Showing posts with label Employment law. Show all posts
Showing posts with label Employment law. Show all posts
Labor law blog: The Labor Law Center Blog
0 commentsI ran across this blog last week and think it is worth taking a look. Its origins are not clear to me but it is a group blog and labor law seems a bit of a misnomer. Most often labor law tends to mean only the law governing unions and an union relations with employers. This blog goes beyond that narrow definition to include employment law issues such as overtime pay and EEOC discrimination matters. On top of all that, the writers write clearly about the subjects. So take a look at The Labor Law Center Blog.
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Follow up on powers of attorney and home healthcare workers
0 commentsJust a few passing thoughts on the previous article Powers of Attorney - uses and problems and Times of London article I was commenting on Power of attorney: what can go wrong? emphasizing the employment law issues.
The original article made the following points about the employment law issues:
For those receiving in- home care - check the contract carefully about your responsibilities of mixing the care provider with the client's business affairs.
For those companies providing in-home care: 1) check on your employees' background and 2) get your contracts lined up. No, one cannot contract away one's negligence but that is not quite the need or purpose for lining up the contracts.
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The original article made the following points about the employment law issues:
The case has important implications for anyone arranging domiciliary care. Consideration should be given to making it a condition of employment that the employee does not discuss legal or financial matters with the person being cared for. If possible, this could be made a term of a written contract. If there is firm evidence that the term is being breached, the contract can be terminated.I do not know enough about home health care contracts to know if they do include these kind of terms. I do know that temporary agencies have contracts that address these issues with employers. I would not be surprised that in-home medical care providers do not have contracts with similar provisions.
For those receiving in- home care - check the contract carefully about your responsibilities of mixing the care provider with the client's business affairs.
For those companies providing in-home care: 1) check on your employees' background and 2) get your contracts lined up. No, one cannot contract away one's negligence but that is not quite the need or purpose for lining up the contracts.
The closing business and at-will employees
0 commentsWhat to do when you are an at-will employee and the business just closes its doors? First, I suggest making speeches about suing the company is not a good idea. Second, get yourself to the Workforce Development office for signing up to get unemployment benefits.
The Richmond Garfield's restaurant closed their doors this week. The employees had no notice of the restaurant's impending demise and so were certainly shocked to find themselves unemployed. So reports the Richmond Palladium-Item.
As some of the comments make clear, Indiana is an at-will employment state. That severely limits any wrongful discharge kind of suit.
On the other hand, that the employer blithely ignored any harm done to its emp0loyees seems pretty clear cut. Not that that lack of concern rises to grounds for a lawsuit. It does seem highly unlikely that Garfield's will want to re-enter the Richmond market, or that many from the Richmond market will frequent Garfield's restaurant's outside of Richmond, or that those reading the Palladium-Item articles outside of the Richmond area will be impressed with the Garfield's franchise system.
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The Richmond Garfield's restaurant closed their doors this week. The employees had no notice of the restaurant's impending demise and so were certainly shocked to find themselves unemployed. So reports the Richmond Palladium-Item.
As some of the comments make clear, Indiana is an at-will employment state. That severely limits any wrongful discharge kind of suit.
On the other hand, that the employer blithely ignored any harm done to its emp0loyees seems pretty clear cut. Not that that lack of concern rises to grounds for a lawsuit. It does seem highly unlikely that Garfield's will want to re-enter the Richmond market, or that many from the Richmond market will frequent Garfield's restaurant's outside of Richmond, or that those reading the Palladium-Item articles outside of the Richmond area will be impressed with the Garfield's franchise system.
OSHA - changes in federal regulations for construction employers
0 commentsFrom the Jackson Lewis legal updates newsletter came this link to their article Federal OSHA Review Commission Overturns Enforcement Policy for Multi-Employer Construction Job Sites.
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Read the entire article. I do not know how many readers might find themselves dealing with the federal OSHA, but I suppose this would be a good time to put in a good word for Indiana's OSHA (IOSHA). IOSHA has programs for helping businesses that would be worth checking into.By a 2 to 1 vote, the federal Occupational Health and Safety Review Commission has dramatically altered the ability of the Occupation Safety and Health Administration (“OSHA”) to cite general construction contractors for safety violations committed by its subcontractors. The Review Commission has uprooted OSHA enforcement policy that goes back 30 years. Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622 (decided April 26, 2007).***
Summit signals a major change of direction for OSHA’s inspections of jobsite construction that can affect employer responsibilities on jobsites. General contractors who feel less constrained to assure the safety of their subcontractors, may cause the latter to become more self-reliant. They may not be able to depend on the general contractor for close safety monitoring unless this is made an express part of the subcontract. As a result, subcontractors may need to redouble their efforts to supervise workers carefully.
Employment law: Kroll study on background checks
0 commentsI got notice about this report and read the summary. I certainly did not have time to read the full report. Here is the point of the summary:
I am chewing over just what this means. How does this apply to litigating a negligent employment claim? From only reading the summary, I am thinking plaintiffs and defendants both will be doing a lot of arguing about the reasonableness of the employer's reliance on background checks. Oh, yeah, I see the agency doing the background check being added to the lawsuit by the defendant.
So much information and so little knowledge.
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Criminal record “hits” increased more than ½ a point from 8.5% in 2005 to 9.1% in 2006. Further, applicants stretched the truth more often in 2006 than in 2005, as proven by increases in past employment verifications and education verifications.The following link leads to the Summary which has a link to the full report: Summary link.
I am chewing over just what this means. How does this apply to litigating a negligent employment claim? From only reading the summary, I am thinking plaintiffs and defendants both will be doing a lot of arguing about the reasonableness of the employer's reliance on background checks. Oh, yeah, I see the agency doing the background check being added to the lawsuit by the defendant.
So much information and so little knowledge.
Reading around: Employment and business law blogs
0 commentsA caution: these blogs interest me because they the qualities of good information being well-written and not because they have anything directly to say about Indiana law. I make this caution for the non-lawyers reading this blog who might not understand why a blog written by an attorney practicing in the State of Washington (such as Jill Pugh who runs two of the blogs below) does not mean much in Indiana. State law still controls a large swath of employment law and each state has its own local variations. Even with federal law, differences exist between the different federal circuit courts of appeal.
For example, Ms. Pugh's Employee Handbooks Blog does have several posts that are useful outside of Washington. The post FLSA Online Overtime Calculator has utility because the federal regulations apply nationally and the overtime calculator does not necessarily require a judge's interpretation. While the post When You Have to Fire An Employee - 10 Things to Keep In Mind has really good ideas, I must point out that Indiana law also says what cannot be withheld from an employee's paycheck. It is a lawyer thing, see? The point made by in the post still applies. Then there is,Handling Employee Personal Data, which deals with applying a specific Washington statute. However, this does give me an idea for a post of my own.
As I read her Employment Law Blog, I see as providing more general information for both employers and employees. I must admit to some muddling of the employment law part of my practice since leaving my in-house counsel job. Employment law for me has been employer oriented and that has had to change a bit. I think small businesses need access to counsel for employment issues but I am finding few in the area interested in my overtures to provide these services. If I do not scale down employment law as part of my practice, I find Ms. Pugh's blog has some inspirational ideas for this blog.
Taking a far broader scope than this blog is West Virginia Business Litigation. My aim here was to stay closer to home with more specifically Indiana focus. I am finding myself with plenty to write about, so much that posts planned have been postponed, and I find myself envious of this blog.
read more “Reading around: Employment and business law blogs”
For example, Ms. Pugh's Employee Handbooks Blog does have several posts that are useful outside of Washington. The post FLSA Online Overtime Calculator has utility because the federal regulations apply nationally and the overtime calculator does not necessarily require a judge's interpretation. While the post When You Have to Fire An Employee - 10 Things to Keep In Mind has really good ideas, I must point out that Indiana law also says what cannot be withheld from an employee's paycheck. It is a lawyer thing, see? The point made by in the post still applies. Then there is,Handling Employee Personal Data, which deals with applying a specific Washington statute. However, this does give me an idea for a post of my own.
As I read her Employment Law Blog, I see as providing more general information for both employers and employees. I must admit to some muddling of the employment law part of my practice since leaving my in-house counsel job. Employment law for me has been employer oriented and that has had to change a bit. I think small businesses need access to counsel for employment issues but I am finding few in the area interested in my overtures to provide these services. If I do not scale down employment law as part of my practice, I find Ms. Pugh's blog has some inspirational ideas for this blog.
Taking a far broader scope than this blog is West Virginia Business Litigation. My aim here was to stay closer to home with more specifically Indiana focus. I am finding myself with plenty to write about, so much that posts planned have been postponed, and I find myself envious of this blog.
Potential trouble for employers and income withholding orders -
0 commentsI already outlined some potential problems for employers withholding child support payments from employees' wages, here comes another source of potential trouble.
Indiana Code 31-16-15-16(b) requires employers with more than 50 employees and more than one of those employees has an income withholding order to send the payments to the state central collection unit by "electronic funds transfer or through electronic or Internet access made available by the state central collection unit." Failing to do this results in a $25.00 civil penalty per child support obligor per pay period. The General Assembly added the penalty last year.
Those employers having less than 50 employees are not required to pay the withheld child support by electronic means. The Department of Child Services has a page describing its free online processing and also where to send checks for those without the electronic payment requirement.
Employers should also read the The Department of Child Services FAQ (Frequently Asked Questions).
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Indiana Code 31-16-15-16(b) requires employers with more than 50 employees and more than one of those employees has an income withholding order to send the payments to the state central collection unit by "electronic funds transfer or through electronic or Internet access made available by the state central collection unit." Failing to do this results in a $25.00 civil penalty per child support obligor per pay period. The General Assembly added the penalty last year.
Those employers having less than 50 employees are not required to pay the withheld child support by electronic means. The Department of Child Services has a page describing its free online processing and also where to send checks for those without the electronic payment requirement.
Employers should also read the The Department of Child Services FAQ (Frequently Asked Questions).
Employment law - accomodating religion
0 commentsJust how far must an employer go in accommodating a person's religion?
I missed this case when it came down from the federal Seventh Circuit Court of Appeals (Indiana lies in the Seventh Circuit) but picked it up from Ross' Employment Law Blog. Here is the case outline from that blog:
Title VII always protected an employee's religious beliefs from interference by an employee. Yet, I think a trend of more litigation on religious claims exists and the pharmacists refusing to provide birth control is the cutting edge of this litigation trend. Ross'e Employment Law Blog found the case on the Religion Clause blog. I think reading the post there and its comments gives an idea as to the ideological basis for this trend.
Back to the present case, I was thinking what my reaction would be if one of my business clients called with this sort of problem. I tend to err on the conservative side and would probably have counseled accommodation. Even though I think the behavior goes so far beyond what most would consider reasonable to be disruptive of the business. I noticed that Workplace Prof Blog has a post on the case and I do like his description of the employee's behavior:
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I missed this case when it came down from the federal Seventh Circuit Court of Appeals (Indiana lies in the Seventh Circuit) but picked it up from Ross' Employment Law Blog. Here is the case outline from that blog:
What to do when a pharmacist, for religious reasons, refuses to handle birth control prescriptions?
Neil Noesen went to work for Wal-Mart as a pharmacist. He had religious objections to contraceptive articles, so the boss set things up so Noesen did not have to fill birth control prescriptions, take customer orders for birth control, or handle birth control items.
That wasn't enough for Noesen. If a customer phoned in with a birth control prescription, Noesen put them on hold and walked away without alerting someone else. When a customer came to the counter with a birth control prescription, he would walk away without telling anyone that a customer needed assistance.
Wal-Mart fired Noesen, so of course he brought a federal suit claiming a violation of Title VII.
Wal-Mart won. Accommodating an employee's religion cannot impose undue burden on the employer. The opinion is here (PDF format) and it shows as a non-precedential opinion (which means that it cannot be cited). However, I do think the opinion can be educational if not cited as law.
Title VII always protected an employee's religious beliefs from interference by an employee. Yet, I think a trend of more litigation on religious claims exists and the pharmacists refusing to provide birth control is the cutting edge of this litigation trend. Ross'e Employment Law Blog found the case on the Religion Clause blog. I think reading the post there and its comments gives an idea as to the ideological basis for this trend.
Back to the present case, I was thinking what my reaction would be if one of my business clients called with this sort of problem. I tend to err on the conservative side and would probably have counseled accommodation. Even though I think the behavior goes so far beyond what most would consider reasonable to be disruptive of the business. I noticed that Workplace Prof Blog has a post on the case and I do like his description of the employee's behavior:
Given the employee's insubordinate actions, however, I think the Court could have upheld the termination for reasons unrelated to the employee's religious beliefs without doing a religious accommodation analysis.Even though I agree with the ideas above, I do think the Court needed to do the accommodation analysis. The accommodation analysis forestalls similar cases in the Seventh Circuit. I doubt the decision stops all similar litigation due to my belief that ideology drives these cases and not legalities.
Employee or subcontractor?
0 commentsA question that never seems to die, sort of like Frankenstein's monster. An employer giving the wrong answer is looking at a variety of problems. I remember reading a few years ago about the IRS scrutinizing small businesses about whether subcontractors were actually subcontractors.
Workplace Prof Blog's post,More on Independent Contractors vs. Employees, makes me think that the problem still exists and may be even bigger than might the conventional wisdom. Workplace Prof Blog has a very succinct description of the problem:
I will point out two ares of law where the classification makes a difference: 1) as alluded to above, tax law; and 2) worker's compensation. From my experience, employers know about those two areas of law and are precisely the reason for miscategorizing workers. Employers cut their costs (employee withholding and workmen compensation premiums) by characterizing employees as subcontractors. This a risky and shortsighted plan.
I suggest any employer who thinks about labelling their employees as subcontractors read the post at Workplace Prof - including his links to other sites.
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Workplace Prof Blog's post,More on Independent Contractors vs. Employees, makes me think that the problem still exists and may be even bigger than might the conventional wisdom. Workplace Prof Blog has a very succinct description of the problem:
One of the most important threshold issues in any area of employment law is whether a worker should be classified as an independent contractor or an employee. Not only is this classification important for determining whether an employer meets the employee threshold for a statute, but it also indicates whether a worker can bring a lawsuit under these statutes and how a company has to treat a worker regarding such things as employee benefits.
I will point out two ares of law where the classification makes a difference: 1) as alluded to above, tax law; and 2) worker's compensation. From my experience, employers know about those two areas of law and are precisely the reason for miscategorizing workers. Employers cut their costs (employee withholding and workmen compensation premiums) by characterizing employees as subcontractors. This a risky and shortsighted plan.
I suggest any employer who thinks about labelling their employees as subcontractors read the post at Workplace Prof - including his links to other sites.
Online Resources - Overtime Wage Calculator
0 commentsWorkplace Prof Blog had a post about the Depart of Labor providing an online calculator for overtime wages. I could not get the link to work except to start my e-mail program. Google lead me to FLSA Overtime Calculator Advisor. I have no idea how well it works. If anyone uses it from this blog, I would appreciate you leaving a comment in the Comment section.
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Workplace harassment - Dealing with Troublesome Employees
0 commentsDoes your company have a policy of dealing with harassment issues? Some reasons for having a good policy in place.
Not dealing with sexual harassment in the workplace costs a construction company $60,000.00. Such was the story in the May 8th of The Arizona Republic. All because the company lacked a policy for reporting harassment and dealing with the problem in-house.
The Employer's Law Blog reports on Andreoli v. Gates, a case from the federal Sixth Circuit Court of Appeals. The decision came down last month.
I had a call last week about harassment but with different facts than this Arizona case. The person calling me was receiving harassment because she received a reasonable accommodation under the Americans with Disabilities Act (ADA). I am waiting now to see what action the business takes to stop the harassment. It was a small, family owned business.
Smaller businesses also find themselves more vulnerable because they do want the expenditure for legal services. Sixty thousand dollars exceeds in terms of magnitude what any preventive legal services would cost the business owner.
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Not dealing with sexual harassment in the workplace costs a construction company $60,000.00. Such was the story in the May 8th of The Arizona Republic. All because the company lacked a policy for reporting harassment and dealing with the problem in-house.
The Employer's Law Blog reports on Andreoli v. Gates, a case from the federal Sixth Circuit Court of Appeals. The decision came down last month.
Title VII applies to employers with more 14 or more employees. Small businesses are most likely to have a problem with this type of case (which might make you wonder what was the problem with the Department of Defense). Their very smallness makes a formal complaint and response procedure difficult to keep from sliding into the informality inherent in a small business. That will make no difference when the Indiana Civil Rights Commission comes to investigate.The court allowed Andreoli to proceed on her claim because of the inaction on the part of the Department of Defense. An individual can prevail on a sexual harassment claim if the employer was reckless or negligent in training, disciplining, firing, or otherwise taking remedial action when notified of harassment by a co-worker. Here, the court looked at the timing of the incidents and the employer’s response. In the eleven year period since the complaints were first raised, DeLutiis never received sexual harassment training, nor did he ever receive discipline or counseling regarding his behavior. The only discipline DeLutiis received was a memo instructing him to stay away from Andreoli, after she had already left her position.
This case highlights the importance of taking prompt remedial action to address complaints of discrimination or harassment in the workplace. The alleged lackadaisical response by this employer left it exposed to claims that it failed to properly respond to Andreoli′s complaints.
I had a call last week about harassment but with different facts than this Arizona case. The person calling me was receiving harassment because she received a reasonable accommodation under the Americans with Disabilities Act (ADA). I am waiting now to see what action the business takes to stop the harassment. It was a small, family owned business.
Smaller businesses also find themselves more vulnerable because they do want the expenditure for legal services. Sixty thousand dollars exceeds in terms of magnitude what any preventive legal services would cost the business owner.
Child support issues for Indiana employers and employees
0 commentsChild support affects employers whenever they get an Order from a court for deducting child support from an employee's pay. Distinguishing between an Income Withholding Order and a Wage Assignment does matter much for the discussion here. Regardless of how the court's Order comes to the employer, the point is that it is an order of the court for the employer to take money from the employee's wages.
The employer faces the possibility of being hauled into court for violating the court's Order if the employer does not take the money from the employee's wages . That is called contempt of court. The court may penalize the employer by ordering the employer to paying the amount not deducted from the employee's pay. So do not think about not following the court's Order.
Also, employees fear that they will lose their job when the employer gets an Order deducting child support. Some employers may even think they can fire an employee rather than deduct the child support. Indiana law imposes a penalty upon any employer who does fire an employer for having to process a child support order.
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The employer faces the possibility of being hauled into court for violating the court's Order if the employer does not take the money from the employee's wages . That is called contempt of court. The court may penalize the employer by ordering the employer to paying the amount not deducted from the employee's pay. So do not think about not following the court's Order.
Also, employees fear that they will lose their job when the employer gets an Order deducting child support. Some employers may even think they can fire an employee rather than deduct the child support. Indiana law imposes a penalty upon any employer who does fire an employer for having to process a child support order.
AARP Advocating Change to Indiana's Age Discrimination Statute?
0 commentsOver the Christmas break, I read an AARP publication that had a brief article on how Indiana's AARP would be advocating changes in Indiana's Age Discrimination Act. I wrote about that law here. I was not able to find anything about this on AARP's web page for Indiana, and so I will rely upon my memory. I recall that the proposals include moving enforcement from the Indiana Department of Labor to the Indiana Civil Rights Commission, and generally giving the law and its enforcement more teeth. Something to keep an eye out for during the short session that starts next month.
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Does your company do criminal background checks?
0 commentsThen read the Virtual Chase's article, National Criminal Background Checks: Myths, Realities & Resources. Here are the article's conclusions:
I had a telephone recently from a woman not initially hired because of an error in a background check. They are not perfect - as one of my larger business clients knows. The whole article deserves reading.
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1. Proprietary fee-based databases offer geographical breadth at reasonable cost to criminal records research that would be time-consuming and prohibitively expensive using local, on-site research.
2. Online searches and on-site research risk missing information for a variety of reasons, and the industry standard maintains there is no substitute for searching court records at the local level. The diligent researcher will pursue every available avenue to search down to the lowest possible local level in conducting criminal background searches -- and will recognize there still can be no guarantee of 100% certainty.
3. Given the inconsistency of data collection among and between local and state jurisdictions, varying standards for updating data and for insuring its accuracy, the lack of any standard for collecting information on criminal offenses, and increasing restrictions imposed on information in public records by jurisdictions concerned about privacy rights, a nationwide criminal records search remains a goal, not a given.
About Employees and Subcontractors - FedEx Ground litigation
0 commentsI mentioned the problems of classifying employees as subcontractors here. The Alaska Employment Law Blog published DAlaska: Wage Claims by FedEx Ground Drivers which has a quick study of the problems FedEx has gotten into with its use of subcontractors. If you are thinking that you can save dollars by classifying your employees as subcontractors, then take a look at this post and chase down its linked information. Paraphrasing Kipling: an employee is an employee and a subcontractor is a subcontractor and never shall the twain meet.
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Employment law - news for applicants
0 commentsWhen I was in-house for a local company I made a daily stop at George's Employment Law Blawg. I noticed today that George is altering his blog away from lawyers towards job applicants.
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I was very pleased to see my #17 ranking. I didn’t make the American Bar Association’s “Blawg 100,” which was the cover story (just about the only story) in this month’s ABA Journal, but I’m positioning this blog more in the general career market and don’t try to appeal to lawyers too much — so this ranking means more to me.His writing is just as good and I still think this is one of the best employment law blogs.
Read what you sign
0 commentsWhat if an employee alters a contract but no one catches the changes before the employer signs? From Workplace Management:
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Employer got lucky in this case because the wrong person signed for the employer. Be careful what you sign is an old proverb made even more important with today's technology. While I am not so sure that employee would win every time, what business can afford the time and expense of a law suit? Always read before signing.Laura R. Kreisler pleaded guilty last year to stealing more than $857,000 from Creative Consumer Concepts Inc., or C3, as it’s known in its hometown of Overland Park, Kansas. She was sentenced to seven years in prison.
Case closed? Not really. The embezzlement came to light about a month after she was fired in November 2004 for insubordination. When C3 fired her, the company offered to continue paying her salary for six months. She took the severance contract home and scanned it into her computer and added a provision that would allow her to keep the extra pay even if the firm sued her. Unaware that the contract had been altered, C3’s human resources manager signed it.
Businesses - Do you have a blogging policy?
0 commentsIf you do not, then I suggest reading Blogging consequences. Allot some time to do so, the post is not short. The article points out cases where a blog created liability on the grounds of defamation and cases where employees lost their jobs because of their blog posts.
(I also find it interesting that this blog, Quality System, comes to us from India, and is loaded with references to American law. Any sign of the world's flatness?)
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(I also find it interesting that this blog, Quality System, comes to us from India, and is loaded with references to American law. Any sign of the world's flatness?)
Online Resources: ADAWatch.org
0 commentsWhat I think of the federal Americans with Disabilities Act will probably disappoint everyone. That I think the ADA serves a good purpose will annoy employers. That I also think that the ADA does little to help those facing employment discrimination will upset its advocates. My reasoning is that the United Supreme Court eviscerated the ADA many years ago and nothing has been done to fix it. Which is the reason I no longer take on plaintiff's work under the ADA.
Nevertheless, I see the ADA as aiding people who want to work against irrational employers (and what is discrimination but irrationality when faced with a capable and willing employee that one does not want to hire because of a disability?). Which is why I want to mention ADAWatch.org:
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Nevertheless, I see the ADA as aiding people who want to work against irrational employers (and what is discrimination but irrationality when faced with a capable and willing employee that one does not want to hire because of a disability?). Which is why I want to mention ADAWatch.org:
ADA Watch is a project of the National Coalition for Disability Rights (NCDR), a nonprofit alliance of hundreds of disability, civil rights, and social justice organizations united to defend and strengthen disability rights.
Think arbitartion good for employment law cases?
0 commentsThen take a look at California Labor & Employment Law Blog's Is Arbitration Good or Bad for Employees?:
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"This question is often debated among attorneys, judges and arbitrators. Judges like arbitration because they’re chronically overworked. For instance, the U.S. District Court for the Central District of California had the honor of being the second busiest federal district court in the entire country, with 11,585 civil cases filed in 2006 alone. Judges view arbitration as a way to get disputes out of their overburdened courts. Arbitrators love arbitration because they charge lots of money. And some (but not all) defense lawyers like arbitration for exactly the same reasons most employees should run away from arbitration"
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