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Archive for labor law

FedEx Deals with Employment Law Case

A California woman was terminated from FedEx for entering her time card incorrectly.  Although her employer most likely has not violated California Labor Laws, the woman claims that she was wrongfully terminated.  If you have experienced time card manipulation issues contact your Los Angeles employment law attorney for a confidential consultation.

According to online legal news source, Lawyers and Settlements, California’s Labor Code states that an employment relationship with no specified duration is presumed to be employment “at-will.” In theory, this means that the employer or employee may terminate the employment relationship at any time, with or without cause. But it isn’t black and white. The at-will rule created by statute, the courts or public policy has exceptions. An employer can terminate a worker at will and, as long as it isn’t for the “wrong” reason, they won’t violate the California labor code.

The woman claims that she was fired for “stealing” from the company for entering the wrong information on her time card.  The woman, who began with FedEx in 2006 as a lead project coordinator, claimed that her job was going well until eight months into the job, a dispute took place between with her assistant manager over leaving work to pick up her daughter from school.

Ever since then, her work environment turned hostile.  She was able to transfer locations, however her home life took a turn for the worse, filing for divorce after 20 years of marriage.  She became clinically depressed and was prescribed anti-depressant pills with caused her to become forgetful, her main claim for forgetting to clock out and miscalculate her hours.  Even with a doctor’s note, FedEx still does not buy the claim and till today the woman has yet to return to work.

Employment Law: Difference Between Independent Contractor and Employee

An independent contractor is a person or business that provides good or services to another entity under the terms of a contract of agreement.  An independent contractor, also known as a freelancer, does not work regularly for an employer, but as needed.  If you have been misclassified as an independent contractor, contact your Los Angeles employment lawyer for a confidential consultation.

The benefits of working with an independent contractor, generally means the employer saves money via lower taxes, no benefits, workers compensation and lower taxes.  However, if legal issues were to arise serious claims may result from unpaid taxes, wages civil fines, attorney fees and the possibility of criminal charges.

The United States Supreme Court explains that there are no clearly defined rules that determining employees and independent contractors. Rather, overall relationship plays a key role in determining.

  • The skill required
  • The source of the instrumentalities and tools
  • The location of the work
  • The extent of the hired party’s discretion over when and how long to work
  • The method of payment
  • The hired party’s role in hiring and paying assistants
  • Whether the hiring party is in business
  • The provision of employee benefits
  • The tax treatment of the hired party

Who Would Have Thought? The 10 Weirdest Laws

We figured we would spice it up this week  and switch gears from employment law and talk about the weirdest laws you have probably never heard of, but in fact are illegal! Crazy laws are in fact true around the country and the world.  Who ever thought that up until recently, it was illegal to throw a Frisbee at the beach in Los Angeles County without a lifeguard’s permission? Annoying, weird, we know.  We figured we’d find a few more wacky laws to inform you about via AOL travel.

1. In Alabama, it is unlawful to wear a false mustache in church and cause “unseemly laughter.” The state also keeps a law against driving while blindfolded on the books, just in case you are in a hurry to get to church and do not want to be sidelined by even the possibility of seeing someone with a false mustache and risk breaking into a gale of chortles.

2. In Phoenix, Arizona, the law states that every man who enters the city limits must wear pants. Maybe this was aimed at Scottish bagpipe players, but the law has ensured the city stays clean of men in skirts from wherever they hail.

3. In Hawaii, coins may not to be placed in one’s ears. You can wear them in your nose, on your toes and under your arms but the ears are definitely out. Magicians take note.

4. In Montana, it is illegal for married women to go fishing alone on Sundays. And it is illegal for unmarried women to fish alone at all. This law is so critical to the upholding of ethical behavior in the state that the Billings Convention and Visitors Bureau featured the tidbit of information on its website.

5. In Vermont, women must obtain written permission from their husbands to wear false teeth. But a note from hubby should make it all ok again no matter where the spectacle occurs.

Age Discrimination in Employment Act Violations

In tough economic times, finding employment is tough, unfortunately even harder for older employees.  Some employers often assume that older employees are close to retirement and don’t need a job, have too many medical issues resulting in missing work.  However this is all too false, especially in this day and age.  If you believe that you are being discriminated against at work because of your age, you should be aware that laws exist to protect you from unlawful age discrimination contact your Los Angeles employment lawyer today.

The Age Discrimination in Employment Act of 1967 (ADEA) is a Federal law that protects certain employees who are over 40 years of age from employment discrimination. The ADEA applies to most employers with 20 or more employees.  Age discrimination is illegal for most companies.  If you notice any of these signs, you may be a victim of age discrimination.

  • Biased comments from other co-workers, supervisors
  • Pay attention to how younger employees are treated, are they treated better?
  • Unequal discipline
  • Less qualified, younger employee receiving promotions
  • Older employees excluded from work functions, meetings, leads, etc.
  • Company hiring only younger employees

It is against the law to discriminate for your age.  Do not let the above explained affect your work environment. Get advice today

Employment Law: Pregnancy Discrimination Accommodations

Last month, a California Court of Appeal voted yes on Sanchez v. Swissport, Inc. a case where a California woman was terminated for being unable to return to her job after a 19 week pregnancy disability leave.  The case is a “wake-up” call of sorts for employers to understand that simply complying with California pregnancy disability laws is not necessarily enough.   It is unlawful in California for employers to discriminate in hiring, providing for leave, benefits or other conditions of employment due to pregnancy.  Contact your Los Angeles employment lawyer, if you believe you are a victim of pregnancy discrimination.

According to CalLaborLaw.com, the court held that an employer’s providing of the 16 weeks of leave for pregnancy disability does not automatically shield the employer from claims for failure to accommodate a disability or for gender/pregnancy discrimination under FEHA. The court reasoned that an extended leave of absence (beyond 16 weeks of pregnancy disability leave) may be a “reasonable accommodation” for a disability required under FEHA, and that Swissport may have been required to provide the additional leave time absent a showing of undue hardship.  The case was, therefore, remanded to the trial court level so that the employee’s FEHA claims could be litigated.

It is important for employers to understand the employee’s needs for any additional time needed after the expiration of their leave, rather than face the possibility of facing claims due to disability discrimination.  Pregnancy discrimination is a form of sex discrimination and should not be treated less favorably.

Religious Discrimination: Know Your Rights

In the last few years, religious discrimination in the workplace has been on the rise. Laws on religious discrimination are quite confusing and contradictory.  For example, you can’t make employment decisions based on a person’s religion. On the other, you might have to take an employee’s religion into account when making certain workplace decisions. If you feel that you have been subjected to religious discrimination or harassment at work, contact your Los Angeles employment lawyer to explore your legal options.

Religious discrimination can take place in many ways.  A few examples include:

  1.  Treating an employee different than others due to their religion
  2.  Questioning their faith/religion during an interview process
  3. Letting an employee go due to their religion
  4. Not allowing an employee to wear religious clothing/items
  5. Denying a pay raise/promotion due to their religion

An employer must accommodate an employee’s religious beliefs in order to prevent an employee from facing hardship in the workplace.  Employers must understand that many religions observe Saturdays or Sundays and therefore must be willing to accept these conditions.  Refusing an employee to implement such practices is against the law.

Employment Rights Against Retaliation: Whistleblowing

In November 2012, President Barack Obama signed new whistleblower protections into law.  Also known as the Whistleblower Protection Enhancement Act, consists of protections for federal employees who are terminated for speaking out against illegal behaviors or actions on behalf of employees or their employer.

The Act, which was first passed in 1989, adds onto existing protections to those who disclose evidence of fraud, abuse, or waste they have encountered in the course of their employment. The new law provides greater insight to those seeking such relief.

According to the Wall Street Journal, informants in the private sector who expose violations of securities law can receive between 10% and 30% of a penalty if it’s more than $1 million under a program created by the Dodd-Frank Act. The program received more than 3,000 tips in the past year.

It is unlawful for an employer to retaliate against an employee in any way regarding complaints made to proper labor organization agencies for any legal claims which are filed by the employee as a result of workplace actions or conditions, if you feel like you have experienced retaliation contact your Los Angeles employment lawyer.

Employment Law: When California Employers Must Pay for Travel

Are you an hourly worker? Did you know that California law requires that hourly workers be paid for hours worked, which may include pay for travel. Pay for travel consists of time where an employee is not necessarily required to perform work but is still under an employer’s control. It is important to note that commuting to and from work is generally not time that an employer must compensate. Have you ever found yourself working off the clock? Contact your Los Angeles Employment Lawyer for a confidential consultation.

For example, time spent as a passenger in a transportation related entity is considered to be under employer’s control if required by the employer.  Examples of such include, attending an event or meeting. On top of that, there are instances where travel related cases such as waiting in traffic, purchasing a ticket, or getting on board, count as under employer’s control.  However there are cases where travel doesn’t count under employer’s control.  These instances include; meals, relaxation breaks and personal business.

In addition, California law permits employers to pay different rates for travel time. Although the rate must not be less than minimum wage, it can be under what their normal pay rate is. It is important to note that, in order to qualify for a reduced travel time payment, the employer must have notify you of a different pay rate for travel time before you travel.

If you believe that your employer has committed violations of the wage and hour laws, you don’t have to file an EEOC claim as you would in a typical discrimination case. Instead, you can hire a private attorney and file suit as soon as you discover the violation. If other people at your company have also been denied overtime, meals or breaks, you may be able to file a special type of FLSA class action lawsuit.

Are You Working in a Hostile Work Environment?

“Hostile work environment” is often misunderstood.  Many believe that such an environment is when one employee dislikes another, and intentionally makes their work life miserable to the point that they quit.  However this isn’t the case.

The concept of a hostile work environment falls under the ADA, ADEA, Title VII, and any state employment discrimination laws. Meaning that, unless the alleged at-work harassment is based on race, color, religion, sex, national original, age (40+), disability, or some state-protected characteristic, a hostile work environment most likely doesn’t legally exist.

A hostile work environment legally occurs when there is harsh and/or persistent conduct that a reasonable person would consider intimidating or abusive such that it impacts their way of working.

Conduct needs to be based on one of the aforementioned characteristics, or done for a retaliatory reason. Typical at-work harassment includes offensive jokes, slurs, touching, threats, ridicule and insults.

Simply being rude does not count as hostile work environment—actions need to be sufficiently offensive.

In addition it is important to know that even if an employee is not the direct victim of at-work harassment, even if he/she was affected by it, he/she has a right to sue an employer for creating such an environment.

If you believe you have a case against hostile work environment contact our Los Angeles employment law offices immediately to find out about your rights.

 

 

Via FindLaw

The Dangers of Social Media and Employee Discipline

I am sure you have heard of employees exploiting their work environment on social media for all to see.  Whether they intentionally did it or were in a moment of frustration, the consequences can be difficult, often resulting in termination.  See what happens when workplace harassment leaks onto social media.

The National Labor Relations Board, which has been re-energized under the Obama Administration, affirmed an Administrative Law Judge’s ruling that the nonprofit, Hispanics United of Buffalo, Inc. violated the National Labor Relations Act by terminating five employees for comments they made on Facebook in response to a coworker’s criticism of their job performance.

Two coworkers employed by HUB to assist victims of domestic violence regularly frequently communicated with each other using text messages outside of work.  One weekend day one of the coworkers received a text (“recipient” from the other coworker (“sender”) criticizing the recipient’s job performance and stating that the sender planned to report the recipient to the Executive Director of the organization.

The recipient then posted a note on her Facebook page stating: “[Sender], a coworker feels that we don’t help our clients enough…I about had it! My fellow coworkers how do u feel?”

Four off-duty employees responded to the note on Facebook objecting to the criticism of their work by the [sender]. The [sender] responded on Facebook and demanded that the [recipient] “stop with ur lies about me.”  The [sender] then complained about the Facebook comments to the executive director of the organization.

The executive director then fired the recipient and the four coworkers for “bullying and harassing” the [sender] on Facebook citing its “zero tolerance” for harassment policy. None of the employees were represented by a union.

The primary issue was whether the employees’ Facebook postings constituted concerted activity. The Board upheld the ALJ’s determination that the employees’ comments of protest with other employees was concerted activity because the communications related to an employment complaint against one employee, and the postings were an important step in defending themselves against the accusations which they had reason to believe the [sender] was going to make to management.

The Board rejected the organization’s claim that the employees were fired pursuant to the “zero tolerance policy” because “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”

The NLRB’s decision is a step closer to creating a “zone of protected activity” over every discussion or communication about employment even when it has nothing to do with a union or union activity.  Moreover, the NLRB has demonstrated that it will protect communications which are remotely connected to “organizing” or group activity.

With social media continuing its popularity, it is important for employers to tread carefully when any potential disciplinary action is based on communications among employees.  It is also important to remember to think twice about what you are posting on social media, especially regarding work.  The internet is an open book.

For more information on workplace discrimination and harassment contact Attorney Aryeh Leichter your Los Angeles Employment Law Attorney.

 

 

Via JD Supra Law News