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One of the common calls I get goes like this: “I was just fired on my day off. They didn’t give me a reason. They won’t meet with me. This can’t be legal.”

It sucks. It feels like you couldn’t have possibly done something wrong if you weren’t even at work. I get it. People often feel that they are entitled to a face to face meeting before being fired or an explanation, and I understand that too. Unfortunately, if you don’t have a union contract, protections as a governmental employee, or some other specific rights that guarantee such a meeting, there’s no legal requirement for that.

And, there isn’t anything automatically illegal about firing someone on their day off, unless something else is going on.

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Hey folks,

I maintain a very busy and probably too loud presence on Twitter, found @erlichlawoffice, but this blog has gone long underserved and ignored.

I’m going to fix that with posts coming this week and more to come soon. Generally, I’ll write the posts, but some might come from other attorneys at the office.

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bar-872161_960_720Earlier this month, the United States Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Diallo’s of Houston, a nightclub and party venue, alleging that Diallo’s violated the Americans with Disabilities Act (“ADA”) when it demanded an employee provide medical documentation that she was not HIV-positive, according to The National Law Review. When the employee did not produce the documentation, Diallo’s fired her in violation of the ADA.

In the lawsuit, EEOC alleges that the Diallo’s owner/manager informed the employee that he had heard she was HIV-positive from another individual. The owner/manager reportedly indicated that he found being HIV-positive to be a hazard and potentially harmful to the company’s business. Then, on two different occasions, he reportedly ordered her to produce documentation showing that she was not HIV-positive and, if she would not produce such documents, she would be fired. The employee allegedly did not provide any documentation and Diallo’s allegedly fired her.

Based on EEOC’s allegations regarding Diallo’s conduct towards this employee, EEOC charges that Diallo’s violated the ADA in two ways. First, the nightclub made a disability-related inquiry that was not related to the employee’s job requirements or business necessity, which is the requirement for a permissible inquiry. Second, the company terminated the employee on the basis of her disability because she failed to produce the documentation that the company had impermissibly requested.

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bodyworn-794101_960_720The Fairfax County Police Department will be performing “re-engineering” training of its entire force to ensure that officers understand and comply with a new use-of-force policy, according to NBC Washington. Fairfax County’s use-of-force policies have come under scrutiny recently after the county police shot and killed an unarmed man named John Geer in 2013, which resulted in a murder indictment for the officer who shot Mr. Geer. Chief Ed Roessler, who assumed office a month before Geer was killed in 2013, has been pushing for revision of these policies since assuming his duties. The Chief has also committed to helping change U.S. police culture which resulted in 990 fatal police shootings in the last year and has embraced the “sanctity of life” concepts introduced by the Police Executive Research Forum, a D.C. think tank. Chief Roessler said, “It’s going to take one chief, one sheriff, one department at a time to change that culture.”

The trainings are multi-faceted and include a variety of forms and venues of training. One training includes a full-sized video screen that provided a virtual reality environment in which officers approach an incident and must attempt to diffuse it while in possession of their full arsenal of nonlethal weapons, including a taser, and their pistols. Police officers are tasked with diffusing situations such as a belligerent man with a chainsaw and a particularly violent bar fight. Another training is a live simulation furnished like a two-bedroom apartment featuring a possibly suicidal man with a large knife. As the Washington Post recounted:

“We’re focusing on de-escalation,” said Officer Peter Davila, “the sanctity of life for everybody. We’re talking to them as human beings, not as a subject or a suspect.” As the trainer in the scenario, Davila said, “Sometimes there is too much individuality (among officers). What we’re saying is this is Fairfax County’s policy. Whatever bias you may have, every Fairfax County police officer is going to go through this.”

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mobile-phone-426559_640The Hawaii state legislature is considering a bill that would make it more difficult for employers to access the social media profiles of their employees and prospective employees. HB 1739 recently made it through the Hawaii House and was recently heard before the state Senate’s Judiciary Committee, which recommended the bill be passed with amendments.

The bill itself, introduced by a Democrat and eighteen co-sponsors, prohibits employers from practices that have become common in many workplaces today, including forcing employees to provide social media login credentials to access employees’ accounts; accessing the account in the presence of the employer; and adding the employer to a list of contacts associated with a personal account. The bill does contain some exceptions, including those for law enforcement and for investigation of the unauthorized transfer of proprietary business information.

Should this bill pass, Hawaii will join several other states with similar laws, including Virginia. Virginia HB 2081, now codified as Va. Code § 40.1-28.7:5 Social media accounts of current and prospective employees, states:

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flag-36423_640After last week’s passage and signature of North Carolina’s House Bill 2, which discriminates against transgender individuals, North Carolina and other states who have adopted or are considering similarly discriminatory laws have come under intense scrutiny and pressure from businesses opposed to laws that discriminate against members of the LGBT community.

On March 28, 2016, Georgia Governor Nathan Deal announced he will veto a “religious liberties” bill, House Bill 757, which would allow church officials and faith-based groups to deny services to LGBT people based on a “sincerely held religious belief.” This proposed bill would essentially legalize discrimination against members of the LGBT community in the name of religious liberty. Such laws have been passed around the country and have received heightened attention since the Supreme Court in Obergefell v. Hodges held that gay marriage is legal under the U.S. Constitution last summer. Small businesses at various locations around the country have claimed that Obergefell has caused or created a violation of their religious beliefs. One Kentucky County Clerk went so far as to refuse to sign off on same-sex marriages due to her religious beliefs, for which she was briefly held in contempt and made a face of the conservative fight against marriage equality.

Georgia, a popular destination for shooting television shows and films due to favorable tax laws, has been the target of heated backlash and threatened boycotts because of House Bill 757. Disney (including its Marvel subsidiary), Apple, Dell, Time Warner, AMC Networks (which films The Walking Dead in Georgia) and other companies all strongly urged Governor Deal to veto the measure. The Governor, in a press conference Monday, acceded to the encouragement of these businesses and many individuals to veto the bill.

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The clock is always ticking if you're an hourly employee

The clock is always ticking if you’re an hourly employee

One of the most frequent stumbling blocks for clients is tardiness. Whether it’s coming to work on time or coming back from breaks in a timely fashion, we cannot stress this enough: you must be on time for work. Even if your boss says he doesn’t care. Even if you stay late to make up the time. Even if you work through lunch to make up the difference. You have got to be at work on time. If the schedule says 9 am, you need to clock in at 9 am.

Obviously, some of this varies from job to job. A lot of professional positions do not have a set schedule. Many accountants, lawyers, and executives are not expected to be at work at any given time. The same is true for many people who telecommute. For those individuals who have a traditional, scheduled time of arrival, however, being on time to work is critical.

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WFNjBOx4On December 22, 2014 a federal judge struck down a new provision of the Fair Labor Standards Act (“FLSA”) that would have entitled most home-care workers to minimum wage and overtime just ten days before that provision was to take effect, according to Bloomberg BNA. As it stands, the FLSA exempts “any employee” who provides “companionship services” form the minimum wage and overtime provisions of the FLSA and also exempts “live-in” domestic service providers from the overtime provision of the FLSA. The new rule, proposed in December 2011, provoked over 26,000 public comments from industry and labor groups and others.

D.C. District Court Judge Richard L. Leon struck down provisions of the Department of Labor’s (“DOL”) new regulation that would have removed the minimum wage and overtime exemptions for home-care workers who are employed by third-party businesses, which, but for Judge Leon’s order, otherwise have made those individuals eligible for minimum wage and overtime. The Home Care Association of America and two other organizations brought suit against the DOL, claiming that the DOL violated administrative procedure in issuing this new regulation; Judge Leon agreed.

Although the D.C. District Court invalidate those provisions of the DOL’s new regulation, others remained intact. One provision that was not struck down narrows the types of duties for which home-care workers are exempt from minimum wage and overtime for “companionship services.” These services now include “only social, physical and mental ‘fellowship’ activities and ‘protection’ services, such as being present when a client is inside the home to monitor the person’s safety,” according to Bloomberg BNA. In short, this means that the number of activities for which a home-care worker will not receive minimum wage and overtime is smaller, thus making it easier for these workers to obtain these wage protections.

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408307_237083763083686_1240030741_nThis month’s most popular and interesting articles covered some very important topics ranging from employment law and worker’s rights to the state of the ‘American Worker.’ More expansively, we also explored the stagnancy of international wages, and urge you to take a look at a short video that illustrates the most up to date statistics on the matter courtesy of the International Labour Organization. Check back to our blog soon for more of the top articles and information in employment law.

The Devalued American Worker

From the Washington Post:

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file211246764163Lauren Greene, former New Media Director and later Communications Director for Blake Farenthold, a congressman from Texas and the owner of the domain name “www.blow-me.org” filed suit against her former boss in D.C. federal district court on Friday, December 12.

The complaint alleges that Congressman Farenthold created an “uncomfortable work environment,” according to the Washington Post, when he told another office worker that he had “sexual fantasies” and “wet dreams” about Ms. Greene. The complaint further alleges that the Congressman, on more than one occasion, made comments to Ms. Greene about her appearance and then said “he hoped his comment wouldn’t be taken for sexual harassment.” He told another office worker that Ms. Greene “could show her nipples whenever she wanted to” during a discussion of Ms. Greene’s attire.

The complaint goes on to allege that Acting Chief-of-Staff Bob Haueter treated Ms. Greene in a way that “was intended to, and did, belittle and humiliate Plaintiff” based on her gender. When Ms. Greene told Congressman Farenthold about her concerns, the Congressman said that Mr. Haueter “was known to be condescending toward women on the staff, then paid empty, lip service encouragement for [Ms. Greene] to stand up for herself.”

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