At Work: Solutions for Employers & Employees

by Tiffanie C. Benfer, Esquire
On January 24, 2011, a unanimous Supreme Court (with the exception of Justice Kang who took no part in the consideration or decision) held that Title VII creates a cause of action for a third party who themselves did not engage in protective activity but were the subject of employer’s retaliation. Thompson v. North American Stainless, LP, 562 U.S. _____ (2011). This employee-friendly decision by this conservative court should not come as a complete surprise given the Court’s 2006 unanimous decision in Burlington Northern & Santa Fe v. White, 126 S.Ct. 2405 ( 2006).

Continue reading "ONCE AGAIN THE SCOPE OF RETALIATION IS BROADENED BY A UNANIMOUS SUPREME COURT" »

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)

by: Susan L. Swatski

Wage and hour matters are prominent in employment law news these days as a result of the new Federal health care laws - the Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148 and the Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152 (collectively, the “Health Care Laws”). These laws not only will change the availability of health insurance, but also how health care is delivered in America, specifically with respect to direct-care staff.

Continue reading "Expanding Wage & Hour Protections Will Be a Hot Topic for the 112th Congress" »

Posted by Tiffanie Benfer at 09:52 AM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

Employers are turning to social networking sites such as MySpace and Facebook to conduct background checks of job applicants and employees. Social networking profiles allow employers to get a sense of what a potential applicant is like and to check up on activities of current employees. Profiles provide employers the opportunity to search out information about applicants and employees that would otherwise be unattainable.

Continue reading "Viewing Social Networking Sites i.e. MySpace and Facebook Exposes Employers to Claims of Employment Discrimination " »

Posted by Tiffanie Benfer at 04:28 PM | Permalink | Comments (0) | TrackBacks (0)

by Kenneth A. Skroumbelos, Esq.

A federal district court ruled earlier this year that a township did not violate the First Amendment Rights of a non-tenured manager, who had claimed he was terminated in retaliation for his involvement in an organized bargaining unit.

Continue reading "Position Elimination Not Deemed To Be a First Amendment Rights Violation" »

Posted by Tiffanie Benfer at 02:33 PM | Permalink | Comments (0) | TrackBacks (0)

by Kenneth A. Skroumbelos, Esq.

A decision issued earlier this year may cause school boards to think twice about offering to settle employment disputes. The Commissioner of Education upheld an Administrative Law decision enforcing a settlement though is was never formally executed by the parties. See Renee Pollack v. The Board of Educaton of the South Orange/Maplewook School District, Essex County, Agency DKT. NO. 354-11/07.

Continue reading "Settlement Agreement Though Not Executed by Parties, Enforced and Held to Be a Valid Contract" »

Posted by Tiffanie Benfer at 11:54 AM | Permalink | Comments (0) | TrackBacks (0)

by Dana M. Lane, Esq.

A recent decision by the Supreme Court of New Jersey may strengthen the judicial preference for both resolution by arbitration and confirmation of arbitration awards.

Continue reading "A Warning Regarding Arbitration: New Jersey's Highest Court Supports Its Finality" »

Posted by Tiffanie Benfer at 10:52 AM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

The Supreme Court of New Jersey has ruled that under certain circumstances, an employee can reasonably expect email communication with the employee’s attorney through his or her personal account to remain private. In a case of first impression, the court concluded that sending and receiving e-mails via a company laptop did not eliminate the attorney-client privileged that protected the correspondence at issue. (See Stengart v. Loving Care Agency, Inc. 201 N.J. 300 (2010).)

Continue reading "Employee Email Communication Via Employer Laptop Deemed Private" »

Posted by Tiffanie Benfer at 04:47 PM | Permalink | Comments (0) | TrackBacks (0)

by Christina L. Saveriano, Esq.

An employee who brings a Whistleblower action under New Jersey’s Conscientious Employee Protection Act (“CEPA”) may only collect lost pay by proving they were forced out of their job—they may not collect such damages if they leave voluntarily.

Continue reading "Whistleblowers Who Seek Lost Pay Must Prove Constructive Discharge or Termination" »

Posted by Tiffanie Benfer at 11:03 AM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

A little-discussed but potentially important provision in the new health care reform bill, the Patient Protection and Affordable Care Act, provides immediate protections to mothers who return to work while breastfeeding.

Continue reading "Health Care Act Provides Breastfeeding Moms With New Protections" »

Posted by Tiffanie Benfer at 12:12 PM | Permalink | Comments (0) | TrackBacks (0)

by: Dana M. Lane, Esq.

Boards of education and private educational entities contend with a wide variety of challenging employment issues on a daily basis. Educational employers are exposed to employer liability through an array of occurrences between their employees, students, vendors, visitors and other community members.. To combat these potential liabilities, educational employers should focus on preventative and predictive measures rather than on reactive measures—a shift in thinking and policy making that can lead to significant cost savings.

Continue reading "Educational Employers: Tackling Crime-Related Liability" »

Posted by Tiffanie Benfer at 10:37 AM | Permalink | Comments (0) | TrackBacks (0)

by: Tiffanie C. Benfer, Esq.

Title II of the Genetic Information Nondiscrimination Act of 2008 a/k/a “GINA” makes genetic information off limits to employers and health insurers. Employers are prohibited from discriminating against employees or applicants based on genetic information. More specifically, GINA prohibits employers from considering genetic information when making employment decisions.

Continue reading "GINA: Protection against Discrimination Based on Genetic Information " »

Posted by Tiffanie Benfer at 02:53 PM | Permalink | Comments (0) | TrackBacks (0)

Last June, many were surprised by the Supreme Court's decision in Gross v. FBL Financial, which held plaintiffs bringing claims for age discrimination under the Age Discrimination in Employment Act (ADEA) to a higher standard of proof than is required for plaintiffs who sue under other statutes for discrimination on the basis of gender, race, religion or pregnancy. The FBL Financial decision, authored by conservative Justice Clarence Thomas, was roundly criticized by advocates for employees. Congress is now considering a legislative override, a proposal that was just endorsed by the New York Times.

http://www.nytimes.com/2009/10/13/opinion/13tue3.html?_r=1&ref=opinion

Current Democratic control of Congress may mean that H.R. 3721, which would overturn the FBL Financial decision, likely will be passed in the near future, a reality that impacts strategy for litigants on both sides of age discrimination claims.

Continue reading "Congress Weighs Legislative Override of Supreme Court Age Discrimination Decision" »

Posted by Tiffanie Benfer at 05:27 PM | Permalink | Comments (0) | TrackBacks (0)

Many employers include provisions in employment contracts providing that all disputes will be submitted to binding arbitration, and shall not be litigated in court. The Eastern District of Pennsylvania recently made clear that these agreements are enforceable only if they are specific and expressly agreed to by the employee.

In Stankiewicz v. Cisco Systems, the court held that there was no enforceable arbitration agreement when it was not part of the initial employment package, but was appended by the employer to an Incentive Compensation Plan. The employer took the position that participation in the plan constituted “acceptance:” of the mandatory arbitration provision. When the plan was presented to the employee, the employee objected. His employer responded that the incentive plan was on a “take it or leave it” basis, and that if the employee did not accept he would receive only his base salary or be terminated. With no alternative to obtain his incentive bonus, the employee accepted the plan.

The court held that this was not a “voluntary” acceptance of the agreement to arbitrate, stating that the employer’s argument to the contrary was “nonsense.” The court therefore denied the defendant’s motion to compel arbitration.

This decision will be used by attorneys for employees to fight arbitration compelled by “fine print” arbitration agreements. An employer who wishes to minimize litigation expenses by requiring arbitration needs to ensure that the employee signs an agreement at the outset of employment. If the agreement to arbitrate is offered later, the employee should be offered some compensation for the changed arrangement, and the opportunity to freely negotiate. Otherwise, the provision may be unenforceable.

Posted by Tiffanie Benfer at 01:13 PM | Permalink | Comments (0) | TrackBacks (0)

Has your employee asked for time off under the FMLA? The Third Circuit has made clear that firing that employee after the leave is requested but before it begins constitutes unlawful “retaliation” under the FMLA.

Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.

The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.

On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.

Continue reading "Employers: Take Care Before Firing an Employee who Has Requested FMLA Leave" »

Posted by Tiffanie Benfer at 12:28 PM | Permalink | Comments (0) | TrackBacks (0)

Last week's 5-4 decision in Gross v. FBL Financial Services, authored by conservative Justice Clarence Thomas, took several surprising turns. First, the Court addressed an issue -- standard of proof for claims under the Age Discrimination in Employment Act (ADEA) -- that was not even raised by the parties. Second, the Court declined to apply settled caselaw and evidence of Congressional intent for other statutes barring discrimination. The end result is an interpretation of the ADEA that makes the burden of proof for older workers bringing federal claims of age discrimination much higher than it is for workers alleging other forms of discrimination.

What does the FBL Financial decision say?

The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.

What does FBL Financial mean in practice?

Continue reading "Supreme Court Raises the Bar for Older Workers" »

Posted by Tiffanie Benfer at 10:55 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie C. Benfer

While other states are raising the bar on equality and recognizing marriages of same-sex couples, Pennsylvania still fails to provide basic equal right to approximately a million Pennsylvanians.

Pennsylvania civil rights laws provide no protection to Lesbian, Gay, Bi-Sexual, and Transgender people (LGBT). The Pennsylvania Human Relations Act (PHRA), provides protection against discrimination in housing, employment, and public accommodations on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and use of a guide dog, but completely fails to provide any protection for sexual orientation, gender identity, or gender expression.

Continue reading "Pennsylvania Civil Rights Laws Still Does Not Protect Against Discrimination Based on Sexual Orientation" »

Posted by Tiffanie Benfer at 01:10 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie C. Benfer

In the past year the Equal Employment Opportunity Commission (EEOC) experienced a record number of pregnancy discrimination filings. Women with child bearing responsibilities have typically reported experiencing discrimination when they informed their employers that they were pregnant. The EEOC has also received a surge in claims from women who have experienced discrimination simply because they are mothers. Women report they are not being considered by prospective employers and not being awarded promotions because they have children. This type of discrimination has nothing to do with any perceived notion of a pregnant woman’s ability to work. Rather, women are being discriminated against based on stereotyped sex roles. Women are responsible for family care giving and therefore, are often seen as incapable of performing at the same level as their male peers in the workplace.

Continue reading "THE EEOC WARNS EMPLOYERS: STEREOTYPING FEMALE EMPLOYEES CONSTITUTES GENDER DISCRIMINATION" »

Posted by Tiffanie Benfer at 10:10 AM | Permalink | Comments (0) | TrackBacks (0)

The Economic Stimulus Package signed into law with fanfare on February 17, 2009 provides help for employees who have lost their jobs or will lose their jobs between September 2008 and December 2009. Under the new law, many employees who are eligible for COBRA will be allowed to continue their benefits by paying only 35 % of COBRA premiums. The other 65% must be paid by the former employers, who will then be entitled to a tax credit for those payments.

For employees: Am I eligible?
You are an “eligible individual” under the American Recovery and Reinvestment Act (“ARRA” or “Stimulus Package”) if:
• Your employment was involuntarily terminated between September 1, 2008 and December 2009
• You are otherwise eligible under COBRA
• You are not eligible for another group health coverage (such as Medicare or your spouse’s plan)
• Your adjusted gross income is less than $125,000. (If your income is between $125,000 and $145,000 you will be eligible for a partial subsidy.)

Continue reading "Economic Stimulus Package Provides COBRA Subsidy for Employees, Administrative Burdens for Employers" »

Posted by Tiffanie Benfer at 05:47 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

In 2007, the Equal Employment Opportunity Commission (“EEOC”) filed a record number of lawsuits over caregiver bias in the work place. See http://www.eeoc.gov/stats/pregnanc.html The EEOC also obtained 30 million dollars in monetary benefits, which is a significant increase from the prior year’s monetary recovery of 10.4 million dollars. (This monetary recovery also includes pregnancy discrimination claims.) (Note the 2008 EEOC statistics are not yet available.)

Caregiver discrimination claims have been successfully litigated in the recent years under the “sex-plus” theory. This theory prohibits employers from treating employees differently than other workers on the basis of their sex “plus” a facially neutral characteristic such as having young children.

One way employees have successfully challenged “sex-plus” discrimination is through the disparate impact theory. For example: A female asserted that her employer’s sick leave policy, which provided that sick leave could only be used when the employee was sick had a disparate impact on female employees because female employees were more likely to stay home with a sick child. Consequently, the policy forced women to resign more frequently than their male counterparts because of their caregiver role.

Continue reading "Navigating the Tricky Waters of Caregiver Discrimination" »

Posted by Tiffanie Benfer at 10:52 AM | Permalink | Comments (0) | TrackBacks (0)

I’m seeing a trend. We seem to be getting more and more calls from employees who have lost their jobs while in the midst of treating for cancer, and from employers who are trying to figure out what to do about an employee with a serious illness.

Needless to say, employees whose employment is terminated during treatment have a particularly difficult time, especially if they are dependent on employer-provided health insurance. The question is difficult too for employers who want to stay within the bounds of the law, but cannot afford to keep on an employee whose performance is lacking.

The trend we’ve seen appears to be worldwide. The New York Times today discussed an analysis in the Journal of the American Medical Association, concluding that cancer survivors in the U.S. and Europe are 37 % more likely to be unemployed than their healthy peers.

http://www.nytimes.com/2009/02/18/health/18cancer.html

What are the rights of an employee with cancer? Under the Americans with Disabilities Amendments Act, it is clear that cancer is a covered “disability.” An employee cannot be fired simply because he or she has cancer. Likewise, an employee cannot be fired simply because he or she took leave under the FMLA.

Continue reading "Fighting Cancer and Discrimination Too" »

Posted by Tiffanie Benfer at 11:06 AM | Permalink | Comments (0) | TrackBacks (0)

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in….”Abraham Lincoln, Second Inaugural address.

Sometimes litigation feels like war. The other party is your “adversary.” There are battles, there is strategy, questions of when and where to spend your resources. You hope for the quick win, but everyone knows that there is the possibility of a drawn-out internecine conflict.

For lawyers and litigants who really care about being principled, kind, and good people, conduct of litigation can bring a dilemma. How to engage in battle without losing what is most important in yourself?

Abraham Lincoln’s words are helpful. Even in the midst of a war that caused untold death and destruction, Lincoln counseled moving forward “with malice toward none; with charity for all.” But, he wasn’t taking a wimpy position by any means. In the same sentence, he urged his listeners not to give up the fight -- “with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in.”

And, so we litigate. Without malice, and without losing our sense of decency, we can still strive to prove our cases, to finish our work, and to work for the result we think is right. I’m going to try to litigate like Lincoln.

Happy President’s Day.

Posted by Tiffanie Benfer at 07:29 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Two weeks ago the Third Circuit Court of Appeals in Eshelman v. Agere Systems ruled that prevailing Plaintiffs in employment discrimination cases are entitled to be made whole for injuries caused by employer discrimination.

Eshelman argued that the taxes she would have to pay on the lump sum award of back pay would be higher than what she would have had to pay in the normal course of her employment had she not been discriminated against. In some cases, a lump sum payment award places the employee in a higher tax bracket for that year. A straight award of back pay would therefore, not make the employee “whole” for the damages incurred as a result of the employer’s discrimination.

Eshelman asserted that an additional monetary award was warranted to offset the negative tax consequences of the back pay award she received in her favorable finding. Eshelman’s argument is completely logical. To make her pay higher taxes on income she would have earned but for her employer’s discrimination would just add insult to injury.

Continue reading "Additional Compensation Warranted to Offset Tax Implications of Discrimination Awards " »

Posted by Tiffanie Benfer at 11:14 AM | Permalink | Comments (0) | TrackBacks (0)

Sometimes it can be penny wise and pound foolish to take action against an employee without a clear understanding of the law.

In Brown v. Nutrition Management Services Co., a decision of the Eastern District of Pennsylvania released on January 30, the court found that the company’s failure to have an attorney research the requirements of the Family and Medical Leave Act (“FMLA”) meant that the company had not acted in “good faith.” This finding cost Nutrition Management Services over $80,000 in additional liquidated damages.

Continue reading "Don’t Tell Me You Didn’t Check with a Lawyer!" »

Posted by Tiffanie Benfer at 12:05 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

In 2008, the Third Circuit Court of Appeals, in a case of first impression, considered whether the Pregnancy Discrimination Act (PDA) recognizes a claim for discrimination based on having an abortion. The Court concluded in Doe v. CARS Protection Plus Inc. that the PDA prohibits employers from discriminating against women who have had an abortion. http://law.lexisnexis.com/practiceareas/Featured-Content/Labor--Employment/Free-Download-Mealeys-Litigation-Report-Employment-Law

Continue reading "Pregnancy Discrimination Act Forbids Firing an Employee Because She Had an Abortion" »

Posted by Tiffanie Benfer at 09:41 AM | Permalink | Comments (0) | TrackBacks (0)

It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html

This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and -- most importantly -- to frame the issues for an overworked investigator.

Continue reading "EEOC Backlog Swells. What Does This Mean for Your Case In the EEOC?" »

Posted by Tiffanie Benfer at 03:34 PM | Permalink | Comments (0) | TrackBacks (0)

What kind of legal advice did the Philadelphia Fire Department rely on when it instituted a policy of not hiring fire fighters over the age of 40? Seven applicants proved that they were highly qualified and could pass the physical test, but they were still turned down solely because of age. I’m gratified, but not surprised, that the Pennsylvania Human Rights Commission (PHRC) found last week that the policy violates the state prohibition of age discrimination.

Here's a link to the story in the Philadelphia Inquirer.

http://www.philly.com/philly/news/local/38741837.html

Continue reading "Age Discrimination in the Philadelphia Fire Department" »

Posted by Tiffanie Benfer at 10:40 AM | Permalink | Comments (0) | TrackBacks (0)

Barack Obama signed the Lilly Ledbetter Fair Pay Act yesterday. I've written about this legislation before, and won't repeat it today, except to say that this is a sign that the current Congress is willing to take action to protect employees' rights, and a sign that Congress is willing to overrule the Supreme Court when it will not fully implement Congressional intent.

Here is an excerpt from President Obama's remarks:

"Equal pay is by no means just a women's issue -- it's a family issue. It's about parents who find themselves with less money for tuition and child care; couples who wind up with less to retire on; households where one breadwinner is paid less than she deserves; that's the difference between affording the mortgage -- or not; between keeping the heat on, or paying the doctor bills -- or not. And in this economy, when so many folks are already working harder for less and struggling to get by, the last thing they can afford is losing part of each month's paycheck to simple and plain discrimination.

"So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

"Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time."

-- Pres. Barack H. Obama, in remarks at signing ceremony for the Lilly Ledbetter Fair Pay Act of 2009, Jan. 29, 2009

Posted by Tiffanie Benfer at 11:28 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

Continue reading "The Supreme Court Recognizes a Broad Interpretation of the Anti-retaliation Provision of Title VII " »

Posted by Tiffanie Benfer at 12:44 PM | Permalink | Comments (0) | TrackBacks (0)

Late yesterday afternoon, the U.S. Senate passed the Lilly Ledbetter Fair Pay Act by a vote of 61 to 36. I’ve written about this legislation several times. This bill reverses the Supreme Court decision in Goodyear v. Ledbetter, which strictly limited the timeframe for employees to file a claim for pay discrimination. Under the Supreme Court decision those claims would be barred by the narrow statute of limitations in Title VII.

It looks as if this will be the first bill signed into by President Obama.

Here’s a link to a news story about the vote.

http://www.bloomberg.com/apps/news?pid=20601103&sid=awK1FNtOsAVI&refer=us

Posted by Tiffanie Benfer at 09:56 AM | Permalink | Comments (0) | TrackBacks (0)

Yesterday the Supreme Court unanimously held that students who are sexually harassed in school may bring a claim under Title IX and under Section 1983 of the civil rights laws. Thus, the Supreme Court resolved a split in the circuits (the intermediate appellate courts) in favor of allowing civil rights suits to go forward. This pro-plaintiff decision was a surprise from the current Supreme Court.

In Fitzgerald v. Barnstable School Committee, 2009 WL 128173 (U.S. 2009), the parents of a kindergarten student reported to the school that their daughter was bullied and sexually harassed by a third grader on the school bus. They told the school that the older child made their daughter pull up her dress, pull down her underpants and spread her legs. The parents were not satisfied when the school suggested transferring their daughter to a different bus, feeling that the proposed solution would punish the wrong child.

Continue reading "Unanimous Supreme Court Allows Suit Against School for Its Failure to Properly Respond to Student-on-Student Sexual Harassment" »

Posted by Tiffanie Benfer at 12:03 PM | Permalink | Comments (0) | TrackBacks (0)

As someone who works daily on cases involving racial discrimination and other prejudices, I can’t let Martin Luther King Day pass without comment. But, anything I can say is inadequate, both to the memory of Martin Luther King and to the anticipation of our first African American President. Rather than waste time with my own words, I’ve given you a few of my favorite MLK “law, justice and employment” quotes.

“A right delayed is a right denied.”

“Injustice anywhere is a threat to justice everywhere.”

“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important.”

Continue reading "Martin Luther King Said It Better Than I Can" »

Posted by Tiffanie Benfer at 07:13 PM | Permalink | Comments (0) | TrackBacks (0)

If you have time to escape to the movies this weekend, I recommend: “Milk.” Sean Penn was terrific. Do we think that Harvey Milk would be pleased with the progress we’ve made on civil rights protection for gays? Probably not.

Thirty years after Harvey Milk’s assassination, bigotry and discrimination against gays and lesbians remains socially acceptable in too many circles and legal in too many states.

Continue reading "We're Still Not There on Gay Rights" »

Posted by Tiffanie Benfer at 07:46 PM | Permalink | Comments (0) | TrackBacks (0)

Last week, in a post entitled "$1.55 million Settlement . . . ", I discussed cases handled by this office which involve egregious symbols of racial hatred, including hanging nooses. Some of those cases cannot be discussed here because of confidentiality agreements.

Last night, Channel 10 ran a story about one of the cases handled by Hill Wallack's employment group. This case involves an employee who complained of racial harassment (including the display of a hangman's noose). This employee has now found that his union is retaliating against him. For a transcript and commentary on Joanne Rathgeber's TV appearance, click the link:

http://www.nbcphiladelphia.com/news/local/Man-Allegedly-Confronted-by-Co-Worker-with-Noose.html

Posted by Tiffanie Benfer at 11:50 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.

Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”

Continue reading "The Supreme Court Considers Again the Scope of Title VII's Anti-Retaliation Provision" »

Posted by Tiffanie Benfer at 10:24 AM | Permalink | Comments (0) | TrackBacks (0)

TWO, FOUR, SIX, EIGHT, WOMEN SAY THE HOUSE IS REALLY GREAT!

The House of Representatives, that is… Two hours ago, the House of Representatives passed two bills that will help prevent gender based pay discrimination. The Lilly Ledbetter Fair Pay Act reverses the decision of the Supreme Court, which I wrote about in my first ever entry on this blog. The decision had interpreted the statute of limitations for Title VII so narrowly that it made it impossible in practical terms for those who suffered pay discrimination to seek recourse.

The Paycheck Fairness Act stiffens penalties for gender based pay discrimination. It also addresses a related problem, protecting workers who share pay information with their colleagues from retribution by the employer. This protection is necessary because employers who forbid employees from sharing pay information are effectively preventing the employees from learning about pay discrimination.

These were just the second and third pieces of legislation voted on by the House since it resumed sessions on Tuesday. Last year, the Senate struck down the Lilly Ledbetter Fair Pay Act. It should pass handily in the newly elected Senate.

This looks like a signal for sea change in direction after the conservative Bush years. The conservative majority of the Supreme Court may continue to try to narrowly interpret civil rights legislation, but Congress has sent a strong message – through the ADA Amendments Act (which I previously wrote about) and these new laws – that it will take swift action to undo the damage done by the Court. It will be interesting to see if Congressional action to overturn Supreme Court decisions tempers the "conservative activism" of this Supreme Court the next time it is called on to interpret civil rights legislation.

Here's a link about the vote: http://money.cnn.com/2009/01/09/news/economy/pay_equity/

Posted by Tiffanie Benfer at 05:53 PM | Permalink | Comments (0) | TrackBacks (0)

Last week, Merrill Lynch agreed to pay $1.55 million to settle a case of discrimination brought by an Iranian Muslim employee who alleged that he was passed over for promotion and then fired because of his religion and national origin. The complaint alleged that the employee was told that he would not be allowed on the trading floor “because you are from a country which has a high risk factor and a threat.” Not surprisingly, Merrill Lynch denied the accusations.

What accounts for this relatively large settlement? From the publicly available information, it appears that managers at Merrill Lynch were blatant in expressing their bigotry. Bigotry that is expressed in more subtle ways is equally illegal, but may be more difficult to prove. Another important factor is that the Plaintiff in this case was a highly compensated professional. When a highly paid employee is fired, the potential for damages grows.

Continue reading "$1.55 Million Settlement in Case of Religious Discrimination and National Origin Discrimination" »

Posted by Tiffanie Benfer at 12:15 PM | Permalink | Comments (0) | TrackBacks (0)

“Sunshine is the best disinfectant” -- Supreme Court Justice Louis D. Brandeis

Finally! Pennsylvania’s amended Right to Know Law went into effect yesterday. For years, Pennsylvania has been among the worst states in the nation when it comes to openness of public records. Pennsylvania’s Right to Know Law had so many loopholes, restrictions and impediments to enforcement that it was dubbed the “Right Not to Know Law."

Continue reading "Pennsylvania Lets the Sun Shine In" »

Posted by Tiffanie Benfer at 01:57 PM | Permalink | Comments (0) | TrackBacks (0)

Happy New Year! Congress gave American workers a huge gift this year by amending the Americans with Disabilities Act. Those amendments, which sustantially increase the protections for disabled workers, go into effect today.

Since 1992, the Americans with Disabilities Act (ADA) has prohibited discrimination against the disabled. The Americans with Disabilities Act Amendment Act (ADA-AA), which goes into effect today -- January 1, 2009 -- represents the most significant change to employment law in years. The ADA-AA greatly expands the class of persons who may seek protection as “disabled” and therefore expands responsibilities – and potential liability – for employers.
Passage of the ADA-AA was a decisive victory for advocates of employees and the disabled. After a series of court decisions during the last 15 years had steadily narrowed the reach of the ADA, Congress stepped in with the ADA-AA and told the courts in no uncertain terms that the ADA is to be interpreted far more broadly.

Continue reading "The Americans with Disabilities Act is Tougher than Ever: What’s an Employer to Do?" »

Posted by Tiffanie Benfer at 08:44 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

Alexander McPherson is a professor of molecular biology and biochemistry at UC Irvine. He was a recently stripped of his responsibilities and placed on unpaid leave because, as he described in his column “The Sham of Sex Harassment Training” Los Angeles Times, (11/28/08) “I have consistently refused, on principle, to participate in the sexual harassment training that the state and [his] employers seem to think is so important.
See http://www.latimes.com/news/opinion/la-oe-mcpherson21-2008nov21,0,4090949.story

Well, McPherson’s employer is not the only employer to realize that sexual harassment training is important. In fact most public and private sector employers provide sexual harassment training.

Continue reading "Professor Placed on Unpaid Leave for Refusing to Take Part in Sexual Harassment Training " »

Posted by Tiffanie Benfer at 11:33 AM | Permalink | Comments (0) | TrackBacks (0)

The New York Times reports that 533,000 jobs were lost in November, the largest one-month decline since December 1974.

http://www.nytimes.com/2008/12/06/business/economy/06jobs.html?_r=1&adxnnl=1&adxnnlx=1228507331-YNAOQpjUJ8LVr45LIZgrIg

No doubt that this is a difficult time for both employers and employees. For employees facing layoffs, emotions are obviously running high. For employers, a reduction in force brings many possible pitfalls. An ounce of prevention in the form of careful planning and review of the decisions of managers may prevent many pounds of damage in the form of lawsuits and liability. Here are some suggestions for employers:

1. Take a careful look at the demographics of the people who will be laid off. Consider having someone independent of the managers who made the layoff decisions conduct this analysis. Make sure that employees in a protected class – older workers, women, or any particular racial group – are not being targeted disproportionately. Imagine that you will have to explain any disproportionate impact to a jury.

Continue reading "Layoffs: Top 10 Tips for Employers Who Would Rather Not Land in Court" »

Posted by Tiffanie Benfer at 04:45 PM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

November 4, 2008 was a historic day for many Americans. They voted in their first presidential election. When I heard some of these first time voters speak about what motivated them to vote I got goose bumps. I was especially moved by individuals voting for the first time because they believed that for the first time their vote would count.

I was saddened to hear from a colleague, subsequently, that an individual lost his job because he exercised his constitutional right to vote. The Los Angeles Times also reported an incident of an employee of 20 years who was terminated because she voted during her break. Here is the link: http://articles.latimes.com/2004/dec/09/nation/na-voter9.
Many states have statutes that afford employees with the right to time off to go and vote. But, Pennsylvania and New Jersey do not provide statutory protection to the voter on voting day. In Pennsylvania there is case law that establishes it is against public policy to fire someone for jury duty. Voting could be considered a similar civic duty, which would render a termination of an employee for exercising his/her constitutional right to vote a wrongful termination.

Continue reading "TERMINATED FOR VOTING" »

Posted by Tiffanie Benfer at 12:15 PM | Permalink | Comments (0) | TrackBacks (0)

When may an employer lawfully use information about an employee’s criminal history? May an employer refuse to hire any employee with a conviction in his or her past? The EEOC conducted an open meeting last week to discuss these questions. It is likely that the EEOC will issue more comprehensive guidelines addressing these issues in the future.

Policies that prevent the hiring of employees with a history of a criminal conviction raise questions because those policies have a disparate impact on African American employees, who are statistically more likely to have a criminal record. Many employers would prefer not to hire any employees with a criminal history – in fact, a recent survey showed that more than 40 % of employees said that they would not ever hire someone with a criminal record. Fear of a suit based on negligent hiring makes it reasonable for employers to be concerned about employees with criminal records. Is that discriminatory? And, if it does have a disparate impact on persons of color, is it allowed anyway? There is no absolutely clear answer in the statutes or case law, but there are hints and guidance

Continue reading "Life Sentence: When Should a Criminal Record Bar Employment?" »

Posted by Tiffanie Benfer at 09:36 AM | Permalink | Comments (0) | TrackBacks (0)

A western Pennsylvania jury yesterday awarded a verdict of 1.8 million dollars to a woman whose employer fired her three weeks into her six-week maternity leave. Carole Smith’s baby spent the first two weeks of his life in neonatal intensive care; the week after she brought him home, she was fired by her employer Normandy Properties LLC.

After only two and a half hours of deliberation, the jury awarded her $600,000 in compensatory damages and 1.2 million in punitive damages. Additional damages, such as backpay and attorneys fees, are not presented to a jury and may be awarded by the judge.

Although Congress has not specifically outlawed “caregiver discrimination,” the EEOC issued guidelines last year about the treatment of workers who have caregiving responsibilities. Here's the link:

http://www.eeoc.gov/policy/docs/caregiving.html

Continue reading "Oh baby . . . 1.8 Million Dollar Jury Verdict: Pregnancy and Caregiver Discrimination" »

Posted by Tiffanie Benfer at 01:15 PM | Permalink | Comments (0) | TrackBacks (0)

The Department of Labor yesterday published new regulations interpreting the FMLA (Family Medical Leave Act). Those regulations will become effective in 60 days.

The new regulations are voluminous, and we are still in the process of analyzing them. Here’s a link, for anyone who wants about 700 pages of light reading:

http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf

By way of background, the FMLA allows qualified employees (roughly speaking, employees who have been employed by the employer for at least 12 months) of covered employers (employers with at least 50 employees) to take a leave of up to 12 weeks in a 12 month period for specific reasons, such as the birth of a child, a serious health condition, or to care for an immediate family member with a serious health condition.

The new regulations are helpful to employees because they provide guidance on expanding FMLA coverage for military families. The DOL also declined requests from employer groups to limit the definition of “serious health condition.” However, the regulations also add some hurdles for employees who need to take FMLA leave.

Continue reading "New Regulations May Add Hurdles for Employees Who Wish to Take FMLA Leave" »

Posted by Tiffanie Benfer at 10:27 AM | Permalink | Comments (0) | TrackBacks (0)

"Ted Daywalt, president of VetJobs.com, a site that helps military people find jobs, says he knows companies that simply refuse to hire them. 'I had one senior VP of HR tell me that if I had three candidates for a senior position in the company, and one of them mentioned they're in the Guard or Reserve, he would only have two candidates left. And I said, "You know, that's illegal." And, his response was, 'I can always find a reasonwhy not to hire somebody,' he says."
-- Excerpt from 60 Minutes report on USERRA violations, November 2, 2008

"As we express our gratitude, we must never forget that the highest appreciation is not to utter words but to live by them."
-- John F. Kennedy

USERRA Rights for Veterans and Obligations for Employers
By: Tiffanie C. Benfer, Esq.

Our country’s current military engagement abroad has resulted in involuntary duty for many employees. They leave behind civilian jobs and create voids in the employer’s workforce. In some cases the employer must fill this void in their absence. However, when the veteran employee returns from active duty s/he has the legal right to be re-employed even if the employer has no vacancies. In an effort to protect the men and women of the armed forces and to encourage participation in the armed forces, Congress enacted the Uniformed Services Employment and Re-employment Rights Act (USERRA) to provide the men and women of the armed services job protection. What does this mean for employers and returning vets?

Continue reading "Employment Rights for Veterans" »

Posted by Tiffanie Benfer at 05:18 PM | Permalink | Comments (0) | TrackBacks (0)

Today is Veterans Day, a day which seems to slide by with too little notice, unless you happen to notice that the post office is closed. I just returned last night from England, where this weekend marked their “Remembrance Day.” It seemed that everyone there – schoolchildren, waitresses, newscasters, and the queen – was wearing a commemorative red poppy, and the news channels spent hours on Sunday covering the ceremonies. Maybe we can learn something from this British pomp and circumstance, especially if it helps us to better focus on the needs of those returning from war.

As I passed through customs on my way home, I struck up a conversation with a young man who was returning from Iraq – he was coming home a month earlier than expected, with a bandaged arm and a big grin, ready to surprise his wife and three children at their door. I hope that his country gives him a welcome as warm as the one I'm sure he got from his family last night.

In honor of this young man, and all of our veterans of wars past and present, our next blog entry will be on employer’s obligations when it comes to employment of returning veterans.

Posted by Tiffanie Benfer at 10:12 AM | Permalink | Comments (0) | TrackBacks (0)

What does pregnancy do to your chances of success at work? If you are Amy Poehler, it seems not to hurt a bit. One week before giving birth she had us howling while she performed her Sarah Palin rap on Saturday Night Live. Check it out if you haven’t seen it yet.

http://www.nbc.com/Saturday_Night_Live/video/clips/update-palin-rap/773781/

OK, Amy Poehler is a super-talented, hilarious woman who apparently has an unending stock of energy. For the rest of us mere mortals, it doesn’t always go so smoothly. I’m not just talking about morning sickness and aching backs.

A study released last week indicates that discrimination against pregnant workers persists thirty years after the passage of the Pregnancy Discrimination Act. The PDA makes it unlawful to discriminate against an employee (or job applicant) on the basis of pregnancy. The law is clear, but putting it into practice has not gone so smoothly.

Continue reading "The Rap on Pregnancy Discrimination" »

Posted by Tiffanie Benfer at 07:39 AM | Permalink | Comments (0) | TrackBacks (0)

"Work is about a search for daily meaning as well as daily bread, for recognition as well as cash, for astonishment rather than topor; in short, for a sort of life rather than a Monday through Friday sort of dying."
-- Studs Turkel, 1912 - 2008

I’ve just heard that Studs Turkel passed away last night. What a loss!!

Maybe this isn’t exactly an employment law topic, but I think I can tie it in…. Studs Turkel wrote one of my favorite books, "Working." I read it back in college (long before I thought about being an employment lawyer), and it has stuck with me ever since. Studs Turkel’s talent was to talk to everyday people and find what was interesting in their lives. In "Working," he interviewed people of all professions, chambermaids and bankers, bus drivers, and maybe even a lawyer. (I don’t actually remember that one). I once heard Studs Turkel interviewed on NPR. He was asked whether he had to interview hundreds of people to come up with one of the interesting stories he told in "Working." He responded, “No, everyone has a story.”

Actually, I think that is why I love being an employment lawyer. Everyone does have a story. Each employee has a story, and each business does too. Employment law is very personal, and gives me a chance to hear the stories of others. Maybe I won’t ever write those stories quite like Studs Turkel, but this work does give me a chance to appreciate the stories and to incorporate them into the briefs I write.

Now, if you haven’t read it yet, go to the library and check out "Working." Some of the professions profiled might be a little dated. (The elevator operator in a department store comes to mind.) But the essential humanness of the stories is timeless.

Studs Turkel, your memory will live on.

Posted by Tiffanie Benfer at 08:16 PM | Permalink | Comments (0) | TrackBacks (0)

http://online.wsj.com/article/SB122486400199366913.html

Today’s Wall Street Journal reports that the International Monetary Fund’s governing board cleared its chief Dominique Strauss-Kahn of wrongdoing over an affair with a subordinate because the affair was consensual and he showed not favoritism or retribution toward her. Nevertheless, the WSJ reported that the board called the incident a “serious error in judgment.”

It is a not-surprising commentary on human nature that office romances are common, and that they are commonly perceived to be problematic.

Putting aside the question of whether an office affair is a benefit or a problem for productivity or morale, what are the consequences from an employment law point of view?

Continue reading "After the Affair" »

Posted by Tiffanie Benfer at 01:21 PM | Permalink | Comments (0) | TrackBacks (0)

At the last Presidential debate John McCain talked about Joe the Plumber and the media swooned. The anecdote was simple, easily understood, and appealing. So what if the real Joe isn't really a plumber? Never let the truth get in the way of a good story...

Barack Obama countered with the true story of Lilly Ledbetter, but nobody swooned. "Huh?" was the more common response. Ledbetter's story doesn’t fit nicely into a sound bite, and it's got all that darn complexity that comes with the truth, so why should we take the trouble to understand it?

It is worth knowing Lilly Ledbetter’s story because it says something important about employment law and something profound about the Supreme Court. Here’s the Ledbetter story, in a nutshell:

Continue reading "Joe the Plumber and Lilly ... who?" »

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)