Articles Posted in Employment Law

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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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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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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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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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The recent weeks have been busy ones in the world of employment law. In this post, we highlight some of the most interesting cases that have surfaced over the past weeks. We check in on how the Affordable Care Act has impacted small business and firms as well as a case being brought against Jimmy John’s (yes, the sandwich company) for attempting to bind it’s low-wage workers to a non-compete contract.

Small Firms Start to Drop Health Plans: Many View the Health Law’s Marketplace as Inviting and Affordable

Small companies are starting to turn away from offering health plans as they seek to reduce costs and increasingly view the health law’s marketplaces as an inviting and affordable option for workers.

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We get a lot of phone calls and emails. On most days, we hear form eight to twelve potential clients asking about discrimination, harassment, non-compete clauses, severance agreements, failure to pay overtime, and other employment issues.  Those calls range from local issues in Arlington, Fairfax, Alexandria, and other areas in northern Virginia and the District, to calls from individuals whose employers are defense contractors often based in Reston or Herndon, but the individuals themselves are personally located in Iraq, Afghanistan, or another foreign nation.

Every call is unique, but there are some things that will help you hire an attorney regardless of your reason for calling. Here’s a list of the first five steps:

1. Talk About Money – Seriously, folks.  Don’t be afraid to talk about money.  You are calling to hire a firm such as ours to do a service.  We, in turn, have a business to run.  Our decisions are not exclusively about money, but we cannot enter into any agreement without discussing it.  There’s no point in trying to avoid it.

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file5961270333740According to the Chicago Tribune, shoe retailer DSW, Inc. has agreed to settle an age discrimination suit brought by the Chicago District Office of the United States Equal Employment Opportunity Commission (EEOC) on behalf of seven managers and approximately 100 other employees, all of whom claimed to have been terminated in 2008-2009 in violation of the Age Discrimination in Employment Act (ADEA). DSW, based in Columbus, Ohio, has approximately 10,000 employees nationwide and over a dozen locations in the greater Washington, D.C. metropolitan area alone.

According to the EEOC, DSW conducted a “reduction in force” that resulted in the termination of employees and managers over 40. Furthermore, according to the EEOC, not only did DSW terminate employees based on their age, but it also retaliated against employees who refused to follow the force-reduction directive. The lawsuit, filed on September 15, settled for $900,000, to be given to the former employees, and the requirements that DSW report any employee complaints of age discrimination in the next three years to the EEOC and revise its anti-discrimination policy.

As is to be expected in this sort of situation, DSW denies it discriminated against these workers based on age and claims it decided to settle in order to mitigate the costs associated with litigating a class-action lawsuit such as this.

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