Employer Loses the Conciliation Argument

     A federal court recently held that the EEOC's failure to follow its statutory requirement to conciliate before filing a lawsuit is not a defense to the lawsuit.  Title VII states that "if the EEOC finds cause to believe that discrimination occurred, it must first attempt to conciliate the dispute with the employer before it runs to court to file a lawsuit."  This provision is meant to preserve Title VII's overall goal to expeditiously resolve employment discrimination matters without the expense of litigation. 

     In this case, EEOC v. Mach No. 3:11-cv-879 (S.D. Illinois December 20, 2013), the employer argued that the EEOC did not attempt to conciliate the case in good faith, and that since it ran short of resolving the matter outside of filing a suit, it should be barred from being able to file a suit.  However, the court disagreed.  The Seventh Circuit concluded that a court may not question the EEOC’s conciliation efforts, and an employer may not use the EEOC’s failure to conciliate as a defense to a Title VII claim.  This decision can only come to empower the EEOC over the employer in future cases.

If you are the victim of discrimination in the workplace, please contact Ambuter Law for your free case evaluation.

New OSHA Proposal

     On November 7, OSHA proposed a new rule to better track injuries and illnesses in the workplace by electronically reporting them on a quarterly basis.  The proposal does not add any new requirement to keep records; it only modifies an employer's obligation to transmit these records to OSHA.

     The new proposed rule will modify section 1904.

•  The first proposed change is for establishments with more than 250 employees (and who are already required to keep records) to electronically submit the records on a quarterly basis to OSHA. 
• The second proposed change will be that establishments with 20 or more employees, in certain industries with high injury and illness rates, be required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.  
• The third proposed change is that OSHA will require all employers who receive notification from OSHA to electronically submit specified information from their section 1904 injury and illness records to OSHA, or OSHA’s designee.

     OSHA plans on posting this data online.  The timely, establishment-specific injury and illness data will help OSHA be more effective by identifying workplaces where injuries and illnesses are more prevalent (which put workers at a greater risk), and enable employers to compare their injury rate to others in the same industry.

     The public will have 90 days, through February 6, 2014, to submit written comments on the proposed rule.  OSHA will hold a public meeting on January 9, 2014 in Washington, D.C.

If you are working in a hazardous environment or are the subject of discrimination, contact Ambuter Law for your free case evaluation.

So you think you have an employment case....

     So you think you have an employment claim against your employer?  Here are a few things that can help build your case.

Take Notes.  Take notes and keep a journal describing your employment claim in detail.  If discriminatory comments were made towards you, make sure you write down the comment along with the name of the offender and the day.  Just make sure to do this after work and on your own time - not company time.

Contact HR/Ethics Hotline.  Most employees are afraid to contact Human Resources or their company's ethics hotline in fear of retaliation.  While retaliation may be the reality for some employees, it's not the case for most.  Also, if you don't give your employer the opportunity to know about the work situation, they won't be able to fix it.  You can bet that if you don't make them aware of the problem, they'll use this as a defense down the road.  So, scary as it may be, let Human Resources in on the problem.

Be Honest.  Be honest about the situation at work.  Don't over embellish, or state things that didn't really happen.  This doesn't do anybody any good.

Hire An Attorney.  If you've made your company aware of the problems at work, but they refuse or fail to remedy the problem, it may be time to contact an attorney.  Make sure to hire an attorney who handles your type of case.  And follow the above rule - be honest.

If you are employment related claim, please contact Ambuter Law for your free case evaluation. 

Company Holiday Party Etiquette

     That's right.  It's back.  The office holiday party.  Here are a few things you need to remember when attending your company's holiday party.

Show up.  If you're invited to your company's holiday party, you should go.  It's an opportunity for you to meet people, and make a good impression on your boss and co-workers.

Dress code.  If there's a dress code, stick to it.  Your company's holiday party is not the time to be showing up in your tiny dress or wearing inappropriate clothing. 

Stay sober.  Getting drunk at your company's holiday party is a big no-no.  It's best to set a guideline before attending the party and sticking to it.  Now is not the time to party like you did back in college. 

Be engaged.  Don't act like you don't want to be at the party.  Talk to those around you.  Don't stand in the corner and text or play around on your phone.  Start conversations with friends and new people.

Say thanks.  Don't forget to say thanks when leaving the party.  Whether it's hosted by your company or a co-worker, a thank you goes a long way.

Miami Dolphins Take Heat For Bullying

     If anyone has watched the news lately, you can see that the Miami Dolphins are taking some heat based on the alleged discrimination against Jonathan Martin by Richie Incognito.  Incognito was suspended by the Dolphins indefinitely on November 4 after Martin turned in text messages and voicemails showing that Incognito used the N-word to describe Martin, as well as threatening his family.

     According to Incognito, his actions were coming from a place of love.  According to Incognito, "This isn't an issue about bullying. This is an issue of my and Jon's relationship where I have taken stuff too far. I did not intend to hurt him.  When the words are put in the context, I understand why a lot of eyebrows get raised. But people don't know how Jon and I communicate to one another."

     However, according to Martin's attorney, Martin endured a "malicious physical attack" in addition to the harassment that went far beyond locker room hazing.  

     When the news broke that Incognito was being suspended, many of the Dolphins teammates stood behind Incognito as opposed to Martin.  It is interesting to see how the harasser in this situation is being supported, as opposed to the victim.

     If you are the victim of discrimination in the workplace, please contact Ambuter Law for your free case evaluation.

Federal Workers Sue Government Over Pay During Shutdown

     On October 24, five federal prison workers filed suit against the Government alleging that they were required to work during the shutdown without receiving minimum wage and overtime for one pay period. 

     Unlike their furloughed counterparts, these employees were deemed "excepted" personnel and were required to work during the two week government shutdown, knowing they would get paid at a later time.  However, these five employees are arguing that they did not get paid on their regularly scheduled payday, but rather had to wait until a later date.  The suit claims that even if these workers were fully compensated at a later date, they were still paid less than the minimum wage on their scheduled payday. 

     At this time, the Justice department still has yet to file a response to the complaint.

If you have an issue regarding unpaid wages or discrimination in the workplace, please contact Ambuter Law for your free case evaluation.

Florida Minimum Wage Increasing in January 2014

     Effective January 1, 2014, Florida's minimum wage will be increasing from $7.79 to $7.93.  The increase is based on the rate of inflation and cost-of-living.  Florida's 14-cent increase is based on the 1.7 percent change in the Consumer Price Index for Urban Wage Earners and Clerical Workers for the South region from September 2012 to September 2013.

     The minimum wage for tipped employees is expected to increase from $4.77 to $4.91.

If you are the victim of discrimination or have a question regarding your employment rights, contact Ambuter Law for your free case evaluation.

EEOC Sues Company over Hair Policy

     The EEOC is suing an Alabama based insurance company for discriminating against black job applicants.  The EEOC alleges that the company's grooming policy prohibiting dreadlocks is discriminatory towards African Americans and therefore violates Title VII of the Civil Rights Act of 1964.

     In 2010, Chastity Jones applied for a position with the Alabama based insurance company.  Ms. Jones is African American.  During the interview, Ms. Jones wore her hair in "curllocks," which is another name for dreadlocks.  Ms. Jones was offered a position as a customer service representative.  However, when Ms. Jones met with Human Resources later day, she was informed that the company banned dreadlocks and that she would need to cut them off in order to obtain employment.  When Ms. Jones refused to cut her hair, the offer was rescinded.

     The EEOC argues that the hair policy discriminates against African Americans based on physical and cultural characteristics in violation of Title VII.  According to the EEOC's attorney, the "litigation is not about policies that require employees to maintain their hair in a professional, neat, clean or conservative manner," but "focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races."

     According to the District Director for the EEOC's Birmingham office, "[h]air grooming decisions and policies (and their implementation) have to take into consideration differing racial traits, and cannot penalize blacks for grooming their hair in a manner that does not meet normative standards for other races."

     This is the first time that the EEOC has brought a suit on behalf of an individual for dreadlocks.

If you are the victim of discrimination in the workplace, contact Ambuter Law for your free case evaluation.

The Government Shutdown and Your Business

     Even if you don't directly work for or work with the government, your business may be affected by the government shutdown.  Below is a list of five specific federal programs and agencies that are closed, thereby affecting employers over the course of the shutdown.

Equal Employment Opportunity Commission (EEOC)
During the shutdown, the EEOC is still required to accept charges, but it will not investigate them.  Nor will the EEOC litigate any claims in federal court or offer mediations during the course of the shutdown.

Department of Labor (DOL)
During the shutdown, all DOL employees are currently furloughed.  The shutdown ceases all non-emergency occupational and safety health inspections, wage and hour audits, hearings and appeals regularly conducted by the DOL.

National Labor Relations Board (NLRB)
During the shutdown, the Office of Inspector General hotline will remain operational.  However, the following services will not be available during the shutdown: investigations, hearings and elections, unfair labor practice charge docketing, settlements, litigation, administrative law judge and Board decisions, resolutions of workplace disputes, resolution of employee/employer disputes with a union, and Information Officer Services.

E-Verify
Employers must continue to use Form I-9 to verify new workers during the shutdown.  However, e-verify will not be available.

Department of the Treasury
The Department of the Treasury will continue to disburse Social Security benefits, automated revenue collections, daily cash management for the government, and payment of interest on the federal debt.  However, the IRS will cease conducting audits, examinations of returns, processing of paper returns, and call-center options for taxpayers.

Depending on the state, some agencies may limit their operations or completely shut them down during this time.

If you have an employment law question, contact Ambuter Law for your free case evaluation.

New Outlook for Gender Identity Discrimination

     As evidenced in a transgender discrimination case, the EEOC will not hesitate to pursue claims against employers for gender identity discrimination. 

     The EEOC settled a case on behalf of a transgender individual (the first of its kind) after following a landmark EEOC determination in 2012 that found that discrimination based on gender identity, change of sex, sex stereotyping or transgender status is a form of sex discrimination under Title VII.  Read the determination here.

     Based on this determination, the EEOC plans to focus on new emerging protected classes and the application of sex discrimination provisions for lesbians, gays, transgenders, and bisexual individuals.  However, while gender identity and sexual orientation discrimination are not protected classes under federal law at the moment, there are many states that protect these classes from discrimination.  But based on this milestone settlement, it's not hard to see that this class may be protected under federal law in the future.

If you are the victim of discrimination in the workplace, contact Ambuter Law for your free case evaluation.

EEOC Sues Mattress Firm for Age Discrimination

     The EEOC has announced today that it has filed suit based age discrimination against Mattress Firm on behalf of a group of older workers in the Las Vegas area. 

     Store managers and employees over the age of 40 were forced out and treated less favorably than newly hired younger employees.  These older employees were held to higher work standards, demoted to work under less experienced and younger staff, denied promotions, denied training, and had their commissions diluted.  Many of these older workers felt compelled to quit, and those who stayed were forced out. 

     The EEOC first tried to resolve the matter through the pre-litigation process of conciliation.  However, the EEOC was forced to file suit.  In the suit, the EEOC seeks back pay and liquidated damages, as well as injunctive relieft to prevent further age discrimination within the company.

If you are the victim of discrimination in the workplace, contact Ambuter Law for your free case evaluation.

Facebook "Like" Status and Your Job

     This week, the Fourth Circuit Court of Appeals held that "liking" a status on Facebook is Constitutionally protected free speech.  This decision came after a sheriff fired six employees who supported another candidate for sheriff by "liking" his Facebook post.  The Court found that "liking" the candidate was the equivalent of showing political support by putting a sign on their lawn, and therefore is Constitutionally protected.

 If you are the victim of discrimination or have been wrongfully terminated, contact Ambuter Law for your free case evaluation.

Does Lady Gaga Owe Unpaid Wages?

     Lady Gaga's former assistant, Jennifer O'Neill, has filed suit against Lady Gaga for unpaid wages.  O'Neil alleges that she is owed 7,168 hours of unpaid overtime pay, amounting to $393,000.00 based on her annual salary of $75,000.00. 

     In response to the allegation, Lady Gaga has filed a 200 page witness statement, where she called her former assistant "a disgusting human being," and states that she does not believe her former assistant is owed any money.

     In a legal document, Lady Gaga stated "[O'Neill] thinks she’s just like the Queen of the Universe. And, you know what? She didn’t want to be slave to one, because in my work and what I do, I’m the Queen of the Universe every day." 

     O'Neil claims that she had to virtually work 24 hours a day, 7 days a week, and that she never got a day off.  According to Gaga, that is not her problem “You know, I did six shows a week and I make a lot of money.  I work.  I work 24 hours a day. I’m not [the one] standing next to [someone] holding tea, waiting for them to take a sip, that is not what I do. Not that people that do that don’t deserve their pay, but I’m just pointing out that I deserve everything that I’ve worked for.  I deserve every dollar of it.  And she deserves every one of her $75,000 that we agreed to. But she does not deserve a penny more."

     You can read the case here.

If you believe that you are owed unpaid wages, contact Ambuter Law for your free case evaluation.

Do I qualify for Unemployment?

In order to receive unemployment compensation in Florida, you must meet the eligibility requirements.  In order to be eligible, you must meet the requirements below.

• Your past earnings must meet the required minimum thresholds;
• You must be unemployed through no fault of your own under Florida law; and
• You must be able, available, and actively seeking employment.

Also, in order to receive benefits, the State looks at your work history and earnings during a one-year "base period."  In Florida, the base period is the most earliest four out of the five complete calendar quarters prior to you filing your claim.

During the base period, your work history and earnings must meet all of the below requirements:

• You must have earned wages in at least two of the four calendar quarters that make up the base period;
• Your earnings in during the entire base period must be at least one and a half times your wages in the highest paid quarter of the base period; and
• You must have earned at least $3400 during the entire base period.

If you need help filing your unemployment claim, or fighting a denial of benefits, contact Ambuter Law.

Fired for Headscarf

     A Hollister sales associate was fired for refusing to remove her headscarf while working in the stock room.  The 19 year old sales associate stated that she wore the headscarf for religious reasons, and refused to remove it.  Two weeks after refusing to remove her headscarf, the associate was fired for violating the company's "look policy" which bans headwear.

     A federal judge ordered Abercrombie & Fitch, Hollister's parent company, to pay the former associate damages for violating discrimination laws. 

     When the sales associate was terminated in 2010, she filed a complaint with the Equal Employment Opportunity Commission (EEOC).  At the time she had filed her complaint, the EEOC was investigating two similar claims against Abercrombie & Fitch.  Both claims involved women stating that Abercrombie & Fitch would not hire them because they wore hijabs.

     According to court records, Abercrombie & Fitch rejected a deal made by the EEOC that stated that all employees should be able to wear headscarves.  Abercrombie & Fitch supposedly rejected the deal, stating that  store associates “reinforce the aspirational lifestyles represented by the brands,” and that they are “a central element in creating the atmosphere of the stores.”  Abercrombie & Fitch also argued to the court that store associates should be classified as “living advertisements” and that their appearance is protected by commercial speech.

     However, the federal judge presiding over the case could not find that letting associates wear hijabs hurt sales.  Damages paid to the victims will be determined at a future date.

If you are the victim of employment discrimination, please contact Ambuter Law for your free case evaluation.

Negative Job Outlook for Disabled Workers

     In a U.S. News & World Report article released today, an August report showed a negative outlook for disabled workers looking for work.  The report showed that fewer disabled workers are employed and participating in the workforce and that more are looking for work. 

     The August report also showed that despite small improvements in the job market, working age people with disabilities who are employed had continued to decrease, which was not the case for those without disabilities; those without disabilities showed a slightly more positive employment outlook. 

     As stated by Andrew Houtenville, an associate professor of economics at the University of New Hampshire's Institute on Disability, "It looks like people with disabilities participated in the Great Recession – they lost jobs, they exited the labor force – but they're slower to recover.  This is a trend that we may see continue and I think the fear of everyone involved in employment policy ... would be that people with disabilities don't recover from the recession."

     Despite the negative trends, the Kessler Foundation CEO has stated that some Fortune 500 companies are implementing programs to hire those with disabilities.

     To read the full article, click here.


     If you are the victim of discrimination in the workplace, contact Ambuter Law for your free case evaluation.

Court Clerk Fired for Helping Wrongfully Accused Man

     Sharon Snyder, a Kansas City, MO court clerk, was fired in June for giving a wrongfully accused man, Robert Nelson, a public document that showed him how to seek a DNA test.  Robert Nelson was able to obtain a DNA test and he was released from prison 30 years after his wrongful rape conviction.  Sharon Snyder gave Robert Nelson's sister a motion seeking DNA evidence from a different case.  The motion was a public document, and Nelson's sister could have obtained it on her own if she had known where to look.  However, five days after giving the motion to Nelson's sister, Sharon Snyder was forced into early retirement.  Sharon Snyder, 70 years old, reported that she "would do it again" if she had to.

If you were wrongfully terminated from your job, please contact Ambuter Law for a free case evaluation. 

Lawsuit against Paula Deen Dropped

     On Monday, August 12, the federal judge presiding over the discrimination case against Paula Deen threw out the race discrimination charges. 

     Last year, Lisa Jackson sued Deen and her brother, Bubba Hiers, saying she suffered from sexual harassment and race discrimination during the five years she worked as the Manager at Uncle Bubba's Seafood and Oyster House.  Deen is the co-owner of this restaurant which is primarily run by her brother. 

     On Monday, Judge William T. Moore, Jr. agreed with Deen's and Hiers's attorneys, finding that Jackson had no standing to sue her former employers for what she alleges was poor treatment black of workers, regardless of her claims that she was placed under stress due to the work environment.  Jackson is white.

     In his ruling, Moore wrote that, if anything, Jackson "is an accidental victim of the alleged racial discrimination.  There are no allegations that defendant Hiers's racially offensive comments were either directed toward plaintiff or made with the intent to harass her."

     The ruling lets stand Jackson's claims for sexual harassment from 2005 until 2010. 

     Deen's publicist said Monday Deen is pleased with the judge’s decision.  "As Ms. Deen has stated before, she is confident that those who truly know how she lives her life know that she believes in equal opportunity, kindness and fairness for everyone." 

     However, due to the discrimination that was alleged against Deen, she was dropped from major corporate sponsors and the Food Network.

If you are the victim of discrimination in the workplace, please contact Ambuter Law for your free case evaluation.

Abercrombie & Fitch Under Investigation in France

     In July, a French rights group, Le Defenseur Des Droits, announced that it was going to investigate Abercrombie & Fitch for possible discrimination.  The activist group alleged that Abercrombie & Fitch's "models" are actually salespeople, and that Abercrombie & Fitch's hiring and recruiting practices are discriminatory. 

     The head of activist group, Dominque Baudis said that the retailer seems "to base its recruitment methods on discriminatory criteria and particularly on physical appearance." 

     Leon Glenister, a London based attorney, stated "the reason the company's recruitment attracts so much interest is for moral reasons rather than legal ones.  But if a company says it only wants to hire good-looking people, they are in dangerous water."

     While it isn't illegal to hire an individual based on looks, this opens the door to many legal pitfalls.  According to Michael Scutt, an employment solicitor at Excello Law told CNBC, "for example, if a black person or older person is not hired because they are not 'attractive', they could be more likely to bring a discrimination case against the company on race or age grounds."  Leon Glenister agreed with this statement.  "In this case, the defendant can say it's justified because they have a business image to protect, which would be quite interesting," Glenister added. 

     Abercrombie's CEO Mike Jeffries admitted in 2006 that it deliberately recruited attractive staff for marketing reasons.  "That's why we hire good-looking people in our stores," he said in the interview. "Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don't market to anyone other than that."

     It will be interesting to see how the retailer handles the investigation by the French activivist group, as well as the potential other investigations that may follow.

If you are the victim of discrimination in the workplace, contact Ambuter Law for your free case evaluation.

Fired for Blogging

     Shea Allen, A Huntsville, AL reporter was fired Monday, July 29, 2013 for blogging about her job.  The reporter decided to write a "tell-all" blog about her job.  Ms. Allen states that she meant for the blog to be taken as a joke and as funny; however, her employer didn't see it that way.  Below is a list of some of the reporter's "confessions."

1. I've gone bra-less during a live broadcast and no one was the wiser.
2. My best sources are the ones who secretly have a crush on me.
3. I am better live when I have no script and no idea what I'm talking about.
4. I've mastered the ability to contort my body into a position that makes me appear much skinner in front of the camera than I actually am.
5. I hate the right side of my face.
6. I'm frightened of old people and I refuse to do stories involving them or the places they reside.
7. Happy, fluffy, rainbow stories about good things make me depressed.
8. I've taken naps in the news car.
9. If you ramble and I deem you unnecessary for my story, I'll stop recording but let you think otherwise.
10. I've stolen mail and then put it back. (maybe)

Upon seeing the post, her bosses immediately asked her to take it down.  Ms. Allen obliged, but then re-posted the blog a few hours later adding the headline, "No Apologies." 

This post was taken down because I was momentarily misguided about who I am and what I stand for. To clarify, I make no apologies for the following re-post. It’s funny, satirical and will likely offend some of the more conservative folks. But it isn’t fake and its a genuine look into my slightly twisted psyche.

Here’s the thing, I’ve vowed to always fight for the right of free expression. It’s allowed, no matter what the profession. I pride myself in having earned the respect of many because I make no apologies for the truth and hold nothing back. I don’t fight for things because they serve me, I fight for them because they are right. Sources trust me because I am an unadulterated version of the truth. I won’t ever bend just because its popular to do so and I’m not bending now.

On Monday, Ms. Allen reported that she was terminated without cause.

If you have a question about your employment rights, please contact Ambuter Law for your free case evaluation.

"Pay or Play" Deadline Extended until 2015

     Earlier this month, the Obama Administration announced a delay in applications of penalties associated with the employer shared responsibility under the Affordable Care Act.  As a result of the delay, the Department of the Treasury announced on its website that the administration will not be assessing penalties against large employers under the "pay or play" rules until 2015.  What this means is that employers with 50 or more employees will have additional time to consider  how the "pay or play" rules apply to their business model and more time to consider how to apply to those rules.

If you have a question regarding your employment rights, please contact Ambuter Law for a free case evaluation.

EEOC Sues Companies over Background Checks

     In recent weeks, the EEOC has filed suits against BMW and Dollar General over the companies' broad use of criminal background checks to illegally discriminate against minority groups.

     According to the EEOC, BMW fired dozens of African-American employees at one of its South Carolina plants during what was deemed "a transitional period" that required employees to reapply for their jobs.  A BMW contractor performed background checks on those who re-applied.  However, many of the African-American employees were not re-hired as they had criminal convictions.  The EEOC is alleging that BMW wrongfully considered these criminal convictions when determining to re-hire certain employees.  The EEOC's position is that the criminal backgrond check had a disparate impact on minorities who re-applied, and therefore this practice violated Title VII.

     In the case against Dollar General, the EEOC alleges that Dollar General withdrew employment offers from two (2) African-American women.  One of the offers withdrawn was from an African-American woman that had a drug conviction that was six (6) years old.  Dollar General's policy is that it disqualifies certain candidates for employment if they have a certain type of conviction within ten (10) years.  The other woman who was later disqualified reported that her criminal background check contained errors.  Even after Dollar General learned of the errors on her report, they would not employ her.

     In these cases, the EEOC's position is that these companies violated Title VII and that neither company will be able to show good cause for disqualifying minorities for positions. 

If you have a question regarding your employment rights, please contact Ambuter Law for a free case evaluation.

Who is a "Supervisor"

    In the recent Vance v. Ball State University decision, the U.S. Supreme Court adopted a new definition of "Supervisor" under Title VII.  Now, an employee is a "supervisor" only if he/she is empowered by the employer to take "tangible employment actions" against the victim.  The Vance decision overrules lower court decisions and the EEOC, which had previously ruled that an individual is a "supervisor" if that individual merely directs the daily activities of another employee.

     Based on prior U.S. Supreme Court precedent, an employer was considered strictly liable if the supervisor's harassment culminated in "tangible employment actions."  Such actions included "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."  See Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  If no tangible employment action is taken, the employer may escape liability if it can demonstrate two things:

1. it exercised reasonable care to prevent and correct any harassing behavior, and
2. the employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

     This new ruling is very important.  For one, it is pro-employer.  The ruling limits the scope of an employer's liability for workplace harassment by limiting the definition of "supervisor."  Also, the new definition of "supervisor" is one that can now be readily applied by employers.

If you believe you were harassed or discriminated against in the workplace, please contact Ambuter Law for a free case evaluation.

Employee Handbooks

     An employee handbook is a crucial way for an employer to communicate with an employee effectively.  Employee handbooks allow employees to know what is expected of them, as well as describe the company's vision and goals.  Employee handbooks should also outline an employee's rights under the law.

Anti-Discrimination Policies
For instance, employee handbooks need to explicitly outline the company's anti-discrimination policies.  As an employer, the company must comply with the Equal Employment Opportunity laws regarding discrimination and harassment, along with applicable state laws.  

Non-Disclosure Agreement
Although non-disclosure agreements are not legally required, it may be a good idea to have an employee agree to a NDA if the company wants to protect trade secrets.  This also helps the employee know what is expected from him/her.

Compensation
It is always a good idea for employers to lay out how compensation is calculated, along with overtime pay and sick pay.  This way there is little confusion regarding how an employee is compensated.

Computer/Technology
With technology constantly evolving, it is important to outline for employees what the company's policies are regarding computer and technology usage.  For instance, an employer should want to limit computer and technology usage to only business related tasks.  With social media on the rise, it is also a good idea to outline the company's expectations regarding social media in the workplace.

Disciplinary Procedures
It is a necessity to outline disciplinary procedures in employee handbooks.  This allows employees the ability to understand the disciplinary process, as well as for employers to have a guideline regarding certain types of misconduct.  

Safety Policies
It is always a good idea to describe the employer's mission to provide employees with a safe and secure environment in compliance with OSHA.  Safety policies also should discuss what employees should do in hazardous weather conditions.

The above is non-exhaustive list of some of the clauses that can be included in an employee handbook.  If you need assistance drafting or interpreting an employee handbook, please contact Ambuter Law.

Litigation vs. Arbitration

     Arbitration clauses are becoming more and more prevalent in contracts, as well as in terms of accepting employment.  What are the pros and cons of arbitration?  Look below to find out.

Pros:
1)  Speed.  Arbitration can take as little as 60 days if it is a case that involves less than $75,000.00.  Litigation, on the other hand can take anywhere from 9 months to over a year if the case is continued.

2) Cost.  Since arbitration takes less time than litigation, the costs involved are substantially less.  Also, arbitration only allows a limited amount of discovery, also the costs involved. 

3) Arbitrator v. Judge.  In arbitration, the arbitrator is usually an individual who has specialized in the type of law that the arbitration involves, or has a large breadth of knowledge on the topic.  On the other hand, judges may not know a lot about the type of case being presented, and therefore may not make as much of an informed decision that an arbitrator would.

4) Confidentiality.  Usually an arbitration is private, and the dispute itself and the terms of any agreement are kept private and confidential.

Forum.  Arbitration can agreed to be held in any location, even if the act occurred elsewhere.

Cons:
1) Discovery.  In arbitration, there is a limited amount of discovery.  While this can keep costs down, it also can limit the ability to prove your case.

2) Appeal.  In arbitration, you cannot appeal your case.  Once a decision is made, it is binding and appeals are not allowed, unlike in litigation. 

If you have a question regarding an employment situation, please contact Ambuter Law for a free case evaluation.

Occupational Safety and Health Act (OSHA)

     OSHA was enacted in 1970 to ensure safe working conditions for all American workers.  OSHA requires employers to provide hazard free working conditions and imposes harsh penalties on those who fail to do so.

     OSHA has four main provions:

1. Compliance:  Employers must comply with OSHA standards, or if they are in a state plan state, by the state agency.
2. Safety:  Employers must keep their workplace free of recognized hazards.
3. Inspection:  Employers must submit to OSHA inspections.  If they are in a state plan state, then they must submit to OSHA approved state inspectors.
4. Employee Rights:  OSHA gives employees the right to request information about workplace hazards, refuse to work in hazardous environments, and get involved in workplace safety issues without fear of employer retaliation.

      Also, employers must maintain accurate records of all work-related accidents and diseases, as well as inform employees of their protections and duties under the law.

Regulated Employers:
     OSHA covers virtually all private businesses, regardless of size, as long as they employ at least one person and are located in one of the 50 states, the District of Columbia, and other U.S. territories. 

Covered Workers:
     OSHA applies to any employee of a covered employer, regardless of the employee's title, status, or classification.  OSHA does not apply to independent contractors.

How OSHA is Enforced:

1. Individual Complaints:  Employees can complain to OSHA, or to the OSHA approved agency if they live in a state plan state.
2. Agency Enforcement:  Except in state plan states, OSHA (the act itself) is enforced by OSHA, a division of the Department of Labor.  In state plan states, the law is enforced by an OSHA approved state equivalent.

For more information, please visit the Department of Labor website.

If you are working in a hazardous and unsafe workplace, please contact Ambuter Law for a free case evaluation.

Social Media Workplace Laws

     In 2012, six states passed legislation regarding social media in the workplace.  These states are: California, Delaware, Illinois, Maryland, Michigan, and New Jersey.  These states have made it so employers are not legally allowed to ask their employees for passwords for personal internet accounts, i.e. email, banking and social networking sites, etc. in order for that employee to keep his/her job.

     In 2013, three more states passed legislation regarding social media in the workplace.  These states include New Mexico, Utah, and Arkansas.

     Some states have similar legislation to protect students in public universities and colleges from having to grant access to their social media accounts.

For more information regarding social media laws in the workplace, please visit the National Conference of State Legislatures.

If you are the victim of discrimination or harassment in the workplace, please contact Ambuter Law.

FMLA vs. Short Term Disability

     I have had many clients ask me what is the difference between FMLA and short term disability.  I  have also had clients ask me if they can take FMLA and short term disability concurrently.  The answer to the latter is:  yes. 

     FMLA provides job security, but no compensation for lost wages.  If you decide to take FMLA and not short term disability concurrently, your job will be secured while you are on leave.  However, you will not be entitled to lost wages while you are on leave.  However, if your employer offers short term disability, you can take the short term disability concurrently with FMLA and receive compensation during the time that you are out.

     How is leave under the FMLA decided?  Whether you are granted leave under the FMLA is determined by your employer.  You must provide your employer with your medical condition, as well as a doctor's note supporting your leave request.  Once you put your company on notice of your FMLA request, your doctor will  be required to submit an FMLA certification form.  If your employer grants you FMLA, you are eligible to take leave for a period of twelve (12) weeks. 

     How is short term disability decided?  Whether you are granted short term disability is determined by your employer's disability insurance carrier.  Inform your employer's Human Resources' department that you are requesting short term disability, and they or the insurance carrier should provide you with the appropriate paperwork.  Usually you will be providing the same type of information for short term disability that you would be for FMLA.

If you have questions regarding your FMLA rights, please contact Ambuter Law.

At-Will Employment

     What is employment-at-will?  At-will employment is defined as employment where an employer can terminate an employe at any time for any reason, except an illegal one, or for no reason without fear or incurring any liability.  The same works for the employee.  An employee is free to end his/her employment for any reason without fear of incurring any liability or adverse legal action.  Also, under at-will employment, an employer is free to change the terms of employment, such as wages or job responsibilities, with no notice and no consequences.

     At-will employment can be modified by an employment contract.  A contract may provide for a specific term of employment, or specify that employment may be terminated only for cause. 

     Many states also have common law exceptions to at-will employment.  Those exceptions include public policy, implied contract, and implied covenant of good faith.  However, these exceptions do not apply to Florida.

For more information on at-will employment, please click here.

If you have any questions regarding at-will employment, please contact Ambuter Law.

What does "Right to Work" Mean?

     What does it mean to live in a "Right to Work" state?  What it means is that gives the right of every American to work without being compelled to join a union.  It also means that unions cannot require workers to pay full dues even if they are working in a union shop.  Employees who were part of a union and wish to cancel their union membership are allowed to do without penalty or fear of losing their job.  However, nonunion employees who are represented by unions when filing grievances are responsible for paying unions for the portion of time spent representing them.  There currently are 24 "Right to Work" states.

     "Right to Work" is not to be confused with "At Will" employment.  

If you have any questions regarding Florida's "Right to Work" law, please contact Ambuter Law.

Florida Non-Compete Agreements

So your boss has asked you to sign a non-compete agreement.  Here's what you need to know. 

• Florida Statute 542.335 governs non-competes entered into after 1996, and Florida Statute 542.33 governs non-competes entered into before 1996.

In order for the non-compete to be enforceable, it must:

• be reasonable in time, area, and line of business,
• have reasonable business interests that exist to justify the restrictive covenant, and
• the non-compete must be reasonably necessary to protect the legitimate business interests.

The statute provides a list of non-exhaustive legitimate business interests.  Such interests include:

• trade secrets,
• confidential business information,
• substantial relationships with specific prospective or existing customers, and
• extraordinary or specialized training.

After determining that legitimate business interests do exist, a court will determine if the time and geographical restrictions of the non-compete are reasonable.  In Florida, less than six (6) months is presumptively reasonable, and more than two (2) years is presumptively unreasonable.  Regarding geographical restrictions, courts usually will not a non-compete in which the enforcing party does not do any business.

If you have questions regarding your non-compete agreement, contact Ambuter Law for your free case evaluation.

EEOC's Strategic Enforcement Plan

     On February 22, 2012, the EEOC approved a Strategic Enforcement Plan for 2013-2016.  The plan sets forth a framework for achieving the EEOC's mission to end discrimination in the workplace.  The Strategic Plan identifies six national enforcement priorities.  Those include:

1. Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
   
2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
   
3. Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
   
4. Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
   
5. Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.
   
6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
   
    Based on this, employers should expect to see a very active EEOC over the next few years.
   
   If you are the victim of discrimination in the workplace, please contact Ambuter Law for your free case evaluation.
   
   
   
   

ADEA Facts

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees and applicants age 40 or older.  In some instances, there are exceptions, such as if an employee’s age affects his/her ability to perform certain jobs effectively.

So who exactly is a regulated employer?  Regulated employers include:

• private employers with 20 or more employees
• state and local governments
• employment agencies, and
• labor organizations.

Who is considered a covered worker?  To be protected under the ADEA, a worker must be:

• be a current or prospective employee of a covered employer
• be at least 40 years old or older.

What's prohibited?  The ADEA applies to all aspects of employment including:

• hiring
• firing
• compensation
• benefits
• job assignment and transfers
• employee classifications
• promotions
• layoffs and recalls
• training and apprenticeship programs
• retirement plans, and
• time off.

The ADEA also prohibits employers from retaliating against employees who complain of age discrimination or otherwise assert their rights.

If you are the victim of age discrimination, please contact Ambuter Law for your free case evaluation.