Important employment law development in federal disability law

The EEOC has issued its final implementing regulations for the American with Disabilities Amendments Act.

EEOC probing whether hiring practices discriminate against unemployed applicants

In the Legal Intelligencer (2/25), employee rights attorneys Jeffrey Campolongo and Jennie Maura McLaughlin reported the Equal Employment Opportunity Commission is investigating whether employers' hiring practices discriminate against the unemployed. At a February 16 EEOC public meeting, National Employment Law Project Executive Director Christine Owens pointed to several job postings in which employers specified they would not consider unemployed applicants. Owens "also provided anecdotal evidence that recruiters and staffing agencies have been informed by their clients that they will not be considering people who have been out of work for more than a specified period of time." The claim was questioned by others, including a YMCA human resources executive, who suggested unemployed candidates may possess outdated skills "compared with a candidate whose skills are fresh ..."

Company fires woman who claimed sexual harassment

From American Association for Justice's TRIAL Magazine:

"Lynda Beck, 42, began working in the accounts payable department of Guardian Leasing, Inc. Over the next several months, her supervisor, Harrindor Singh, began asking inappropriate questions about Beck’s sex life and making sexually suggestive gestures. Singh also grabbed Beck’s buttocks and rubbed her leg at work.

Beck rebuffed his advances and complained to the company’s owner and son. After a one-day investigation, they told her that the harassment could not be substantiated.

Beck was subsequently fired for poor performance. She had been earning about $25,000 annually and was out of work for seven months before finding similar employment. Within two years, she was laid off from that job and is now unemployed.

Beck sued Guardian Leasing, alleging sexual harassment and retaliation under Texas law.

The jury awarded $868,000, including $750,000 in punitive damages."

 

Supreme Court's retaliation ruling a boon to employees.

In ongoing analysis of the Supreme Court's ruling on third-party retaliation suits, the Wall Street Journal Law blog reported that Federal law prohibits employers from retaliating against a close relation of a worker who filed a discrimination complaint. Writing on behalf of a unanimous court, Justice Antonin Scalia noted an anti-discrimination provision in the Civil Rights Act of 1964 includes "a broad range of employer conduct" that could dissuade "a reasonable worker" from protesting prejudice.

        The Wall Street Journal The Juggle" Blog suggested the ruling will prohibit employers from using retaliation as a scare tactic. It added that the opinion comes as the Equal Employment Opportunity Commission is seeing a rise in retaliation claims against employers.

LATimes says Wal-Mart class-action ruling will set precedent for discrimination cases.

The Los Angeles Times editorializes in favor of a Supreme Court ruling granting class-action status to nearly 500,000 female Wal-Mart employees in a discrimination suit. The Times argues, "class-action suits are often the only way to achieve justice for workers who can't - and shouldn't have to - proceed with anti-discrimination claims individually." It calls the case, which accuses the retailer of paying women less than men "a bold attempt to persuade a conservative Supreme Court to dramatically narrow the criteria for determining what a class is." The Times praised the ruling of an appeals court, which found class certification "reasonable in this case." The Times concludes a ruling in favor of Wal-Mart would mean courts have adopted "narrow interpretations" of civil rights laws "that close the courthouse door to victims of bias."

Class action suits rise as employers misclassify workers.

The USA TODAY has reported that, "The number of worker class-action lawsuits claiming that employers misclassified them as independent contractors rose 50% this year to a record 300 or so, says Garry Mathiason, vice chairman of labor law firm Littler Mendelson." Consequently, "state and federal authorities, as well as workers themselves, sharply increased crackdowns this year on companies that misclassify employees as independent contractors." Interstate Labor Standards Association head Jack Finn says states have passed about 20 laws in "the past two years that make it easier to force employers to reclassify contractors as employees and seek unpaid taxes." USA Today notes "Companies are increasingly using contractors to meet peaks in demand and complete short-term projects. The trend intensified in the recession as firms cut staff."

Whistleblowers instrumental in recovering millions in fraud cases.

The National Law Journal reported since 2009, the US Justice Department recouped over five billion under the False Claims Act, much of which came from "health care fraud recovery." Assistant Attorney General Tony West of the Civil Division said the $4.6 billion came from "cases of procurement fraud, grants for small businesses and federal and Indian mineral leases." West also noted that "most of the cases that resulted in a recovery of taxpayer money were brought through the whistleblower provision" of the Act.

Civil Cases Filed Against Employers Withholding Money from Retirement or Health Accounts

The Department of Labor says employers are illegally withholding employee contributions to 401(k) and health benefits accounts. the department has filed suit against 24 companies alleged to have kept money that was withheld from employee paychecks that was meant for retirement or health accounts.

Court Orders employee reinstated

A court has ordered a Putnam County employee to be reinstated to her job after being fired for what she claims was criticism over county policy. Barbara Koblinsky, 40, worked as a sanitarian with the department for about two years until she was fired for "insubordination" in February.  But a ruling from Administrative Law Judge William B. McGinley orders Koblinsky be reinstated. The health department also is ordered to give Koblinsky back pay with interest, plus benefits and tenure for "denial of statutory rights as a public employee." The County Health Department intends to appeal the Court's order of reinstatement. 

Worker Rights Extend to Facebook

The National Labor Relations Board has decided that worker rights extend to Facebook.  This groundbreaking decision arose when a woman was fired from her position after criticizing her supervisor on her Facebook page.  The acting General Counsel for the NLRB stated, "This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."

Can verbal complaints meet the FLSA standard?

The National Journal is reporting that "The Supreme Court on Wednesday wrestled with the meaning of the word 'file' in a job retaliation case with potentially huge ramifications for workers who allege wage-and-hour violations by their employers." At "the core of Kasten v. Saint-Gobain Performance Plastics is language in the act's anti-retaliation provision stating that an employee who 'file(s) any complaint' is engaged in protected activity." A "federal district court and the US Court of Appeals for the 7th Circuit" had ruled against Kevin Kasten, "holding that the anti-retaliation provision in the Fair Labor Standards Act (FLSA) protects internal complaints only if they are written."

Citigroup uses the recession to fire women

The New York Times is reporting that Citigroup used the recent financial meltdown as a means to rid its workforce of scores of women employees in order to save the jobs of less qualified men employees. 

Charleston Gazette calls for stronger whistleblower protections

In an editorial, the Charleston Gazette has called for stronger whistleblower protections.  The newspaper urges Congress to implement stronger federal protections to protect employees who become whistleblowers in their respective field.  The editorial comes on the heels of a recently released government study which finds that the Department of Labor is not doing enough to provide adequate management attention to whistleblower programs. 

Workers File More Claims Citing Bias in Layoffs

Recent evidence shows that more lawsuits for wrongful termination are filed as larger companies continue to layoff employees.  This is mostly contributed to the fact that when companies start laying off employees, the companies often layoff older workers and disabled workers first, violating employment law policies. 

Muslims Report Rising Discrimination at Work

The New York Times reports that discrimination claims from Muslim employees are on the rise.  At a time of growing tensions involving Muslims in the United States, a record number of Muslim workers are complaining of employment discrimination, from co-workers calling them “terrorist” or “Osama” to employers barring them from wearing head scarves or taking prayer breaks.  Such complaints were increasing even before frictions erupted over the planned Islamic center in Lower Manhattan, with Muslim workers filing a record 803 such claims in the year ended Sept. 30, 2009. That was up 20 percent from the previous year and up nearly 60 percent from 2005, according to federal data.

Editorial from the NYT: Shortchanging America's Women

From today's New York Times, this editorial advocates for the passage of the Paycheck Fairness Act.  In addition, the editorial provides a link to the actual act so that individuals can read the language of the Act.  In essence, the Act would push for higher standards on employers to further narrow the pay disparity between women and men.  Currently, women earn 77 cents for every dollar a man earns. 

Study: Sex Discrimination Could Explain Partner Pay Disparities

A new study has found that sex discrimination could explain why female partners, as a whole, earn less than their male counterparts.  Click the link to read more. 

Facts on Sexual Harassment

This is a nice, concise website that contains general facts about sexual harassment.  The website is hosted by the Equal Employment Opportunity Commission and gives the reader general information about sexual harassment and an overview of how the EEOC handles sexual harassment complaints.

More ADA claims filed in 2009 than in any other year

The Equal Employment Opportunity Commission has released statistics that more people filed complaints of disability discrimination under the Americans with Disabilities Act in 2009 than in the past 20 year history of the ADA.  Reports credit this increase to a new amendment to the ADA which broadens the definition of what it means to be disabled as well as the recession. 

More Men Filing Sex Discrimination Suits, Statistics Show

Interesting article highlighting new statistics from the EEOC showing that more men are filing sexual discrimination suits.  EEOC statistics show that the number of men filing sexual harassment claims has doubled from 8 percent to 16 percent in the past twenty years. 

Michigan Wal-Mart worker using medical marijuana sues over firing

Although medicinal marijuana remains illegal in West Virginia, this can easily be paralleled to a disability discrimination lawsuit where an individual is fired for taking prescription pain medications.  It will be interesting to see how this case plays out in Michigan and how many companies follow in Wal-Mart's footsteps.   

A Michigan man who was fired from Wal-Mart when he failed a drug test due to his use of medicinal marijuana has filed a lawsuit against his former employer. Joseph Casias claims in his lawsuit that in November 2009 he twisted his knee while at work. Under Wal-Mart policy, employees who are injured at work must take a drug test. The lawsuit claims that Casias showed his bosses the paperwork from the state allowing him to use medicinal marijuana to alleviate pain from a brain tumor, but he was fired regardless after failing the drug test. The lawsuit seeks unspecified damages.  Gina Damron, Detroit Free Press  06/29/2010

Pharmacist sues Wal-Mart for unlawful termination after complaints of understaffing

Former pharmacist-in-charge of Wal-Mart's Spring Mills pharmacy in Berkeley County, WV has filed suit against Wal-Mart in the Circuit Court of Berkeley County in Martinsburg, WV. David Wasanyi alleges that Wal-Mart terminated his employment in retaliation for his complaints of understaffing the pharmacy and his safety concerns for the customers. Mr. Wasanyi alleges that he was required to work 13 hours a day, seven days a week and perform the amount of work normally performed by four pharmacists. He contends that the overwork lead to unsafe conditions in the pharmacy. After he complained, Mr. Wasanyi alleges that Wal-Mart retaliated against him by terminating his employment. Mr. Wasanyi is represented by Harry P. Waddell of Martinsburg, West Virginia.

EEOC and Maryland Attorney settle FMLA and ADA claims for $125,000

Attorney Kathleen Cahill of Towson, MD, and to Maria Morocco of the EEOC's Baltimore office obtained a $125,000 settlement on behalf of a client, whose employer refused to allow her to return to work after she recovered from surgical complications related to her breast cancer.

The claims brought on behalf of the plaintiff included a Family Medical leave Act (FMLA) claim as well as a claim under the Americans with Disabilities Act (ADA).  The client is presently cancer-free.

Excellent employment law website is now open to the general public

Tom Garlands' digest of federal employment law decisions around the country was for years a subscription only service which he provided to legal professionals in the field of employment law.  He has now opened his excellent website as a free resource to the general public.  The site contains a wealth of cases from the federal circuits dealing with all aspects of employment law.  Topics include Title VII, ADA and ADEA cases covering sex, race, disability and age discrimination and harassment, federal wage and hour law, FMLA claims and a variety of employment issues. The website is an excellent research tool for lawyers and a source of information for anyone with questions regarding employment issues.  The website address is www.garlands-digest.com.  There is a direct link to the site contained on the resources page under employment.

If your employment is terminated you may be able to continue your health insurance coverage with 65 percent of your premium paid by your employer

New changes in federal law under COBRA may allow you to continue your health insurance after your employment is terminated with a 65 percent contribution to your monthly insurance premium paid by your employer.  Under the old rule you were required to pay the entire insurance premium to keep your health insurance in effect after employment termination.  The change is part of President Obama's economic measures to assist persons in the present economy.  Check the library on this website for an article explaining the changes in the law and answering common questions.