… (and) they have a tremendously sanguine effect on the government’s fiscal health.”

That’s true. It is pretty easy. Just kick in a few rich people’s doors, seize their belongings…oh, wait. That’s the other extremist scenario. Loveman’s is the one where people who have paid for Social Security and Medicare coverage throughout their working lives must give some of their benefits up—for him and his friends.

These CEOs are the same people cutting back on pensions and retiree health benefits. Now they want working people to have even more economic insecurity in retirement by cutting the few benefits that keep seniors afloat. 

Raising the Social Security retirement age is especially damaging. Not only is it a benefit cut, workers 55 and older have the longest bouts of unemployment. The average time unemployed is nearly a year (51.3 weeks, compared to 34.3 weeks for workers younger than 55).  

Eskow points out that 8.9% of American seniors already live in poverty, while 5.4% are on the edge. The average Social Security recipient collects $1,164 per month.

Anyone who claims they can cut those benefits by 3%—and use those meager benefits to end elder poverty—is selling snake oil.

Snake oil indeed. There’s nothing more cynical than calling devastating cuts to vital lifelines “modernization proposals.” Working people know the difference. 

This post was originally posted on AFL-CIO on 1/17/2013. Reprinted with Permission.

About the Author: Jackie Tortora is the blog editor and social media manager at the AFL-CIO. Interviewing union musicians was her introduction to the labor movement. Her first job after graduating college was in Syracuse, New York, where she wrote and edited the International Musician, the monthly magazine for the American Federation of Musicians (AFM). Protecting Social Security and Medicare from benefit cuts brought me to Washington, D.C., where she spent two years as a new media coordinator at the National Committee to Preserve Social Security and Medicare. She came to the AFL-CIO in the summer of 2012, just in time to re-elect President Barack Obama. When she’s not tweeting about America’s unions, it’s likely she’s watching Syracuse basketball and football. 

A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Friday, December 21st, 2012
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements.  In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

 

Last week, in Bradley v. Networkers International, LLC (December 12, 2012)  —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker.  Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal. 

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action. 

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
 
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform)  lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code. 

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable.  In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

Warehouse Workers Allege Wage Theft, Demand Pay Stubs

Monday, February 28th, 2011

kari-lydersenEmployees will march into Reliable Staffing office to demand billing records, highlight mistreatment

When Reginald Burnett started working in a warehouse unloading trucks of goods destined for Wal-Mart, he said he was told he’d make at least $10 an hour. But he soon realized that figure hinged on unloading a truck in three hours. Depending on how many things are in a truck and how heavy and unwieldy they are, unloading a truck can take two days.

Burnett, 32, soon found himself working 12-hour days, seven days a week, and taking home only $90-100 a day – less than $9 an hour, not counting copious overtime to which he should have been entitled under the law. He said he wasn’t the only one who realized his Friday paycheck from the agency Reliable Staffing “didn’t add up.”

Burnett is among workers who think they are victims of wage theft by the New Lenox, Ill., staffing agency. Reliable Staffing workers have contacted the group Warehouse Workers for Justice, which is trying to shed light on alleged wage and hour violations, unhealthy working conditions, extensive use of temporary labor and other unsettling aspects of the massive warehouse industry in Chicago’s southwest suburbs.

Today Burnett and other former or current Reliable Staffing workers and their supporters are marching into the company demanding copies of their pay stubs and billing records, to highlight what many workers say is erratic, deceptive or non-existent recordkeeping and transparency by the agencies that hire workers to staff warehouses for major multinational companies like Wal-Mart.

“It was everything that goes to Wal-Mart, from BBQ grills to tables to different types of book folders,” said Burnett. “A lot of it was heavy.”

George Johnson is among the former Reliable Staffing workers who never got straight answers about how much he was being paid. He said he was promised $9.25 an hour, but he said he sometimes got as little as $15 for a full eight-hour day during his three months at the company, paid piecemeal for unloading trucks, splitting pay with one or two other workers unloading the same truck. He said he was also told to report to the warehouse at 7 a.m., but wouldn’t start working until 8:30 a.m. or 9 a.m., without being paid for the waiting time.

“It was all screwed up,” said Johnson, 41, who struggled to support eight kids on the meager wages. “You spent all these hours working, unloading these big trucks, one after another after another. For nothing.”

Warehouse Workers for Justice, a campaign launched several years ago by the United Electrical Radio and Machine Workers of America (UE), last year released the study Bad Jobs in Good Movement: Warehouse Work in Will County that showed:

63 percent of warehouse workers were temps and that majority were earning below the poverty line…and one in four warehouse workers needed public assistance and many workers needed a second job in order to make ends meet.

Both Johnson and Burnett were temporary workers, and Johnson since then worked another temporary warehouse job. Burnett has been collecting unemployment since being laid off after about seven months, when his contract ended.

“When they want that order, they’ll say ‘that truck is hot,’” he said. “There are people waiting on the order, they need to complete it right away to get their money, so they make you work harder. But they don’t share the money with you. They are making big money, I kid you not.”

Warehouse Workers for Justice organizers have been meeting with Illinois state legislators to introduce legislation that would limit the number of temporary jobs in the industry, among other workers’ rights protections.
“People deserve permanent jobs,” said Tory Moore, a WWJ organizer who worked at the same warehouse for six years as a temp.

Burnett said he hopes more workers speak up about wage theft and other problems. He said many of the people working for Reliable Staffing have criminal records, something he thinks the company banked on.

“The job is so God-damned hard, most people they hire have felonies, they know most people won’t hire someone with a felony, so they know he’ll put up with it because he’ll have a hard time doing anything else,” Burnett said.

They are trying to prove to society that they’re capable of handling this kind of thing. Making their own money feels good, especially someone who came from the street, who never had anything in their lifetime. Now they don’t have to look over their shoulder, over their back, look out for the police.

They’re going to hold on to that job as long as they can. The people know they’re being cheated, but they don’t want to speak up because if you speak up, you lose your job.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

This post originally appeared in http://www.inthesetimes.com on February 21, 2011.

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Turning the Other Cheek: Illegal Retaliation in the Workplace

Wednesday, October 6th, 2010

Piper HoffmanTurning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

This article was originally published on PiperHoffman.com

About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School.  She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Friday, October 1st, 2010

ellen simonHere are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Nurses Rally for Strong Swine Flu Protection

Monday, August 10th, 2009

More than 100 nurses, wearing surgical masks and carrying signs that read “Nurses and Patients Demand Swine Flu Protection,” rallied Wednesday at the University of California at San Francisco (UCSF) Medical Center to spotlight unsafe practices in treating H1N1 (swine) flu patients and protecting health care workers and other patients.

The nurses, members of the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), also protested the recent firing by UCSF of an RN who blew the whistle on unsafe patient care involving swine flu at the facility.

A recent study by CNA/NNOC of California hospitals uncovered widespread problems, including systemic trouble with safety gear for nurses and infection control procedures for patients, as well as an emerging pattern of retribution against nurses who speak out about unsafe care.

In April, a report by the AFL-CIO and several unions revealed that health care workers are at risk because many of the nation’s health care facilities are not prepared to deal with a pandemic.

Last week, a U.S. Government Accountability Office report to Congress warned the United States is still not adequately prepared for a potentially large outbreak of H1N1 this fall. The action came just weeks after a nurse at Mercy San Juan Medical Center in Carmichael died of the H1N1 flu. Says CNA/NNOC co-President Deborah Burger, RN:

Hospitals across California—and possibly the entire country—are putting registered nurses and other front-line caregivers at risk by inadequately preparing for this pandemic.

If hospitals do not take urgent precautions to reverse this lack of preparation, we may see our health care facilities become vectors for infections. That is especially worrisome for hospital patients who already have compromised immune systems, and our nurses who may be unable to respond because of their own sickness.

The nurse who was fired for speaking out, says CNA/NNOC, recently started working at the facility when she was exposed to the virus in June.

While still suffering from the infection, she protested to management about inadequate hospital safety standards that she felt contributed to her illness.

Ultimately, the RN was fired in, what CNA/NNOC calls, retaliation against a swine flu whistle-blower.

Earlier this summer, the World Health Organization (WHO) declared the virus a Phase-6 pandemic, its highest level of warning. WHO reported the death toll at 1,154, in data published this week.

Don’t forget to check out the AFL-CIO’s pandemic flu site, which includes vital resources for health care workers, firefighters, educators and more. Recently added to the site are five updated fact sheets:

  • Basic Facts About Pandemic Flu and the H1N1 (Swine) Flu;
  • Protecting Workers During Pandemic Flu;
  • Protecting Health Care Workers During Pandemic Flu;
  • Respirators: One Way to Protect Workers Against Pandemic Flu; and
  • What the Union Can Do: Preparing the Workplace for Pandemic Flu.

Mike Hall: I’m a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

This article originally appeared on the AFL-CIO Blog on August 7, 2009 and is reprinted here with permission from the author.

Employee Retaliated Against for Blogging: Bloggers Beware

Monday, July 13th, 2009

We have all heard about employees getting into hot water because of their blogs and online activities:

  • the Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo
  • the Google employee who speculated online about his employer’s finances  
  • the Burger King executive who used his middle school-aged daughter’s online identity to attack a farmworkers’ advocacy group that was trying to increase pay and improve conditions for tomato pickers
  • the computer worker fired because he posted a photograph of his company’s loading dock receiving a rival’s shipment of computers

There’s even a term for it: DOOCED  — which means getting fired because of something that you wrote in your weblog.

(“Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here’s what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in “trusting mentor relationships” with less experienced teachers in order to give them “honest, critical and private feedback.”

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here’s one of Richerson’s blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice … and a reluctant one at that. I truly hope that I have to eat my words about this guy…. But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him…. He has a reputation of crapping on secretaries and not being able to finish tasks on his own…. And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community…. Mighty White Boy looks like he’s going to crash and burn

You don’t have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson’s blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

Richerson lost her case in the federal district court and the Ninth Circuit Court of Appeals affirmed.

The Court held that the “legitimate administrative interests” of the school district overweighed Richerson’s right of free speech under the First Amendment. According to the opinion:

It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect [on the performance of her duties]. [Her supervisor] provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future.

Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. [Her supervisor] need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty… .

Accordingly, the district court did not err in concluding that the legitimate interests of the School District outweighed Richerson’s First Amendment interests in not being transferred because of her speech.

The decision is correct with respect to the current state of public employee speech law, according to Paul Secunda, one of the law professors who writes on this topic but the legal test should be changed. As Professor Secunda wrote:

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework. It is almost like we have constitutionalized the heckler’s veto in this area of the law and that doesn’t make a whole lot of sense.

So what would I do instead, you ask? I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment’s protection in the first place. Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

For those who may be interested, Professor Secunda wrote an excellent law review article: Blogging While(Publicly)Employed: Some First Amendment Implications which can be found at his post on Workplace Prof Blog.

Of course only government employees have limited First Amendment protections for blogging about work. It may come as a great surprise to many that private employees have no Constitutional free speech protection at work.

But, according to Professor Secunda,  private employees may be protected under Section 7of the National Labor Relations Act. (NLRA).  Under the NLRA  employees are free to engage in concerted activities in the workplace for their “mutual aid and protection.” Therefore, according to the argument, when employees are blogging about common workplace issues, they are engaged in protected, concerted activity under the Act. It sounds like a very good argument to me.

In addition some states have off-duty conduct statutes which generally prohibit employers from terminating employees for engaging in lawful conduct outside of the workplace. Some argue that these statutes may protect bloggers(depending in part on what they are blogging about).

Other employee bloggers have argued for protection under common law tort theories such as invasion of privacy. Many employers, however, have issued policies making sure that there is no expectation of privacy on the part of the employee with respect to blogging at work.

In sum, blogging at work, and blogging about work, are really two different topics. Employee rights may differ depending on where employees are doing the blogging — on company time, or on private time — and what they are blogging about.

In both of these circumstances, employers clearly have legitimate concerns about the content of employee blogs when employee bloggers:

  • reveal confidential/propriety information
  • improperly utilize a company logo or trademark
  • harass, intimidate, and discriminate against co-employees

These concerns can and should be addressed by appropriate corporate policies which protect legitimate interests without demoralizing employees or creating a repressive workplace environment.

In the meantime, since the law is quite undeveloped and the waters uncharted in this area, both employers and employees need to use common sense and tread carefully.

Ellen Simon: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This article was originally posted on Ellen Simon’s Employee Rights Post on July 6th. It is reprinted here with permission from the author.

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