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Whistlblowers awarded $540,000 in punitive damages

Will Parker — Sat, 20 Sep 2008 17:03:00 GMT

Recently, $540,000 was awarded to three former Texas Southern students who spoke out upon uncovering a financial scandal. The individuals all kicked out of school and temporarily charged with committing a crime where awarded $350,000 in punitive damages in addition to the $190,000 previously awarded to aid with their loss.

“The awarded amount was intended to send a message to the University letting them know that retaliation against whistle-blowers won't be tolerated and we wanted to send a message that this should not happen again — the violation of First Amendment rights and the false arrest,"

As quoted, "The battle is not over yet because of the appellate process," said Brown. "But I'm glad the jury sent a message to the community that if you oppress someone's rights, society will not stand for it."

Even though compensation has been awarded, an appeal is evident states Peter Plotts, the assistant attorney general who represented TSU. He stated that some of the jurors admitted to discussing the case outside the court and because of one juror admitted to the fact, they were excused before the punitive damages were decided and thus could be points on appeal.

Originally posted at InjuryBoard by Will Parker

"work off the clock" - the Fair Labor Standards Act prevents employer abuse

Doug Landau — Wed, 20 Jan 2010 16:58:00 GMT

The Fair Labor Standards Act (FLSA) was passed to protect American workers from being abused by their employers. Often times, employees are forced to work “off-the-clock.” This occurs when managers and supervisors intimidate employees by claiming that there are plenty of unemployed individuals out there who want their job. (See prior post as to the Fairfax County unemployment statistics.) This makes employees reluctant to stand up in the face of abuse for fear of retaliation or losing their jobs. When corporations require salaried employees to work longer hours or increase a person’s job duties or responsibilities, they may be violating the law.

Under the FLSA, a “Bona Fide Executive” or managerial employee typically receives a salary for all hours worked and is not entitled to overtime pay. To qualify for this type of pay arrangement, however, the employee’s “primary duty” must be “management” of the store or department to which they are assigned. Under the Department of Labor regulations, “the amount of time” an employee spends on a particular task can be a good indicator of whether “management” is their primary duty. Therefore, if a company continues to add more job duties and responsibilities that really isn’t “management” work, they could be violating the law by changing the very nature of the job. In some instances, adding the additional work will create a situation where the employee should actually be receiving overtime pay, even though they still receive a salary. There is nothing wrong with employees pitching in during tough economic times. But, a company cannot be allowed to violate the law and abuse its employees so its high level executives can continue to make their same salaries, receive big bonuses and not share in the increased work. The ABRAMS LANDAU team has referred several callers with wage and salary claims to experienced labor and employment lawyers for their cases

Originally posted at InjuryBoard by Doug Landau

Philadelphia Police Officers Win $10 M Judgement

Greg Owen — Fri, 16 May 2008 21:45:50 GMT

The three officers were awarded a total of $10 million by a jury this week. The jury awarded $2 million to Raymond Carnation, $3 million to William McKenna, and $5 million to William's twin brother Michael McKenna after deliberating three hours.

The three former Philadelphia police officers claimed they suffered retaliation on the job after they showed opposition to discrimination they observed towards fellow officers who were African American. The three officers who sued the city of Philadelphia are white.

"We got justice," declared William McKenna, 42, of Northeast Philadelphia, outside the U.S. Courthouse the day after he and his fellow ex-officers - his twin brother, Michael, and Raymond Carnation - won the hard-fought case." They are hopeful they taught the city of Philadelphia something.

Missouri Senate Bill 592 - Debated on the Senate Floor this Afternoon

Lindsay Rakers — Mon, 23 Jan 2012 17:36:25 GMT

Senate Bill 592 will be argued on our senate floor today. Bill 592 is the employment discrimination bill that will prevent employees from directly suing the person who actually commited the workplace discrimination - discrimination based upon age, race, disability, gender, religion or creed. If the current law is changed, in Missouri, companies will be required to take full blame for the discrimination - there is no individual liability. It gets worse - t he bill will also limit the amount the employee can actually recover in his/her employment discrimination lawsuit. In other words, individuals have no exposure for their discriminatory acts and companies can get away with discrimination with no real consequence. After all, the employer will be permitted to cut the employee out of a job without good excuse, save the expense, and know it's liability is limited.

I encourage all Missourians to contact your state senator and explain that they must vote no on this damaging legislation!

Originally posted at InjuryBoard by Lindsay Rakers

Questions for Justice Thomas

Doug Landau — Mon, 07 Mar 2011 20:29:19 GMT

Justice Thomas has gone 5 years without asking a single question from the bench of the United States Supreme Court (!) according to recent NPR news reports.

In my prior post, I wrote about a great Supreme Court Justice, Thurgood Marshall. A man of courage, conviction and honor. By asking the lawyers for the people coming before the court relevant and revealing questions, the advocates can learn what issues are important to the Nation's highest judges and respond. If the justices ask no questions, then the attorneys do not know what the judges are thinking. For all they know, the judges clerks, who are the "cream of the law school crop" are writing the opinions.

Having been to oral argument at the Nation's high court, I have seen judges close their eyes, talk amongst themselves and sometimes even look bored. But they ALL asked questions. The people who had struggled for years to get an audience with them at least had a clue as to what was important and what needed further clarification. But with Justice Thomas, one must surmise that he holds the people coming to the court with such contempt, that they do not warrant speaking to in front of the gallery and other justices. Or, he is afraid to open his mouth in open court ? His record for lack of open intellectual curiosity is astounding. Humans are communicative animals. Not communicating in such a setting is troubling to say the least.

I would have admiration for Clarence Thomas if he had, when asked to be a Supreme Court nominee, said "I am not qualified Mr. President." Why can't people asked to serve beyond their abilities say they are not ready or not prepared ? That would have been honest. And intellectual honesty and the open exchange of ideas is what is needed on the Supreme Court of the United States. I tell all ABRAMS LANDAU law clerks that the bulwark of the American Constitution is "NOTICE" and "AN OPPORTUNITY TO BE HEARD." Justice Thomas' silence deprives those with their final appeals both mainstays of our national fabric. And that I why I question our "silent Justice."

Originally posted at InjuryBoard by Doug Landau

Medical Pot User May Have Benefits Go Up In Smoke

Linda Chalat — Mon, 12 Sep 2011 16:26:14 GMT

A recent decision from the Colorado Court of Appeals has decided that a medical marijuana user who is fired for a positive drug test result is not eligible for unemployment compensation benefits. In Beinor v. Industrial Claim Appeals Office, ___ P.3d ___, 2011 WL 3612226 (Colo. App. Aug. 18, 2001), the Colorado Court of Appeals upheld the Order of the ICAO denying unemployment compensation benefits to a discharged employee who had tested positive for marijuana. The employee presented evidence that, in accord with his doctor’s recommendation, he used "medical marijuana" for severe headaches.

The employer did not contest the employee's eligibility to use medical marijuana, and it did not argue that the employee's marijuana use adversely affected his job performance. Rather, the employer simply contended that the discharged employee was disqualified from receiving benefits because of C.R.S. § 8-73-108(5)(e)(ix.5). This section of the law allows denial of benefits if the employee tests positive "during working hours" for a "controlled substance" that is "not medically prescribed."

The Deputy's initial decision denied the employee's request for benefits. The Hearing Officer reversed, finding that (1) the claimant was eligible to be on the medical marijuana registry, and (2) there was no evidence his marijuana use had adversely affected his job performance. The ICAO reversed the Hearing Officer, agreeing with the employer that the employee was disqualified under C.R.S. § 8-73-108(5)(e)(ix.5). The Court of Appeals has now affirmed the ICAO's decision.

In approving the ICAO's Order, the Court of Appeals focused on the fact that medical marijuana is not "prescribed" by a physician; rather, a physician may "recommend" its use under certain circumstances. Accordingly, the marijuana ingested by the claimant was "not medically prescribed" within the meaning of C.R.S. § 8-73-108(5)(e)(ix.5), and denial of benefits under that section was appropriate. The Court then held that this denial of benefits based on the use of medical marijuana did not violate the Colorado Constitution, specifically, Article 18, § 14, the constitutional amendment dealing with medical marijuana. In doing so, the Court observed that this constitutional amendment created limited exceptions to Colorado's criminal laws, and that the denial of benefits in this non-criminal setting did not violate the amendment.

Originally posted at InjuryBoard by Linda Chalat

The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act: timely help for employees

Timothy Smith — Mon, 12 Jan 2009 11:28:54 GMT

The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act have reached critical mass in Congress and looks to become law under our next administration. So, what are they and how does this affect you?

The Lilly Ledbetter Fair Pay Act was named after a female employee at Goodyear Tire named, Lilly Ledbetter. She had worked for Goodyear for nearly 18 years when she found out that men at the company, who did the exact same job, were being paid more money for the same work.

Well that doesn't seem fair?

Lilly didn’t think so either, so after talking with her bosses failed, she filed suit in 1998 alleging discrimination in pay based on gender which was prohibited by the 1964 Civil Rights Act. She alleged that Goodyear, as far back as 1992, was paying her less than men and it was discriminatory.

Goodyear argued that the 1964 Civil Rights Act required a claimant to file their claim within 180 days of the alleged discriminatory act and that if it occurred first in 1992, she was too late. Since she filed in 1998, Goodyear asked the court to throw her case out.

Lilly responded with common sense…… How was it possible to file in 1992 when she didn’t find out that her employer was discriminating against her till 1998?

The case wound it’s way up to the highest court of the nation, the U.S. Supreme Court. The Supreme Court in 2007, interpreted the Civil Rights Act of 1964 to hold that Lilly had 180 days, whether she knew about the discrimination or not. Our congress took immediate action to correct what they felt was a legislative error in the original act.

Congress felt that each and every time an employer discriminates against an employee by paying them less due to gender, that this was discrimination and a violation of the act. Accordingly, the Lilly Ledbetter Fair Pay Act will restore the long standing rule that each and every discriminatory paycheck is a violation. This means that employees won’t be punished when their employer hides the discriminatory activity from them for more than 180 days which, under the old rule, would insulate them from any claim.

The Paycheck Fairness Act is another act that will level the playing field between employees and employers. This act will amend the 1963 Equal Pay Act and strengthen current laws prohibiting wage discrimination. It will also require that the federal government become more pro-active in identifying and prohibiting wage discrimination.

Once enacted, the Paycheck Fairness Act will strengthen the 1963 Equal Pay Act in the following manner:

1. It will strengthen the remedy provisions of the act to provide greater punishments for those employers that discriminate.
2. It will mandate that the EEOC survey available pay data and issue regulations which will increase their ability to discover violations of the law and improve their ability to enforce the laws.
3. It will bar employers from retaliating against employees who share wage information with fellow workers. Some companies actually do this! How else will an employee know if they are being discriminated against if they can’t ask a co-worker, “How much you getting for this job?”
4. The Act will mandate collection of gender-based information in the Current Employment Statistics survey and will standardize an analysis of systematic wage discrimination which will become an important tool for detecting violations in gender based wage discrimination.

As our economy continues to suffer, we are seeing more and more employers cutting costs at the expense of it’s employees. These two important bills, the Lilly Ledbetter Fair Pay Act and the the Paycheck Fairness Act, will give employees the tools they need to identify discrimination when it’s occurring and give them the opportunity to take corrective action against their employers.

Originally posted at InjuryBoard by Timothy Smith

Employment Discrimination - Alive and Well

Lindsay Rakers — Mon, 23 Jan 2012 00:00:48 GMT

Employment discrimination in the workplace is still alive and well. It is important that Missouri residents are well-informed regarding their rights so that if something is amiss, it can be reported. Reporting is the only way to stop this behavior.

The State of Missouri prohibits employers from discriminating someone based upon age. In fact, your age cannot even contribute to your employer's decision to lay you off, terminate you, or demote you. To do so is age discrimination. Employers in the State of Missouri are also barred from taking any adverse employment actions based upon disability, gender, religion, race, color, or national origin. Again, to do so is classified as discrimination and is not allowed. Unfortunately, to date, there are no statewide protections for the LGBT community in Missouri. It is sad but true that in the State of Missouri, a person can still be fired for his/her sexual orientation or gender identity.

Senate Bill 188 was recent legislation that would have made it more difficult for employees to sue their employers for discrimination. The Bill, if successful, would have made trials more difficult and even if the employee won, it would have limited the available remedies. Specifically, Missouri Senate Bill 188 would have required the employee to prove that the discrimination was the "motivating factor" in the adverse employment action. Such a standard would have directly changed the current "contributing factor" standard. Further, the employee would have been barred from recovering attorneys' fees and also would have put caps on both mental damages and punitive damages. Thankfully, after Missouri Senate Bill 188 passed in the legislature, Missouri Governor Jay Nixon vetoed the bill.

In addition to discrimination protection, Missouri provides protection for individuals who are sexually harassed or otherwised harassed at work. Missouri employers are not permitted to retaliate or punish employees who report any of the above behavior. If the employer does somehow punish the reporting employee (the "whistle-blower"), the employee may have a claim for retaliation and/or a whislte-blower lawsuit)

Other improper employment practices include:

FMLA violations - if an employee develops a serious health condition, the employee's family member develops a serious health condition, or the employee gives birth or adopts a child, that employee is entitled to FMLA (Family Medical Leave Act) time per law, the employer must provide up to 12 weeks of unpaid leave (once per year) if the employee is covered

Fair Labor Standards Act Violations (FLSA) - where the employer fails to properly pay the employee for overtime by not calculating hours correcly, paying in goods or services instead of money, or not compensating the employer for all hours worked including training

Missouri Minimum Wage Law (MMWL) - the minimum wage in Missouri is currently $7.25 and any refusal to pay below that minimum wage is a violation of state law

Lindsay Rakers, Missouri and Illinois Attorney

Originally posted at InjuryBoard by Lindsay Rakers

Facebook Posts Could Cost You a Job

David Mittleman — Mon, 06 Feb 2012 08:50:50 GMT

You'd better think twice before you post a drunken picture of yourself at the Super Bowl party last night--employers are using the social networking website to weed out potential employees before they even get to the interview. Some employers are even demanding that employees reveal user names and passwords before hiring. While companies have long supervised their employees for questionable behavior that could reflect poorly on the company, social networking websites like Facebook are taking the notion of "big brother" to a whole new level.

The courts have yet to hash out the legal aspects of employers using social networking sites to monitor their employees, but I still wouldn't take the chance. Individuals concerned about privacy rights question employers' use of social media, especially when two people with the same name might get confused or the information on their Facebook page might be inaccurate. Nevertheless, in a survey of employers, 73% say they don't give potential applicants the opportunity to explain questionable information.

Lawyers also warn that employers should be careful when using social networking sites to sort through potential employees since personal information such as disability status, race or gender are usually discernable from these websites and are federally protected statuses. If the candidate doesn't get the job, they could cite discrimination and sue the company, forcing them to prove that the social networking information didn't influence their hiring decision.

Originally posted at InjuryBoard by David Mittleman

Apollo Group/University of Phoenix Online Settles Discrimination Lawsuit over Mormon Favoritism

Mike Ferrara — Wed, 05 Nov 2008 16:55:05 GMT

In what is being called the largest settlement in the history of religious discrimination lawsuits brought by the Equal Employment Opportunity Commission (EEOC), the Apollo Group Inc. has agreed to pay $1.89 million for the alleged discrimination at its University of Phoenix Online division against its non-Mormon employees.

In the 2006 class action lawsuit, 52 former enrollment counselors claimed that the University of Phoenix gave members of the Church of Jesus Christ of Latter-day Saints preferential treatment for promotions, sales leads, and tuition grants and wavers as well as numerous other perks. The EEOC’s investigation of the for-profit school discovered a prevalence of religion-based hiring and promotion practices there.

The University of Phoenix is the country’s largest private university, enrolling more than 300,000 students every semester in online and campus programs. Apollo Group's annual sales this fiscal year alone exceeded $3 billion. Since the settlement, it has said both that it is "pleased to have resolved this matter," and that the $1.89 million won’t significantly affect its financial standing.

According to Apollo, its agreement to the settlement does not signal an admission of guilt or wrongdoing. It does, however, put provisions in place to ensure that religious and other discrimination will not occur again at the University of Phoenix. The company must now hire a diversity officer to monitor its behavior and make sure EEO training is given to all of its higher-ups, including managers and supervisors with hiring power. It must also send a written announcement to all supervisors, managers and employee relations personnel declaring "zero tolerance" for Mormon favoritism. According to the consent decree Apollo has signed, any manager found to be engaging in favoritism will immediately be fired. The EEOC will keep close watch on the University of Phoenix for a period of four years to ensure its compliance with the agreement.

Originally posted at InjuryBoard by Mike Ferrara