This week, the Senate Committee on Aging held a hearing to examine this issue that older workers are facing in America. Although older workers are less likely to lose their employment than younger workers, they are reportedly quite likely to struggle to emerge from unemployment if they do lose their jobs.
]]> Although it has been widely recognized that older Americans often have a difficult time gaining employment due to their age, some people think the government should not get involved with this issue. However, under federal law it is illegal for employers to operate under discriminatory hiring practices that would negatively impact older applicants. Under the Age Discrimination Employment Act of 1967, a person cannot be denied a job because of his or her age or perceived age.Many workers and workers' rights advocates do say that it is hard to prove age discrimination. This, however, does not mean that those who believe they have been discriminated against should not seek legal recourse. As the government attempts to understand and curb this problem, it is important that workers and job seekers are aware of their rights and seek legal counsel when they feel their rights may have been violated.
Source: Huffington Post, "Age Discrimination's Impact Disputed In Congressional Hearing On Unemployment," Arthur Delaney, May 15, 2012
]]>The company has now been ordered to pay $4.8 million to employees as well as almost a $500,000 civil penalty. Under a settlement with the Department of Labor, Wal-Mart agreed to pay employees back wages in addition to damages. Affected employees will be paid through a third-party, according to a news report.
]]> Thousands of Wal-Mart employees were denied proper overtime pay and will be paid back as a part of this settlement.The wage and hour division's deputy administrator has said that she hopes this highly-publicized and large scale settlement is a warning to other U.S. employers. In Wal-Mart's case, the business was inaccurately classifying their employees as exempt in order to avoid paying overtime.
It is very important that employers properly classify their employees. Because of a complicated intersection of state and federal employment laws, it can be quite difficult for employers to do this and for employees to know whether they are being lawfully compensated for their work. Both employees and employers are wise to contact an employment law attorney about these matters to ensure they are following wage and hour laws.
As is demonstrated by the Wal-Mart case, the civil penalties for breaking these laws can be quite steep. And, of course the effect on the employees who are not promptly paid for overtime work can be damaging as well.
Source: Business Insurance, "Wal-Mart to pay $4.8M in back wages for violations of Fair Labor Standards Act," Judy Greenwald, May 2, 2012
]]>The teacher's union requested a new school district task force commissioned to help teachers and principals develop training programs that would help change the dictator-like culture that permeates the county schools. Their hope is that district administrators will learn better ways of leading without domination, fear, intimidation and bullying.
]]> According to the union representative, teachers are often ordered to sacrifice planning time to cover additional classes, activities or duties beyond their job description and are assigned tasks with impossible deadlines. The revamped education laws, teacher evaluation system and financial risks prevent teachers from speaking up. If they do say something to their principal they are often told to shape up or ship out.Much like the new strong anti-bullying policies established to protect students, adult bulling often looks very similar and includes teasing, physical violence, and sexual, religious or racial harassment. When teachers feel intimidated, demoralized or unmotivated the students suffer as a result.
The Palm Beach County teacher's union contract includes clauses that address discrimination and harassment, but not employee intimidation.
The school board superintendent promised to look into all complaints and sought constructive suggestions from the board members. The school district spokesperson said wherever they find evidence of inappropriate behavior, corrective and disciplinary action will be taken.
Source: sun-sentinel.com, "Palm Beach County teachers charge principals with rampant intimidation," Marc Freeman, April 19, 2012
]]>While some employers are probably happy to earn an extra $200 for going on a walk over the lunch hour, others are wondering whether this amounts to some type of discrimination or invasion of privacy. This is quite a complicated employment law issue.
]]> Local benefits professionals say that companies in Florida are monitoring health and promoting healthier lifestyles in an effort to lower health insurance costs. Employees earn money and prizes for engaging in healthy activities--like walking, getting an annual checkup or taking a blood test--while those who do not participate are penalized.In some workplaces, employees are being asked to partake in questionnaires and blood tests which reveal their personal health information to insurers, and sometimes to employers. This may raise privacy concerns.
In fact, in 2009 a Broward County employee filed a lawsuit after the county charged employees who refused to take a blood test for cholesterol and diabetes. The case will be argued in Miami next week, and it may have a major impact in workplaces across the nation. The case tests whether employers have the right to demand employees get medical screenings.
The case could also have major employment law repercussions here in Florida. According to a recent study, up to 43 percent of employers in Florida offer health insurance discounts for those who engage in certain healthy behaviors, and 40 percent award cash or gifts to employees who take part. Around 12 percent of employers charge smokers more for health insurance.
Source: Sun Sentinel, "Employees rewarded, penalized to improve health," Bob LaMendola, April 23, 2012
]]>The federal Fair Labor Standards Act, as well as Florida state statutes, protect the wage and overtime rights of workers in Florida. And in general the Fair Labor Standards Act requires that companies pay hourly workers overtime, but there are many exemptions for various white-collar workers, including "outside salesmen."
]]> The Labor Department did agree with the former employees of the pharmaceutical company in 2009, saying that the outside salesman exemption only applies in cases where the overtime hours consummate in a sales transaction.The company however has defended itself by saying that its sales representatives are compensated with a base salary in addition to performance-based commission pay. Overtime requirements, the company has argued, are not a part of this compensation package.
The Supreme Court is expected to hand down a ruling by the end of June. The implications of a ruling in favor of the employees would be very significant as pharmaceutical companies have billions of dollars in potential liability. The case may also have an effect on outside salespeople working in other industries here in south Florida.
Source: Reuters, "Supreme Court hears Glaxo overtime pay case," April 16, 2012
]]>The federal Computer Fraud Abuse Act has previously been used by employers to attempt to classify these actions as felonies under the law, but this week a federal appeals court said that it is simply not against the law for workers to use a work computer for personal use. The decision stemmed from a lawsuit filed against an employee alleging trade secret theft, mail fraud and other violations of the CFAA in relation to violating his company's computer policies.
]]> The CFAA is meant to be an anti-hacking law, and an appeals court agreed with a lower court that the computer fraud charges in this case needed to be dropped. While this ruling does mean that it is not a federal crime to read the newspaper online at work, or Facebook chat with friends, these actions can still be risky as you may be disciplined or even fired for them--depending on your employment contract and your employer's policies.The judge in this case said that by narrowing the federal law's scope, the court is ensuring that employees will not be prosecuted for procrastinating at work.
As we have discussed previously in this blog, Florida's employment laws face many new challenges in the digital age and the law in many of these areas remain somewhat undefined. This was recently exampled with social media access issues. Those who face employment law issues like these often benefit from talking with an employment law professional.
Source: Forbes "Good News: Goofing Off On Your Work Computer Is No Longer A Federal Crime," Kashmir Hill, April 11, 2012
]]>OSHA alleges that the privately-run charter school terminated a worker's employment after he voiced concerns about safety hazards in the school's two theaters. According to news reports, the employee addressed the hazards in a letter to his boss, noting that improperly placed extension cords and a lack of sprinkler systems were dangerous.
]]> The supervisor did not respond to the employee's letter, and about one month later the employee filed a complaint with OSHA to report the safety concerns. After OSHA contacted the school and a dispute ensued, the employee was told his position was being terminated. Days later, OSHA completed a safety inspection and the school was cited for multiple safety violations, including those in the employee's complaint.The Labor Department's suit requests a reinstatement of the former employee; full benefits for the employee; back pay of wages; punitive and compensatory damages; and removal of any references of the issue from the employee's file. OSHA also seeks a permanent injunction against the school in order to prevent any future violations of whistleblower protections.
Those in Florida who feel they have been wrongfully terminated or retaliated against due to whistleblower issues have the right to seek legal recourse.
Source: WTSP.com, "OSHA sues Manatee School for the Arts for violating whistleblower protection provisions," Noah Pransky, March 12, 2012
]]>Workplace age discrimination is illegal under the Age Discrimination in Employment Act of 1967. Just this week, the Equal Employment Opportunity Commission issued a rule to clarify the scope of this law for employers, employees and the courts.
]]> The new rule is set to be published in the Federal Register today, and it specifies that the ADEA prohibits any practices or policies that have an effect of harming older people more than younger people--unless the practice or policy is supported by a reasonable factor that is not age.The EEOC said in a statement: "The final rule strikes the appropriate balance between protecting older workers from unreasonable business decisions and preserving and employer's ability to make reasonable business decisions."
The rule aligns the ADEA with Supreme Court rulings, including a 2008 decision that stated employers have to prove there existed a reason other than age when layoffs seemed to target older employees.
While this new rule should help to clarify the ADEA for both employers and employees, the ADEA like many Florida state and federal employment laws statutes is quite complicated. It is often wise for employers and employees to work with employment law attorneys to ensure that employment law statutes are being interpreted accurately before taking any action on the basis of these laws.
Source: Business Insurance, "EEOC issues Age Discrimination in Employment Act rule," Judy Greenwald, March 29, 2012
]]>Some companies are actually asking for the private login information of employees and job candidates. This has certainly raised many red flags as far as federal and state privacy law and employment law, spurring legislation in several other states to ban the practice.
]]> Many outspoken critics of this practice have said that having an employer access your Facebook or other social media accounts--by actually logging in as you--is no less invasive than if they were to go through your mailbox or ask for your house keys to peer around at your personal belongings.The Department of Justice has said that it is a federal crime to enter Facebook or a similar website in violation of its terms of service; however it may not be a violation if a job applicant or employee voluntarily gives up their password. Nonetheless, privacy advocates say that people--especially job applicants who are very much in need of employment--are unfairly coerced into handing over the private information.
For now, in Florida this remains very much a gray area while states including Illinois and Maryland could very well outlaw this type of employment screening. It is often wise to take precautions when publishing any personal information onto social media websites and to utilize privacy controls. Much of the information published on these sites is actually in the public domain and it is prudent to be highly intentional with your online image.
Because the laws governing social media's role in employment are very complicated, those experiencing a social media-related employment issue are wise to seek legal guidance.
Source: The Associated Press, "Employers ask job applicants for their Facebook passwords," Manuel Valdes, March 21, 2012
]]>Unpaid internships are legal in South Florida, but they must conform to the U.S. Department of Labor's unpaid internship guidelines. These guidelines were updated in 2010 and include the following:
]]> • Interns must be given tasks that are beneficial for them.• Interns must not be asked to run personal errands for the employer.
• Interns must be closely supervised by a staff member.
• Interns must receive training similar to that which would be given in an educational setting.
• The intern cannot displace staff employees.
• The employer cannot directly benefit from the intern's work.
• Both the intern and the employer must be made aware that the internship may not result in an employment offer.
• The internship should be for a fixed time period, established at the beginning of the internship.
• All parties understand the terms and job tasks on the internship.
• The terms of the internship must be in writing.
Broward County employers who have an unpaid internship program are wise to work with an employment law attorney to make sure their programs do not violate any federal laws. And, unpaid interns who feel their employment rights have been violated in the course of the internship have the right to seek legal recourse as well.
Source: Reuters, "Might Be Time to Rethink Unpaid Internships," Andrew Chow, JD, March 14, 2012
]]>In 2010, Miami-Dade County became the first county in the U.S. to adopt its own wage theft law. Under The Wage Theft Ordinance, workers in Miami-Dade have recovered almost $400,000 in backpay from their employers. Now, the Florida legislature is working on a bill that would effectively scrap this local county law. The bill would stop local governments from enacting wage-theft ordinances.
]]> Wage theft is a term used to describe a situation in which an employer is intentionally and wrongfully withholding pay. This can be by requiring the worker to work off the clock or failing to compensate the worker for overtime.Employee advocates have argued that county wage theft ordinances are necessary because the Florida courts simply cannot handle all of the wage theft claims, most of which are for amounts of less than a few hundred dollars.
Under the county ordinance in Miami-Dade, workers can fill out a form if they were shorted at least $60 and they are then entitled to a hearing.
Employer advocates in the business community have countered that wage claims should be handled in a court under a judge, rather than in a county hearing with a hearing officer.
Worker advocates have taken to picketing in front of shopping centers in some parts of the state to show their concern that the Florida Retail Federation is backing the state legislation to kill the county wage-theft ordinances.
Regardless of what happens with this legislation, workers who are not being fairly compensated under federal and state employment law do have the right to seek legal recourse.
Source: Huffington Post, "Florida Wage-Theft Laws Could Be Blocked By GOP Bill," Dave Jamieson, March 6, 2012
]]>The majority of filings were charges of retaliation, race and sex discrimination. According to the director of the Miami Division of the EEOC, which encompasses nearly all of Florida excluding the panhandle, claims of discrimination have been on the rise since 2004. The increase is reportedly due to more people being aware of their rights under the law.
]]> The report also stated that 40 percent of the charges were related to retaliation after employees complained of discriminatory practices or policies in the workplace. And, there was about a 23 percent increase in age discrimination in 2011, up from about 22 percent in 2010, with age and sex discrimination combining to make up 30 percent of all charges last year.Retaliation claims can include charges of receiving adverse treatment such as a reduction in pay, demotion or termination for any number of activities, including reporting safety violations to government agencies and refusing the sexual advances of a supervisor.
Complaints of sexual harassment can also be a very sensitive topic affecting both the employee's reputation as well as that of his or her employer, especially if it is a high profile case and thus subject to the court of public opinion. Sexual harassment can include anything from a request for sexual favors in exchange for special consideration for a promotion, increase in pay or continued employment to a hostile work environment that includes risqué jokes or innuendo.
South Florida's levels and types of reported discrimination claims are in line with the nation's average overall. As we previously discussed in our Broward County Employment Law Blog, with charges of employment discrimination reaching close to 100,000 nationally in 2011, these are the highest numbers in the EEOC's 46-year history.
Source: South Florida Sun-Sentinel, "South Florida job discrimination charges set record," Marcia Heroux Pounds, Feb. 25, 2012
]]>AT&T had attempted to purchase T-Mobile for $38 billion. The deal was risky because all sides were aware that it may not pass regulatory examination. In order to entice T-Mobile to enter into the agreement with AT&T, the CEO of AT&T offered T-Mobile $3 billion if the deal failed.
]]> The Federal Trade Communications Commission and the Department of Justice, in fact, blocked the deal. T-Mobile collected on the huge breakup fees it was owed under the terms of the acquisition agreement.AT&T's board believed that this costly gamble was a direct result of the poor judgment of its CEO. The compensation committee decided to cut his pay package by more than $2 million. Despite this pay cut, his total employee pay amounted to $22 million in compensation. Though this is a very large number, it is 20 percent less than what he earned in 2010.
The CEO's 2011 compensation was based on the company's strong performance, despite the debacle over the failed T-Mobile deal. Bonuses and performance incentives can be addressed in in employment contracts, along with the failure to meet certain goals or expectations, and this is most likely the case with the CEO of AT&T.
Could the CEO see his massive pay cut coming after the T-Mobile deal fell through? Possibly.
If not, then he may consider a dispute regarding the compensation he received under his employment contract.
Source: CNNMoney, "AT&T CEO pay docked $2 million for T-Mobile debacle," Stacy Cowley, Feb. 22, 2012
]]>Hostess Brands, which has several bakeries in Florida, is remaining open for business while it is undergoing proceedings for Chapter 11 bankruptcy protection. Apparently, the company is also proposing new contracts for its workers, and the Teamsters Union, which represents just less than 40 percent of the company's 19,000 employees, has said that it will strike if the company imposes the contract. The Teamsters say the contract is unfair and includes wage cuts.
]]> Hostess--maker of Twinkies, Ho Hos and Wonderbread--has about 36 bakeries. Teamster members have reportedly said they will take steps to salvage the company, but that the contract goes too far. A hearing will be held regarding the contract next month.According to a news report, workers have made sacrifices two other times on the company's behalf, but the company did not improve after these.
The director of the Teamsters Bakery and Laundry Conference said in a statement published on ABC.com: "While we remain committed to finding a solution to save the company, it won't be done solely on the backs of our members and Hostess employees."
While these employees have the backing of a union to aid them in contract negotiations, many other employees in Florida do not have this support when entering into an employment contract. Often, individual employees and employers choose to work with employment law attorneys to negotiate contract and non-compete agreements. Employees especially are often wise to have a legal professional review any employment contracts before they sign them.
Source: ABC, "No More Twinkies? Hostess Workers Threaten Strike," Susanna Kim, Feb. 14, 2012
]]>However, there are some employees who are exempt from overtime pay. Generally, these are highly skilled workers, such as doctors and lawyers. However, sometimes employers misclassify their employees as exempt, and now the computer industry is backing legislation that would to revise U.S. labor laws to limit overtime rights for more professionals.
]]> In 1990, certain high-tech computer professionals were added to the list of workers excluded from overtime protection. Computer workers who perform duties such as systems analysis and programming, earning at least $455 per week or $27.63 per hour, are currently not entitled to overtime pay.A bill that was introduced last fall would exempt more computer professionals from being paid time-and-a-half for overtime hours. These would be those who do work such as securing, configuring, integrating and debugging computer systems.
It is not yet clear how many American workers that change would effect, but more than 3 million people do work in computer-related jobs in the U.S.
The companies that support the reforms have argued that they are necessary to keep jobs in the U.S. This is because employers can hire workers to do the work overseas for a fraction of the price.
However, opponents argue that they have a right to be paid for overtime.
The bill is likely to be discussed by the Senate Committee on Health, Education, Labor, and Pensions before any action is taken.
Source: McClatchy Newspapers, "Overtime bill pits needs of high-tech employers vs. workers," Franco Ordonez, Feb. 7, 2012
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