The Injury Board Commentary - Workplace Discrimination

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

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

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

Proposed Law Offers Employees Protection

Linda Chalat — Wed, 18 Jan 2012 16:09:00 GMT

On January 11, 2012, Sen. Carroll and Rep. Fischer introduced SB 12-003 – Concerning the use of consumer credit information by employers. This proposed law would establish the purposes for which consumer credit information can be used by an employer.

The bill creates the “Employment Opportunity Act,” which the purposes for which consumer credit information (i.e., consumer credit reports and credit scores) can be used by an employer or potential employer. Specifically, the bill:

Prohibits an employer’s use of consumer credit information for employment purposes if the information is unrelated to the job;
Requires an employer to disclose to an employee or applicant for employment (jointly, “employee”) when the employer uses the employee’s consumer credit information to take adverse action against him or her and the particular credit information upon which the employer relied;
Authorizes an employee aggrieved by a violation of the above provisions to bring suit for an injunction, damages, or both; and
Requires the department of labor and employment to enforce the laws related to employer use of consumer credit information.

Originally posted at InjuryBoard by Linda Chalat

Quick Quiz: Where Does the U S Chamber Stand on Lawsuits?

Mike Bryant — Wed, 04 Jan 2012 12:36:00 GMT

Like last time I looked at this topic : It depends. They fight against asbestos suits because of claims of fraud with the trusts. Unfortunately for them, a Government Accountability Office report released last month, commissioned by House Judiciary Chairman Lamar Smith (R-Texas) (most likely at the request of the Chamber itself), found the exact opposite. They regularly send out emails, produce commercials, and mass mail their slanted stories in their continual attack on the civil justice system. They even created bogus polls so that they could tweet that X number of people are against lawsuits.

They then, like most of their members, sue at the drop of a hat:

Recently, the U.S. Chamber of Commerce filed a lawsuit against the National Labor Relations Board (NLRB) challenging the group's election rules.

The U.S. Chamber of Commerce gets involved in lawsuits at a rate of two a week. Try to find the small business or consumer protection in this list:

Justified the actions of Wall Street banks that drove the country’s economy into turmoil.
Defended the most conceited and worst behaved CEOs and their most extravagant excesses.
Tried to force workers, instead of employers, to pay for their own safety equipment.
Filed numerous actions opposing any move to combat climate change.
Sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children.
Opposed measures allowing workers to receive a rest period during a full work day.
Fought on behalf of lead paint manufacturers found to have poisoned thousands of children.
Defended corporations that discriminated on the basis of race and disability.
Spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.

To learn more about what the U S Chamber and their members do in the courts check out : Do as I say not as I sue.

As an attorney who sues on behalf of those who are injured, I will not question the Chamber's right to seek their own relief. It just seems at odds with their own propaganda. Although, as I have pointed out in the past, the reality is that they really want the court rooms for themselves. They want tort reform protection so that they and their big business members can duck personal responsibility. They want hand outs. They most of all want open courthouses so they can sue everyone else.

Originally posted at InjuryBoard by Mike Bryant

Hamline Business School Missed the Mark with Tom Emmer (Correction)

Mike Bryant — Tue, 03 Jan 2012 12:13:00 GMT

I was reading the different thoughts about the withdrawal of a job offer to former Governor Candidate Tom Emmer from the Hamline University Business School. The speculation was that due to of his views, he wasn't a good fit for the school. It looks like the school had the right to make that choice. I'm sure most pro-business conservatives would see that.

It also is clear that Emmer has said a number of things that would affect how others would view him. You simply can't single out a group as un-American and not expect them to be bothered by that. I am looking forward to the next time I see him to ask what the heck was he thinking.

That all being said, the students really could have benefited from time with him. He is an articulate advocate who can bring a ton of real life experience to the classroom. The best way for a school to produce the best prepared student is to make sure that they get an opportunity to get some real world exposure along with all of the theory most schools are built on.

I'm sure there will be a "getting used to him" time period for any place he goes. But, that's a part of what makes him successful and allowed him to have the type of career he's had to this point. I've disagreed with much of what he has done, but the question is "Would he bring something to the classroom"?

Emmer was a defense attorney I usually enjoyed dealing with. He knows how to try a case and how to value cases. He also has had experience in trial, arbitrations, and with simple motions that would add to the education of any future lawyers. Hamline missed the boat by at least not giving him a chance to share those experiences. Hopefully, there will be others who will see that.

Correction: I originally misidentified the school involved as being the Law School, but a reader was quick to point out that it was the Business School that had made the offer. I am sorry for the mistake , but stand by my belief that a opportunity was missed for the students. Maybe a law school will benefit.

Originally posted at InjuryBoard by Mike Bryant

Religious Discrimination in the Workplace

Brad Hewett — Tue, 27 Dec 2011 17:22:50 GMT

I recently had the privilege of representing an individual in South Carolina that was terminated by his employer because of his religious beliefs and observances. After filing suit on behalf of this individual alleging religious discrimination, we were able to successfully resolve the matter by reaching a favorable settlement for the former employee.

The United States has taken pride in being a cultural melting pot since its foundation in the eighteenth century. Even before the actual founding of The United States, people migrated to America in search of a land where they could peacefully practice their religion without fear of government oppression and individual discrimination. The pilgrims, Quakers, and Puritans were among these first groups who helped build the foundation for the great country that we live in today. The freedom of religion was such a core value that it was adopted into the U.S. Constitution in the 1^st Amendment on December 15, 1791.

As the nation progressed into the mid-1900’s, many employers lost sight of this key fundamental American value that the founders sought to instill in every citizen. Discrimination, especially in the workplace, was an epidemic in American society as many Americans were being treated unequally because of their race, color, religion, and national origin. In an effort to curb this problem, Congress passed the Civil Rights Act of 1964.

Title VII of this Act specifically dealt with discrimination in the workplace. Title VII states:

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

There are two main rules which have been carved out of this statute. The first one is that an employer may not take an employee’s religion into consideration when making certain decisions such as compensation, terms, conditions, or privileges of employment, etc. For instance, an employer cannot refuse to hire a person just because they are atheist. There is one narrow exception to this first rule though. If the nature of the job that an employer is hiring someone for requires that the position be filled by a person of a certain religious belief, then this is acceptable under the law. This is called the bona fide occupational qualification requirement. This exception is very common when a religious organization is hiring an employee. For instance, a catholic church can require that the priest they hire is indeed catholic.

The second rule deals with accommodations. An employer must work to try to accommodate an employee’s sincerely held religious practices, beliefs, and observances, unless it causes an undue hardship on the organization. An undue hardship is defined as a “more than de minimis” cost or burden. Scheduling conflicts between work activities and religious activities are often at the forefront of accommodation issues. There is a fine line that employers must toe in making scheduling decisions which may be an undue hardship to the organization. Each case is different in this regard.

If you feel that you have been discriminated against in the workplace because of your religious beliefs, then you must first contact your local Equal Employment Opportunity Commission (EEOC) office (unless you plan to bring an action under the Equal Pay Act) and file a charge of discrimination. If there is no EEOC office in your locality, then you may call 1-800-669-4000 for more information. The EEOC will investigate your charge and will determine whether or not to grant you a “Notice-of-Right-to-Sue.” This notice gives you a right to sue in a court of law. If a “Notice-of-Right-to-Sue” is granted, then you will have 90-days to file suit. For more details, please visit http://www.eeoc.gov/employees/charge.cfm and see ‘How to File a Charge of Employment Discrimination’ or contact a local labor law attorney.

Originally posted at InjuryBoard by Brad Hewett

Gay Community Ruins the Institution of Marriage and Apologizes to Minnesota's Amy Koch

Lindsay Rakers — Thu, 22 Dec 2011 22:33:48 GMT

Senate Majority Leader (Minnesota) Amy Koch engaged in an "inappropriate relationship" with a Senate Staffer. She recently issued a public apology for her extramarital affair. The other guy is rumored to be Michael Brodkorb. Koch and Brodkorb campaigned heavily this year to add an amendment to the constitution to define marriage as between a man and woman only - thereby banning gay marriage. Indeed, same-sex couples cannot possibly respect commitment, love, and family. Clearly, only male-female marriages pass the test of time. Are you kidding me? Do these people really still think like this, and are so confident in their thoughts, that they preach it? Well to that, the gay community of Minnesota responded to the recent scandal with the following:

"On behalf of all gays and lesbians living in Minnesota, I would like to wholeheartedly apologize for our community's successful efforts to threaten your traditional marriage," reads the letter from John Medeiros. "We apologize that our selfish requests to marry those we love has cheapened and degraded traditional marriage so much that we caused you to stray from your own holy union for something more cheap and tawdry."

Well said. Judgeth not, lest ye be judged, my friends.

Lindsay Rakers, Missouri LGBT Injury Attorney

Originally posted at InjuryBoard by Lindsay Rakers

Are My Kids Second Class Citizens?

Lindsay Rakers — Wed, 30 Nov 2011 22:39:46 GMT

As we prepare ourselves for more political campaigns, more commercials, more left wing v. right wing, we are certain to continue to hear about marriage equality. We are certain to hear closed-minded people blubbering about how same-sex couples don't know how to raise kids or that the children we raise are doomed to also be gay. My two children have two moms - does that make them less American? Less deserving of success? Less deserving of happiness? People do not choose to be gay. People are not raised to be gay. If that were the case, no one would be gay - it wouldn't be worth the torment, it wouldn't be worth in inequality. Below is a recent video of a young man speaking about his life - speaking about his two mothers. If you listen to him for just a couple minutes, it is easy to see that this man clearly has a bright future ahead of him. And guess what, he is no less of an American, no less of a man than you. Watch and open your mind.

http://www.youtube.com/watch?v=yMLZO-sObzQ&feature=player_embedded

For more information on LGBT rights, please visit my website www.stlouisLGBTlawyer.com.

Originally posted at InjuryBoard by Lindsay Rakers

Conservative Think Tank "Discovers" Importance of 7th Amendment Right to Civil Jury Trial

Andrew Cochran — Wed, 30 Nov 2011 10:00:00 GMT

The Discovery Institute is a conservative think tank headquartered in Seattle, Washington, dedicated to "the reinvigoration of traditional Western principles and institutions and the worldview from which they issued." The Institute has a special focus, to emphasize "the role that science and technology play in our culture and how they can advance free markets, illuminate public policy and support the theistic foundations of the West."

The Institute is now highlighting a religious discrimination lawsuit brought by a former employee of NASA's Jet Propulsion Laboratory (JPL). David Coppedge was a 14-year veteran and the senior member of the JPL team that oversees computers for NASA's mission to send a satellite to Saturn, one of the most complicated in its history. He is also a fervent Christian and believer in the "intelligent design" theory of history, which contrasts with Darwin's theory of evolution, and he manages a website on creationism.

Over the course of a decade, Coppedge periodically discussed "intelligent design" with co-workers and offered them DVDs on the subject. Then, in March 2009, Coppedge's manager ordered him to stop "pushing religion," which resulted in an argument between the two, with Coppedge finally agreeing to halt such discussions. A month later, JPL suddenly demoted Coppedge and warned him that he had violated the ethics policy. Coppedge filed a discrimination suit against JPL in Los Angeles. JPL responded to the lawsuit by firing Coppedge. Mr. Coppedge is being defended by attorney William J. Becker Jr., who is supported by the Alliance Defense Fund, the outstanding group defending religious liberty across America.

On November 18, a Los Angeles County Superior Court judge ruled Friday that Mr. Coppedge is entitled to exercise his 7th Amendment right to a civil jury trial against the JPL. In an interview on the nationally syndicated "What's Up" radio program, Discovery's legal affairs policy analyst, Joshua Youngkin, explained to host Terry Lowry the "very significant point" of the judge's ruling:

"The jury and not the judge will determine whether or not David Coppedge had his rights infringed. And that's a very important right that we all cherish."

As Terry Lowry pointed out, the right to a trial by jury was listed in the Declaration of Independence above the right to bear arms. Whether you believe in "intelligent design" or the Darwin theory of evolution is irrelevant. Every American is entitled to assert, before a local jury of peers, whether adverse employment actions were the result of religious discrimination. Americans who want to "tort-reform" away cases involving medical malpractice with damage caps and procedural hurdles rarely stop to think whether the tort reformers would then turn against other rights protected in the Bill of Rights.

You can listen to the pertinent portion of Terry Lowry's interview of Joshua Youngkin on the "What's Up" program by downloading this short podcast.

Originally posted at InjuryBoard by Andrew Cochran