November 15, 2011

Family Medical Leave Act

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years, and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

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November 10, 2011

Reverse Discrimination in the Workplace

When the Civil Rights Act of 1964 was enacted, it was meant to protect minority groups from discrimination by the majority. People of different races, genders, religions, and national origins were given the right to vote and were more protected in the workplace. The act has provided more equality for these groups for over 40 years. Sometimes, however, members of the majority discover they need protection as well.

On November 1, 2011, a jury ruled that Michael Clum, a white male, had been discriminated against after an altercation between him and a co-worker who was African-American. Mr. Clum and his co-worker were having a dispute when unfriendly words were exchanged. Mr. Clum's employer, Jackson National Life Insurance, determined his final response was violent in nature and terminated him. Mr. Clum filed a reverse discrimination suit because he was terminated and his co-worker was not reprimanded. The jury agreed that he had been discriminated against in his termination and awarded him over $1 million for lost wages and emotional distress.

In another recent case, the Equal Employment Opportunity Commission (EEOC) filed suit against Hamilton Growers, Inc. in Georgia on behalf of 19 workers who claim they were discriminated against because of their national origin. The 19 workers are Americans. According to the suit, Hamilton Growers, Inc. favored workers from Mexico over the American workers by giving them better job assignments that allowed them to earn more pay and by firing almost all of the American workers in the 2009 and 2010 growing seasons. The suit asks for lost wages, compensatory damages, and punitive damages. This case illustrates that Title VII, the portion of the Civil Rights Act of 1964 that specifically discusses workplace discrimination, protects people of all national origins, even Americans who are the majority. This case was filed in October, 2011 and is still pending.

Reverse religious discrimination has also been the subject of lawsuits. In Noyes v Kelly Services, Ms. Noyes claimed she was discriminated against because she was not a member of the same religious organization as her supervisor. When a manager position became available at Kelly Services, the plaintiff was passed over for another individual who had less experience and education than she did. Ms. Noyes filed suit, claiming the other woman was promoted because she was a member of Fellowship of Friends, the same organization to which her supervisor belonged. She also noted that four of the last five promotions had been given to members of the same religious group. The jury agreed with Ms. Noyes, awarding $647,000 in compensatory damages and $5.9 million in punitive damages.

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October 31, 2011

Sexual Harassment in Fitness Clubs

Fitness club employees spend their days looking at and trying to improve human bodies. Clothing made for fitness and to accentuate the body is worn. In this type of workplace, sexual harassment is bound to occur.

Earlier this month, Jonathan Prince, a personal trainer at 24 Hour Fitness in Sherman Oaks, California, filed a lawsuit against his female manager. The suit alleges that the manager hit on Mr. Prince by asking him out and sending him suggestive text messages. When Mr. Prince asked her to stop she gave him negative reviews in retaliation, which hurt his chances for receiving a promotion or bonus. Mr. Prince is seeking over $50,000 in damages. This case highlights the fact that the victim of sexual harassment is not always female.

In 2004, the same club, 24 Hour Fitness, was ordered to pay $2.4 million to Cynthia Malek, a former employee who was fired because she complained that male co-workers were sexually harassing her. The company attempted to demote her from a management position to a sales position. Ms. Malek refused to accept the demotion and was fired. According to the arbitrator's comments, several of the criticisms that led to the attempted demotion of Ms. Malek came from the men she claimed had sexually harassed her. Even after damages were awarded to her, Ms. Malek continued to fight to have the ruling made public. She felt that the 24 Hour Fitness company as a whole tolerated sexual harassment and she wanted others to be aware of her situation. A year later, the ruling was publicized.

Not all cases of sexual harassment in fitness clubs are filed by employees that work directly with patrons. In August, 2011, Allstar Fitness settled a sexual harassment and http://www.millerfalknerlaw.com/lawyer-attorney-1400888.html by agreeing to pay $150,000 to a janitorial worker who was allegedly sexually assaulted numerous times by her supervisor. The supervisor told her to keep quiet about it or she would lose her job. When she asked him to stop, he fired her the next day. The claim filed by the Equal Employment Opportunity Commission (EEOC) on her behalf claims that the club's upper management never investigated her allegations. The settlement also requires the company to establish a complaint procedure and policies regarding sexual harassment and to provide employee training. Michael Baldonado, District Director of EEOC stated, "No one should be forced to choose between personal dignity and the paycheck that feeds your family."

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October 27, 2011

Twenty Years Later, Workplace Sexual Harassment and Anita Hill Still Linked

It was 20 years ago this month that Anita Hill testified against U.S. Supreme Court nominee Clarence Thomas regarding sexual harassment. Her accusations were part of testimony subpoenaed during a Senate investigation into Clarence Thomas. At the time of the alleged harassment, Clarence Thomas was her boss at the U.S. Department of Education and, ironically, the Equal Employment Opportunity Commission (EEOC). Ms. Hill's disappointment in Clarence Thomas eventually being confirmed by the Supreme Court was in part a result of feeling "...they didn't understand the relevance of my testimony to Thomas' respect for the law. He did these things while he was in charge of enforcing sexual harassment laws."

But the confirmation of Clarence Thomas did not stop Ms. Hill's testimony from positively affecting sexual harassment. In 1980, only one sexual harassment complaint was filed with the EEOC. After Ms. Hill's testimony in 1991, 6870 complaints were filed. That number almost doubled again in 1992, and the complaints continued to increase for years, only tapering off more recently. What was once a subject too embarrassing to discuss became common conversation in workplaces across the nation. Women who previously kept quiet for fear of losing their jobs or other retaliation began seeking justice.

Sexual harassment was included in Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and retaliation in the workplace. Years later, the Civil Rights Act of 1991 was passed, strengthening sexual harassment and all other discrimination laws by allowing a complainant to seek emotional distress damages and have a jury trial.

What constitutes sexual harassment? The EEOC website says:

"Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer."


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October 18, 2011

One Kentucky Employment Lawsuit Ends and Another Begins

In October 2009, Dawn Simpson filed a lawsuit against the city of Louisville after allegedly being sexually harassed and retaliated against by her former employer at Louisville Metro Animal Services. According to the suit, the former director of Metro Animal Services began sexually harassing Ms. Simpson shortly after she began working there in 2007. After Ms. Simpson complained to the second person in command, the suit alleges she was retaliated against by not being allowed to hire employees, make decisions on animal euthanasia, or utilize shelter volunteer coordinators. Her suit with the city of Louisville was settled this year for $287,000. Both men involved in the suit have resigned from their positions.

Ms. Simpson's claim stemmed from her employer touching her stomach and making inappropriate comments about her physical appearance. Other examples of sexual harassment that create a hostile work environment include crude jokes or sexually explicit photos or pictures being visible in the workplace. Another type of sexual harassment is quid pro quo sexual harassment. In this type of harassment, an employee must provide sexual favors to maintain or improve his or her position, benefits, or salary. Employees often believe that if they perform the sexual favors they cannot file a claim, but this is not the case. If the employee felt they had to do it, a sexual harassment lawsuit can be filed.

In a new workplace lawsuit in Lexington, Kentucky, Cynthia Elliot has filed a claim against the Appalachian Research and Defense Fund of Kentucky (AppalReD) alleging she was discriminated against because of her race and gender. Ms. Elliott, who is black, also felt she was retaliated against for firing white employees when she was terminated in January. The AppalReD board states she was fired after an audit showed the agency had spent $1 million more than its budget over four years and because funds were allegedly missing.

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October 14, 2011

Are Friends and Relatives Protected by Anti-Discrimination Laws in the Workplace?

They may be, according to the U.S. Supreme Court. In September, 2002, Miriam Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC) against North American Stainless that alleged sex discrimination by her superiors. At the time the complaint was filed, Ms. Regalado's fiancé, Eric Thompson, was also employed by North American Stainless. About three weeks after North American Stainless received notice of Ms. Regalado's complaint from the EEOC, Mr. Thompson was fired.

Subsequently Mr. Thompson filed his own complaint with the EEOC alleging the company was retaliating against him for Ms. Regalado's claim, which he asserted is illegal under Title VII of the Discrimination in Employment Act of 1967. Title VII states that an employer cannot retaliate against an employee who has filed a discrimination claim by terminating his employment. Mr. Thompson's complaint was dismissed by the U.S. District Court for the Eastern District of Kentucky on the grounds that he was not protected by Title VII since he did not file the initial discrimination claim. The decision was upheld by the U.S. Court of Appeals for the Sixth Circuit.

The case was sent to the U.S. Supreme Court, which overturned the lower courts' decision. The court used a "zone of interest" test to determine if Mr. Thompson had a right to file a claim under Title VII. Per the syllabus of the opinion of the Supreme Court:
"Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII."

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October 5, 2011

Recent Kentucky Workplace Discrimination Suits

Workplace discrimination comes in several different forms. Sexual discrimination occurs when employees or potential employees are treated differently because of their gender. Negative employment decisions based solely on someone's faith constitutes religious discrimination. In the last week, cases have been filed against companies in Kentucky alleging racial discrimination and age discrimination.

On September 26th, 2011 the Equal Employment Opportunity Commission (EEOC) filed suit against River View Coal LLC alleging racial discrimination in the hiring of new employees between 2008 and 2010. Although it is unknown exactly how many people were involved, 13 people have filed complaints with the EEOC. In 2008, River View began interviewing applicants for a new mine that subsequently opened in 2009 in Waverly, Kentucky. The applicants who filed complaints were qualified and said no specific reason was given for why they were not hired or not even interviewed for the positions.

According to a press release from the EEOC, "The agency is seeking back pay, compensatory and punitive damages against River View Coal, as well as other relief, including a permanent injunction to prevent the company from engaging in future hiring discrimination." While back pay is fairly self-explanatory, compensatory and punitive damages require a little more explanation. Compensatory damages, often called "actual damages," are damages that are less tangible than back pay. They may include pain and suffering, emotional or mental distress, or certain medical bills. Punitive damages are meant to punish the offenders to discourage them and others from repeating the offense. This type of damage can be awarded only if it can be proven that the company knew what it was doing was illegal but did it anyway. In employment cases filed under the federal anti-discrimination law, known as Title VII, both compensatory and punitive damages are capped based on the number of people employed by the company.

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September 28, 2011

Age Discrimination Complaint Filed and Settled by Ex-dean of Indiana University Southeast

On April 30, 2010, Annette Wyandotte, former dean of the School of the Arts and Letters and associate professor of English at Indiana University Southeast, filed a complaint with the Indiana office of the Equal Employment Opportunity Commission (EEOC). The charges were age discrimination and sex discrimination. Ms. Wyandotte was being forced to retire from her dean position on June 30, 2010.

Indiana University Southeast has a policy that requires individuals at an executive level to retire at the end of the academic year when they reach the age of 65. This may seem illegal based on the Age Discrimination in Employment Act of 1967, which protects employees over 40 from being forced out of their jobs. But section C12 of the Act states, "Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000." This section allows employers to require individuals in higher positions to retire at a certain age to promote turnover at upper executive levels.

Ms. Wyandotte, who is currently 67, was allowed to finish out her three-year term as dean. When her term was up, she was not recommended for another term as dean, despite a 33 to 1 vote by the department to reappoint her for another three years. The vice chancellor for academic affairs said she was denied another term based on the university policy. In addition to the age discrimination claim filed with the EEOC, Ms. Wyandotte also claimed sex discrimination because exceptions to this mandatory retirement policy were made for other individuals who were male.

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September 20, 2011

Bullying in Places of Employment Prompts New Legislation

Thumbnail image for Thumbnail image for 1000622_worried_man_against_white_background.jpgAdolescent bullying is a hot topic right now, and includes face-to-face interactions as well as online activity. Unfortunately for some, the bullying doesn't end in their teenage years. Recent polls have shown that over 30 percent of working adults feel they have been bullied at work. No one knows for sure why people become bullies. Perhaps they were bullied themselves or they feel insecure. Some research with brain scans has shown that bullies derive pleasure from seeing someone else being hurt. Workplace bullying can include verbal, physical or emotional abuse by an employer or a co-worker.

While workplace bullying has been occurring for years, it is only recently that action has been taken to begin protecting employees both from their superiors and their co-workers. Several movements, including The Healthy Workplace Campaign, have been created to encourage legislators to take action against workplace bullying. Some forms of bullying are covered by current anti-discrimination laws. If an individual is being bullied based on his race, gender, or religious beliefs, he can take legal action under existing laws. However, if the person being bullied is not in a protected class, or if the bully is in the same protected class as the victim, filing a lawsuit becomes much more difficult.

Since 2003, 21 states have introduced workplace bullying legislation. As of today, none of the bills have become law. This legislation differs from anti-discrimination laws. It would cover all individuals, not just those in a protected class; it would make companies liable for bullying being done by co-workers, not just superiors; and it would pertain to companies of any size.

Companies are concerned that this type of legislation could lead to an enormous number of lawsuits, some legitimate, but others frivolous. Some employees may file claims simply because they were disciplined, or because they were unhappy with a review. The proposed bill in New York hopes to curb some of the unnecessary lawsuits by making employers not liable if the proper bullying prevention and correction techniques are in place. Another way a company can protect itself is to try to identify and turn away potential bullies when interviewing job applicants.

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September 15, 2011

Workplace Rights of Religious Institution Employees to be Determined by Supreme Court

The separation of church and state has always been a tough subject. While the topic does not relate to the majority of us in regards to employment issues, it can affect anyone employed by a church, religious school, or other religious institution.

"Ministerial exception" is a doctrine that was put in place to allow religious institutions the ability to hire individuals that they feel are most qualified to minister to their followers without government intervention. For example, a Lutheran church cannot be sued for discrimination for failing to hire a rabbi for a religious leadership position within the church. However, the subject becomes more unclear when it is applied to other positions within a religious institution.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fourth-grade teacher at the religious school was terminated after several months of not being able to work due to undiagnosed narcolepsy. After she was diagnosed, her doctors cleared her to return to work with the appropriate medication. The school was concerned about her ability to perform her teaching duties and asked her to leave the school voluntarily and waive her disability. She refused, threatening legal action if she was not reinstated, and she was fired.

Ms. Perich, the dismissed teacher, contacted the Equal Employment Opportunity Commission (EEOC) and filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating Ms. Perich was included under the ministerial exception because she taught at a religious school. Ms. Perich and the EEOC appealed, stating that only 45 minutes of her 7-hour days were spent in religious activity; the rest of her work was secular. They won the appeal, and the case is headed to the Supreme Court.

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September 9, 2011

Age Discrimination by Companies, Agencies, and Unions in Hiring and Training

As baby boomers age and the economy struggles to recover, the subject of age discrimination is being discussed more frequently than ever before. Everyone knows if an individual's employment is subject to wrongful termination based solely on age, it would constitute age discrimination. But there are many other situations in which age discrimination can occur.

When an employer is seeking a new employee, it is unlawful for her to directly ask the age of the prospective employee or to ask questions to help her ascertain the interviewee's age. While this is fairly common knowledge, what you may not know is that it is also illegal for an employment agency to use age as a basis for referring potential employees to a company. Some companies try to get around the age discrimination issue by having an employment agency do the screening for them. In a case involving Hollywood TV writers over 40, talent agencies were included as defendants because they were not recommending older writers to networks and studios for sitcoms or dramas. In 2010, the case was settled when the defendants agreed to pay $70 million to thousands of writers whose careers were damaged by this discrimination.

The Age Discrimination in Employment Act of 1967 also pertains to unions. Unions may not discriminate against potential members, nor may they use age as a basis for referring individuals for employment. A union may also be liable if it fails to act on an employer's discrimination against an employee.

An individual can be discriminated against for youth as well. Even though he may be qualified as far as experience and education, a younger applicant may be passed over for a supervisory role because the interviewer incorrectly thinks he will be less authoritative and not respected by older employees. Young female applicants may also be wrongfully denied employment if the prospective employer thinks she will need maternity leave or may decide to quit working after having a child.

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September 2, 2011

Workers Sue City of Louisville in Class Action Suit for Unsafe Work Environment Due to Toxic Mold Exposure

Employees from the metro police department in Louisville, Kentucky have sued the city of Louisville and the Metro Housing Authority in a class-action suit. The suit claims that the plaintiffs were exposed to mold and other contaminants at a toxic level in a government building at 768 Barret Ave. The case was filed Monday in Jefferson Circuit Court. The suit claims that because of gross negligence and fraudulent concealment, up to 1000 past and present employees were exposed, leading to symptoms including congestion, headaches and skin and respiratory issues.

In 2003, the Occupational Safety and Health Administration (OSHA) and an outside consultant found toxic levels of mold in the air. According to the lawsuit, nothing was done to fix the situation, and employees were not informed of the findings. Last year, after some employees' symptoms worsened, OSHA ordered that the ventilation system be cleaned out or replaced, and employees were relocated. Now that the employees are scheduled to return to the building, the plaintiffs are requesting confirmation that the building has been brought up to OSHA standards, that funds be in place for medical testing of employees, and that treatment is provided for any employees that were affected.

Gross negligence occurs when an individual or entity knowingly places a person or group of people in danger. In this case, it is alleged that the city of Louisville and the Metro Housing Authority were aware of the air-quality issue, but did not fix it.

Gross negligence can also be found in car accidents caused by drunk drivers or those distracted by texting. Medical malpractice claims may also include gross negligence if the doctor was under the influence of drugs or alcohol while operating, or an incorrect surgery is performed, such as the unnecessary removal of an organ or limb.

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November 8, 2010

Court Upholds Retaliation Claims

An Ohio man who successfully sued his employer under the Age Discrimination in
Employment Act (ADEA) prevailed once again on appeal in front of the United States District Court for the Southern District of Ohio. Jon Spengler was fifty-three years old when he started as a seasonal employee in charge of spray-washing pressure cylinders designed to hold propane and other industrial gases. Despite his above average performance, Spengler was repeatedly not promoted to regular full-time status like many of his high-achieving counterparts.

A supervisor attempted to quell Spengler's questions about promotion by telling Spengler that he would recommend a transfer to the Steel Division because Spengler would "probably have trouble keeping up with the younger guys" in the Cylinder Division. When Spengler reported such comments to the Plant Manager, that supervisor was admonished. Less than four weeks later, the plant terminated Spengler because of "negative comments" from his co-workers concerning Spengler's "attitude and interpersonal skills".

After his firing, Spengler continued to defend his right to work and filed an EEOC complaint against Worthington Cylinders. Within five months of his firing, he also retained counsel and brought the ADEA claims.

Given the notorious high standards of proof under ADEA, Spengler's age discrimination
claim did not survive summary judgment. But because he prudently raised his concerns to a supervising manager at the early stages of the situation, his retaliation claim had legs. The jury awarded him about $22K for lost wages and an equal amount in liquidated damages.

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November 4, 2010

Another Great FLSA Settlement Approved

Last week, a federal judge approved a $2.33 million settlement in a state based on violations of the Fair Labor Standards Act. The case Wilcox v. Alternative Entertainment, Inc. was litigated in the Western District of Wisconsin.

The employees were satellite installers who claimed the company failed to pay them overtime and further suffered from unlawful deductions from their pay. The class included over 900 employees in two states: Wisconsin and Michigan.

When certain employees works overtime, they may be entitled to pay at a rate of one and half times their typical hourly rate (or double time if they work particularly long hours). If you or someone in your family working overtime without being paid, you should talk with a wage and hour attorney about your rights.

October 31, 2010

Olan Mills Pays $3 Million in FLSA Claim

A Tennessee federal court judge approved a $3 million class action settlement agreed to by Olan Mills Inc. and its employees.

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The 18 class representatives worked for Olan Mills in Tennessee, California, Florida, North Carolina, Georgia, Florida and Michigan. Most of the class members were employed as studio photographers and paid on an hourly as opposed to a salary. The claimed that Olan Mills required them to work off the clock including before their shifts and after their shifts. In addition, the employees claim that the company failed to pay overtime, failed to allow employees rest and meal breaks, and failed to reimburse employees for expenses. These violations allegedly occurred between 2003 and 2009.

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