Employment Law Information

Archive for October, 2009

In the 1960s, many affirmative action policies and practices were put into place. These practices were meant to act as a way of making it up to previously discriminated against groups their lack of advancement. The practices could mean applying extra points to an employment exam or having some sort of quota in place to ensure that some level of diversity was created or maintained within the company or division.

As a result of the affirmative action programs, there have been a number of cases where non-minority people have alleged that they have been the victims of reverse discrimination. Reverse discrimination is something like ordinary discrimination but it involves discriminating against an otherwise qualified non-minority in favor of a lesser qualified minority candidate. The reason for the preference may be that the company may not want to appear to be racist or may just want to ensure a certain amount of diversity within the organization.

One of the biggest places that reverse discrimination has come into play has been in schools and universities. Students who have been refused admittance have alleged that they were refused admittance to the undergraduate or graduate program because they were not a minority. In one situation involving a law school, the courts told the individuals claiming reverse discrimination that they were, quite frankly, nuts for thinking that the law school would ever have admitted them. Yes they were passed over but not because they were non-minorities. Rather, they were passed over because they really weren’t qualified for the school.

Reverse discrimination in the workplace may be harder to find or successfully allege since there frequently aren’t specific criteria that can determine raises, advancements, or hiring in general. Individuals who are invited to interview can make or break their employment based on how their interview goes; it is not all dependent on one’s degree or previous experience, although those things do help.

Reverse discrimination is commonly alleged in the advancement of teachers and school administrators. This can happen because these positions sometimes carry tests with them to determine who moves on to the next level. While it is not too common, it is possible for someone who scores a perfect score not to be advanced because an individual that scored less on the actual test (or got more questions wrong) beats him or her out because of points added on for various factors not relating to test scores or experience.

The Houston employment lawyers of the Ross Law Group are dedicated to fighting discrimination in the workplace in all shapes and forms.

Joseph Devine

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Wrongful termination is a very big term that covers a lot of different scenarios and circumstances. In general, though, it refers to the termination of an employee’s contract of employment in violation of the contract, a written company policy. Wrongful termination is illegal, and if you fire somebody without cause, you can open yourself up to some unwanted legal trouble. Make sure you are familiar not only with the state law but also your company’s policies regarding employment before you make any employment decision, as it could become a costly error if you don’t.

As already mentioned, there are several different acts that fall under the greater heading of wrongful termination. The following are the most common examples of such:

• Discrimination. It is illegal to fire an employee based on his or her race, sex, nationality, religion, age, or (in some states) sexual orientation.
• Retaliation. It is illegal to fire an employee because he or she has filed a harassment or discrimination complaint. Such a termination is considered a retaliatory action, and is illegal under civil rights laws.
• Refusal to commit an illegal act. If you have ordered an employee to commit an illegal act – hide funds, say, or shred documents – and he or she refuses, it is illegal to fire that employee.
• Failure to follow termination procedures. Most employers of a certain size have a policy in place that describes the conditions under which an employee can be fired, and what procedures must be undertaken. If these written procedures are not followed to the letter, the fired employee may have the right to sue you for wrongful termination.

It’s important to know that, in some states, employment alone is considered an employment contract, and that no physical document has to be signed by either party for there to be a legally binding agreement between the two. The terms of this contract may be influenced by your company’s employee handbook. If you are an employer, you may want to consider discussing the legality of any employment issues with a qualified employment attorney beforehand, as it can help you avoid the potentially damaging wrongful termination lawsuit. These court cases can drag on for well over a decade, if they go to the top courts. It is definitely better to be cautious in this situation.

To find out more about employment law, visit slaterandkennon.com.

Joseph Devine

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It is unfortunate but sometimes workers are injured on the job to the point that death occurs or is inevitable following the injury. Many families are left with the financial insecurity instability that comes when the main wage earner stops earning wages. In addition, they must learn to live without the person in their lives completely. This can be a very difficult situation for a family to deal with, usually not made any easier by fights with workers compensation insurers or insurance companies in general.

One of the biggest problems with workers’ compensation insurance for a company is that it still requires an injured party to go through an insurance company to receive his or her payments. Insurance companies are notorious for dragging their feet, regardless of who they are supposed to pay, and this is true even in workers’ compensation situations. For a family dealing with the loss of a loved one as well, it can be an excruciating experience to a family suffering the loss of a loved one.

In most situations, a family whose loved one has died as a result of a workplace accident or injury can apply for workers compensation death benefits. These benefits are typically available to the descendants and dependents of the party can collect. The benefits available are designed to provide monetary support for the people who have been affected the most by the employee’s death. The individuals eligible to receive the workers’ compensation death benefits are the people who are most likely to have been significantly affected by the death.

In many cases, the family relationships involved and/or the household composition is important to determine who is eligible to receive the benefits. Some areas or states have specific lists of family relationships that make a person eligible while others might have guidelines. In areas with guidelines rather than set rules, in-laws, stepchildren, unmarried partners, and even unrelated individuals that still live in the house and were supported by the deceased may qualify. Because of the benevolent nature of this type of benefit, a state is much more likely to be liberal in naming beneficiaries.

When the employee dies, the family is likely to receive two different types of benefits. The first type is for the expenses relating to the funeral and the burial. The second type of expense is designed to ensure that the family does not starve after the death occurs. These are more support payments than anything else.

The South Carolina workers’ compensation lawyers of the Steinberg Law Firm understand the difficulties faced by a family after a loved one is unexpectedly taken.

Joseph Devine

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If you’ve worked with lawyers before, you know that most attorneys’ practices usually center on very specific fields. Family law attorneys do divorces, while personal injury lawyers protect people who’ve been hurt. An employment or labor attorney litigates on behalf of people who have been wronged by an employer while on the job. If you think your employer may have treated you unfairly, here are some of the types of cases that can best be handled by an employment attorney.

– Age Discrimination: Persons over 40 may not be discriminated against in the workplace due to their age. Such discrimination can be manifested during the hiring/firing process, in the types of work assignments given, or in alteration to benefits and retirement packages among many others.

– Sexual Discrimination: If you feel you’ve been unfairly singled out or even harassed due to your sexual gender, you needn’t “take it.” There are laws protecting you against such treatment and an attorney can help you determine if you have a case.

– Whistleblower: If something fishy is going on within your company, it takes a lot of courage to be a whistleblower. The retaliatory consequences could be severe indeed, and your rights need to be protected.

– Over Time and Pay Day Law Claims: If your employer has failed to pay you adequate overtime or if your paychecks have been sporadic and irregular, a lawyer can help you get timely compensation.

These are just a handful of the kinds of cases an employment attorney tries on a daily basis: the bottom line is, if you think you have been discriminated against or have been wrongfully treated by an employer, you do have recourse. Contact an employment attorney in your area immediately.

Rosenberg Law (http://www.rosenberglaw.com/) is a Houston employment lawyer. Ryan Coisson is a freelance writer.

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With the aging of baby boomer workers and the downturn in the economy, employers may try to replace older employees with younger ones in an effort to save costs. However, the ADEA (Age Discrimination in Employment Act) of 1967 specifically prohibits such actions for companies with 20 or more employees, state and local governments, and unionized entities. If you suspect you are a victim of work-related age discrimination, you may have a claim under ADEA. Here are 3 steps to follow in pursuing such an action.

1. Know the Facts

You cannot be discriminated against in the following areas: hiring, firing, promotion, layoff, benefits, compensation, training, or job assignments. For more information visit the government’s website.

2. Keep Records

You cannot bring a case against an employer without having tangible proof of impropriety or discrimination. Make sure to carefully document specific events, conversations, people involved, dates, times, and places.

3. Hire a Good Labor Attorney

Even if you have an excellent relationship with your long-time family law attorney, such a lawyer is probably not experienced in handling discrimination cases. You will want to find a labor attorney whose sole focus is on protecting and litigating for employees in the work force.

If you don’t have anyone recommended to you by family or friends, start by searching the internet in your area for qualified attorneys. After creating a list of candidates, contact the Bar Association in your state to check on both his credentials and his standing with the bar. Usually, the most experienced labor attorneys are the most desirable.

You Don’t Have to Feel Victimized

If you feel you are being discriminated against because of your age, there is recourse. But you can’t and shouldn’t go it alone: it is always best to contact a qualified labor attorney to help.

Rosenberg Law (http://www.rosenberglaw.com/) is a Houston labor attorney. Ryan Coisson is a freelance writer.

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Regardless of Home Depot’s company policy, this is a clearly a case of religious discrimination only because of the method of execution of the firing.  I can tell you right now, that kid is going to get the right to sue Home Depot and he will win.  If Home Depot would have taken immediate action the moment he started wearing the button AND if they would have taken the same immediate action with ALL employees, Home Depot would have been in the right to not allow any employee to wear non-Home Depot buttons. 

But, because they waited until he whipped out the bible to fire him, it will be Home Depot that burns in hell.  This case will go to court, unless HD agrees to settle beforehand.  HD is guilty, guilty, guilty.

I love it.  This is a clear-cut example one of those cases where the company’s own employee guidelines comes back to bite the company in the ass.

What they should have done was to keep their lips zipped when they saw the bible come out.  Instead, they should have scheduled a mandatory employee meeting or issued a company memo stating, “Effective immediately, employees in violation of Home Depot’s company policy of not wearing non-company issued blah, blah, blah on their person while on the clock, will be terminated.”  Or something to that effect.  No finger pointing, no names, no favoritism, no excuses.  If you are going to enforce company policy, you have to do it to everyone, even management.

By allowing the bible to be the triggering event, this matter went from a case of an employee violating company policy to a case of the employer committing religious discrimination.  They waited for the wrong moment and then played the wrong card.  Juries LOVE to get these kinds of cases because they get endless amounts of joy sticking it hard to the company. 

Just because your employer has a employee manual doesn’t mean the company’s got iron clad protection from their own screw-ups. Read my article on how to use the employee manual against your employer when things go south for you.  Get a copy of Work Laws Exposed and learn how to protect yourself on the job when your employer starts acting like God.

Sometimes in the workplace acts of discrimination happen against people and they may not even realize that they have legal rights that allow them to be treated fairly and justly. This is especially the case in incidents of something called age discrimination. If you’ve been passed over for a job or promotion because you are over the age of 40 and your employer wanted someone younger in the position, you may have been a victim of age discrimination and not even know it.

Age discrimination isn’t just against the elderly either. There is also something called adultism, which is discrimination against youth, especially people from the age of fifteen to twenty-five years old. It also happens to people 40 years and older and also to the elderly. When it happens in the workplace, age discrimination is illegal and you have the right to fight back and protect your rights as a citizen of the United States of America. The Age Discrimination in Employment Act was created in 1967 in order to protect against these types of incidents. The act prohibits employees from discriminating against people 40 years or older. It specifically protects against discrimination in hiring, promotions, firings, and layoffs as well as setting the standard for pensions and benefits.

If you feel you have been discriminated against in the workplace because of your age, you should realize that laws have been enacted to protect you against these types of incidents. If it can’t be resolved peaceably, you may want to enlist the services of an employment attorney who can help you navigate through the employment laws and get you the fair treatment you deserve.

Rosenberg Law http://www.rosenberglaw.com/ is a Houston employment lawyer. Ryan Coisson is a freelance writer.

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An employment agreement is a written, binding contract between an employer and a prospective or current employee. When an employment agreement is properly drafted, it can be an effective tool for protecting a company’s resources. Most organizations require an employment contract as a condition of employment when the position is highly influential, involves sensitive trade secrets or client list information, or requires a significant amount of “front-end” cost such as extensive or specialized training.

When drafting an employment agreement, be sure to remember the following provisions:

1. Term of Employment: Specify when the employment period begins, and if it is for a definite or indefinite period of time.

2. Salary / Compensation: Specify the employee’s salary, whether it will be paid weekly or monthly. This provision may state the salary shall be payable at “regular payroll periods.”

3. Duties and Position: Describe what position the employee is being hired for, what the employee is being hired to do, what the expectations are, whether the duties may be modified at the Company’s discretion, and any other pertinent information relating to the job duties of the employee.

4. Full-time vs. Part-time: The Agreement must indicate whether the employee is devoting his or her services to the company on a part-time or full-time basis. If it is a full-time employment agreement, the company may want to force the employee to promise that during the term of the employment, the employee will devote full-time attention and energies to the business of the Company, and, during this employment, will not engage in any other business activity, regardless of whether such activity is pursued for profit, gain, or other pecuniary advantage.

5. Confidentiality: The Company will want the employee to agree that during or after the term of this employment, not to reveal confidential information, or trade secrets to any person, firm, corporation, or entity. This provision can provide for remedies if the employee violates this confidentiality provision, such as seeing an injunction or right to bring an action for damages. If confidentiality is important to the employer, the company will probably want to draft a separate Confidentiality and Non-Disclosure Agreement, which can serve as a separate agreement or as an addendum to the Employment Agreement.

6. Reimbursement: The Agreement should specify that the company shall reimburse the employee for reasonable business expenses upon receipt of an itemized account of expenditures.

7. Vacation, Disability, and Benefits: The Agreement should address the amount of vacation the employee will received, the Company’s disability policy, and the benefit package.

8. Termination of Employment: The Agreement should specify whether the company is allowed to terminate the employee “without cause” or only with “good cause.” Absent a termination provision, the Company will be allowed to terminate the employee for good cause, bad cause, or no cause at all, since the default scheme in the United States is for employees to work as “at-will” employees. However, a carefully drafted employment agreement by an employee’s counsel will likely include a termination provision specifying that the employee can only be terminated for good cause. Likewise, the company may want to seek assurance that the employee will not terminate the employment agreement absent good cause. This provision should also specify the amount of severance pay, if any, that will be awarded to the employee upon termination.

These are the most basic, key provisions that must be included in an employment agreement. Other boilerplate provisions relating to severability, assignment, and waiver are important to include as well. Above all, be careful to carefully draft these provisions so they are clear to both employee and employer alike.

Ross Zettler is an (employment agreement) Research Analyst for RealDealDocs.com. RealDealDocs is a division of Practice Technologies, Inc. the creators of SmartRules.com, which provides step by step guides to (local rules) and civil procedure for state courts & federal courts throughout the country.

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Just because your employer has a employee manual or employment agreement doesn’t mean the company’s got iron clad protection from their own screw-ups. Read my article on how to use the employee manual against your employer when things go south for you.

In the past 3 decades or so, American courts of all levels have recognized that there is more than one type of sexual harassment. While quid pro quo harassment has existed for decades, hostile environment claims have been recognized much more recently. In even more recent years, there has been an expansion by the courts of claims of hostile environment outside of the realm of sexual harassment.

The majority of employers are well aware of the problems that are related to sexual harassment and hostile work environments. To combat this, these employers have adopted strict policies prohibiting sexual harassment that inflict rapid punishment when and if it is discovered.

Unfortunately, as recent court decisions have shown, an employer who tailors the anti harassment rules of the workplace only to sexual harassment leaves itself open to lawsuits regarding other forms of harassment in the workplace. Therefore, it is in any employer’s best interest to tailor anti-harassment rules to any and all forms of harassment.

The Equal Employment Opportunity Commission, or EEOC, has taken the position that conduct constituting harassment on the basis on any protected class is unlawful. The EEOC has also decided that the same analysis used to determine if there has been a hostile environment for sexual harassment can be applied to cases involving any protected class. Protected classes, as defined by the various employment and anti-discrimination statutes and acts, include race, gender, religion, national origin, age, and disability.

There have been a number of recent decisions that conform to the position of the EEOC. For example, a recent lawsuit involving African-American and Hispanic employees suing their employer due to the racial slurs that existed in the workplace were able to pursue, and win, hostile environment claims on the basis of racial discrimination and national origin discrimination.

In addition, another court case found that an employer’s harassment policy was inadequate. The policy was inadequate because it only recognized and prohibited harassment regarding sexual advances and propositions and not harassment based on gender or other protected areas.

Some would think that common courtesy and general manners and etiquette would clue people in to the inappropriateness of their actions and words. Apparently, this is lacking. As a classic example, an employer lost a harassment or hostile work environment lawsuit following his complaints to an employee about a lack of availability on religious holidays. Following the critique of the lack of availability, the employer was clever enough to make a number of slurs against the employee regarding religion.

The Houston employment lawyers of the Ross Law Group recognize harassment in all forms and are prepared to legal actions to defend the rights of individuals to work in a stress free, harassment free workplace.

Joseph Devine

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Although California has the world’s eighth largest economy, experts anticipate difficult times ahead as the state struggles to recover from the recession. The UCLA Anderson Forecast Group has said they expected to see unemployment at 10% or higher through late 2011. The figures show that in today’s challenging economic climate where a steady paying job is as important as ever, a good understanding of employment law is a must.

According to the Bureau of Labor Statistics, California worker’s compensation system covers 15,256,000 employees working for over 800,000 employers in the state. These employees and employers generated a GDP of $1.8 trillion in 2007. In addition, 644,700 occupational injuries and illnesses were reported in 2007. Statistics also showed that in 2007, there were at least 229,871 compensation related hearings.

Some Companies Disregard Employment Laws

A steady paycheck offers more than just a way to provide for your family’s needs. It provides a sense of security that is hard to come by these days. Unfortunately, some employers intentionally or unintentionally neglect or refuse to pay their employees what they are rightfully owed under their contracts or under California law.

In September 2009, the California Labor Commissioner filed a $17.5 million lawsuit against the Federal Loan Modification Law Center for failing to pay their workers for all the hours worked.

In December 2008, the commission also filed a $250,000 lawsuit against an online health care company for unpaid wages. The commission hit the nail squarely when it argued that companies that fail to pay their employees when wages are due create hardships for employees who depend on their wages for the necessities of their family.

Know Your Employee Rights to Protect Yourself and Your Family

Sadly, many employers will go to great lengths to avoid paying their employees properly so they can maximize their profits, even if it means that families must struggle to survive. They count on their employees’ ignorance of employment law or their fear of confronting their superiors. Hence, it is important to be apprised of one’s rights for the sake of one’s self and, more importantly, one’s family.

For example, many employees are unaware that under California employment law, they are entitled to wages if they are forced to work through or miss a meal or rest period.

They’re also unaware that under California employment law, companies cannot deduct, subtract or withhold from an employee’s wages the cost of doing business. This means, for example, that if your company forces you to wear a uniform; they cannot force you to shoulder the expense of paying for and maintaining the uniform.

In addition, many employees do not know how to properly calculate wages due to them for overtime.

Aside from unpaid wages, employees also face the prospect of suffering workplace injuries. Statistics from California’s Department of Industrial Relations showed that in 2005, at least 456 employees were killed in occupational accidents. Out of the number, 384 were wage and salary workers and the majority were men between the ages of 35 and 44. Some common workplace injuries include slip and falls, back injuries, carpal tunnel syndrome and mental stress.

The Labyrinth Of Employment Law and Filing Claims

Unfortunately, fighting for one’s rights can be fraught with many obstacles. When the Government Accountability Office (GAO) recently discovered many troubling trends on how labor complaints were handled.

They discovered that the department tasked to enforce laws on minimum wage and overtime responded slowly to complaints and had a poor complaint intake process. In addition, they also found that many claims were insufficiently investigated. The same problems unfortunately plague California’s Division of Labor Standards Enforcement (DLSE). In short, these public entities do not have the resources or manpower to handle all of these labor complaints.

In addition to these obstacles, the process is made even more complicated by the fact that even the DLSE has no set criteria on how to define an independent contractor. This means that one must often look to the interpretations of courts and enforcement agencies to decide if in a particular claim, one is an employee or an independent contractor. Because of their lack of resources and inability to adequately investigate each claim that comes to the, the DLSE has even urged employees to enlist the help of an employment lawyer.

The author Oscar Wilde once said that the best way to appreciate one’s job is to imagine oneself without it. But having a job and not getting paid properly for it is not only frustrating, it is illegal.

In over three decades, BISNAR | CHASE lawyers have represented over six thousand people in car, motorcycle, truck, pedestrian and other personal injury cases. The law firm has an “AV” rating, the highest level of professional excellence, by Martindale-Hubble. John Bisnar, who is the author of this article, and his partner Brian Chase each have a “Superb 10/10″ Avvo rating, the highest possible. John was named a “Community Hero” by the United Way, while Brian was named a “Trial Lawyer of the Year” in 2004,one of the 2007 Top 100 Trial Lawyers, and a 2009 OC METRO Top Personal Injury Lawyer. Isn’t this the legal team you want representing you? For more information on employment law, visit http://www.employee-rights-attorneys.com or call 1-800-561-4887 for a free consultation.

Copyright 2009 BISNAR | CHASE. All Rights Reserved.

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