The Injury Board Commentary - Workplace Discrimination - Most Commented

Herman Cain: Candidates and Their Backgrounds

Mike Bryant — Sat, 26 Nov 2011 09:27:00 GMT

So women keep coming out with stories of past harassment by Presidential Candidate Herman Cain. I absolutely believe that he should have a right to defend himself. The thing is that he was the one who chose to jump into the Presidential race. If he was back just doing whatever he does in his job, this really wouldn't be much of a story. As a candidate, they throw the door open to past and present questions.

I've especially watched with interest as he has moves from denials, to explanations, to blame, and finally the public's response.

- The denial was first a combination of "nothing ever happened" and a sort of "who knows it was a long time ago?" But, that got taken away when it was confirmed that there had been past settlements.

- Explanations have been odd combinations of denials and blaming with a mix of total refusal to walk through what really happened. They have touched on the horrors of a tort system that makes abusers liable and "blame the victim" theories.

- The blame has been thrust on liberals and the media, because this shouldn't be a story. The thing is, no matter what happened, the response to the charges is as much a story as the story itself. Does he really look like a guy who is going to handle adversity?

- In the end we will have the public's response. If the claims are true and he did lie about what happened, that should come out. If none of it's true, then it seems that he could have handled this a lot better. But, with a payment and the numbers, it looks like that is unlikely.

Sexual harassment does happen. Hopefully, those who spoke out and protected themselves will empower those who are being threatened now. As a Candidate for President of the United States, Cain could have gone a long way to help even if every former claim was true. But, the delay, deny, defend strategy always looks easy at first.

Originally posted at InjuryBoard by Mike Bryant

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

Former South Jersey Gas Employee Wins $1.8 Million after Employer Failed to Make Accomodations for His Depression

David Mittleman — Sun, 09 Aug 2009 11:46:31 GMT

Atlantic City—a former employee of South Jersey Gas sued his employer for failing to make accommodations for his depression and then firing him just days shy of his 20^th anniversary of employment with the company. A jury awarded the man, Scott Jones, $1.1 million in emotional damages and $720,544 in economic damages on July 24^th.

Jones filed suit back in 2006 after his employer fired him, citing “poor work performance”. However, South Jersey Gas maintains that Jones was fired for his low work performance, alleging that he made no sales in the months prior to his termination and that he had “never been a top performer”. Nevertheless, the company was undergoing a restructuring plan that unduly increased Jones’ workload, putting increased pressure on him and ultimately contributing to his depression. Furthermore, Jones’ annual reviews showed he always received satisfactory marks for his work, despite his depression.

Moreover, Jones went to his supervisors in the three months prior to his termination to discuss accommodations for his depression because of his increased inability to concentrate. His supervisors referred him to a counselor through the company Employee Assistance Program and Jones signed a waiver allowing his supervisors to discuss his psychological evaluation and then to make the corresponding work accommodations. However, his supervisors never contacted the counselor to look over Jones’ evaluation. His employers allege that the document Jones signed simply stated that he had attended counseling, but did not give them the right to discuss his psychological evaluation. South Jersey Gas plans to appeal the decision.

Originally posted at InjuryBoard by David Mittleman

Make Sure You Read Your Applications For Insurance

Mike Bryant — Wed, 15 Apr 2009 09:11:00 GMT

There are two times when insurance companies are very interested in the activities of those they insure. They are very interested in ensuring that the premiums get paid and they are again very interested when asked to pay out. Make sure you put your utmost interest in filling out the application.

Don't except advice from agents who act like the application isn't important. Also make sure you think through each question. We see this every once in awhile when a person is denied medical coverage, disability benefits, or life insurance. Sometimes the companies yell fraud, but usually it's just a simple denial, even over a little mistake.

I got thinking about this as I read about a woman who lost out on unemployment benefits after she hadn't disclosed that she had bought with depression. She hadn't filled out her employment application with the information. She was later fired and barred from all coverages.

If you have a dispute over coverage seek out the help of an experienced lawyer who can help you review the denial. Also do your best to review all the questions and answer them the best you can.

Originally posted at InjuryBoard by Mike Bryant

Breaking Down Borders: Speaking Up For Those without a Voice

Nick Avgerinos — Fri, 06 Jun 2008 11:10:00 GMT

If a tree falls in the forest but no one hears it, does it still make a sound? You bet it does. Similarly, just because an injured party cannot speak for himself does not mean that he does not have something to say. Entiendes?

For the millions of immigrant workers in this country, this is precisely the problem they face every day. Hay muchos problemas, from the language barrier to lack of knowledge regarding one’s rights. The AFL-CIO does an impressive job of delineating such rights in an accessible way. In fact, it goes so far as to provide the same information regarding workers’ rights in Chinese, Spanish, and Vietnamese, thereby lowering the barrier of access to information. This sort of access, however, assumes that immigrant workers have the knowledge, time, and ability to use it. Unfortunately, this is rarely true.

The wages of immigrant workers are often much below the minimum wage. Perhaps an idealistic few might wonder how this is possible. Well, the meager sums paid by their employers still exceed the amount they could earn in their native countries. For many immigrant workers, one hour of the California minimum wage is more money an entire day of wages in Mexico.Simply put, it’s better than nothing…and their employers know it. Oftentimes, then, their safety and well-being is sacrificed in favor of the almighty dollar. In a world where quality is often sacrificed for quantity, safety training is too often supplanted by a learn-as-you-go mentality.

More complicated problems arise when the immigrants being abused in the workplace are here illegally. Starving transcends the language barrier. So does the agony of losing one’s limb. Yet, beyond the pangs of such suffering, the injured usually remain silent. Why? Because they don’t have rights; at least that is what they’re made to believe. As attorney Pat Jennings reported in January, though, the South Carolina Supreme Court recently ruled that citizenship status should not affect a worker’s ability to recover for workers’ compensation claims.

Yet, for most immigrant workers, speaking up means getting pushed further down. It means possible lower wages, even longer hours, or being forced to leave the country.

Such fear is alive in the community of Postville, where the United States Immigration and Customs Enforcement raided the AgriProcessors meatpacking plant on May 12, putting nearly half of the plant’s workforce out of commission. What this may mean for us: higher kosher meat prices. What this means for them: putting their entire lives on pause.

As those AgriProcessors employees who escaped detainment huddle in the local Catholic Church, praying for the chance to return to their lives, praying for the chance to be underpaid and overworked, we have stop and wonder why. Some of us might remember the old Schoolhouse Rock theme song, espousing that “Knowledge is Power.” It’s clear that many immigrants today lack any knowledge regarding their rights, while being acutely aware of their own powerlessness. Providing information, like that advanced by the AFL-CIO, is a step toward increasing knowledge and thereby distributing the extreme imbalance of power often present in the workplace.

Originally posted at InjuryBoard by Nick Avgerinos

Wal-Mart Settles Wage and Hour Claims/FLSA Violations

Timothy Smith — Fri, 26 Dec 2008 14:38:24 GMT

On Christmas Eve 2008, Wal-Mart agreed to settle nearly 65 state and federal class-action lawsuits filed by current and former employees. The heart of the claims made by the plaintiffs included allegations that they were forced to work through breaks and denied overtime pay that they had rightfully earned under federal law.

According to sources, Wal-Mart agreed to pay as much as $640 million to settle these suits. While this may seem like a large number, it is less than .1% of Wal-Mart's $378.8 billion in revenue from 2008; revenue earned by multiple violations of Federal Wage and Hour laws and discrimination against it's own employees.

This settlement comes right on the heels of the 12/9/08 settlement in Minnesota where Wal-Mart agreed to pay $54.3 million to settle a case where the sitting judge found that Wal-Mart had committed more than 2 million wage and hour violations and ordered Wal-Mart to pay it's employees over $6 million dollars in back pay. This 12/9/08 settlement avoided a January 2009 trial where plaintiff's were ready to document nearly $2 billion dollars in unpaid wages owed by Wal-Mart.......

A smart move by Wal-Mart considering their trial record on these employment/wage and hour cases:

1. In 2006 a Pennsylvania jury awarded Wal-Mart employees $78 million in unpaid wages;

2. In 2005 a California jury ordered Wal-Mart to pay $172 million in wrongfully denied wages arising out of meal breaks owed to it's employees.

Wal-Mart isn't the only Fortune 500 giant who has put profits ahead of it's people. It seems that the worse this economy gets, the greater the lengths that employers will go to in an effort to earn a buck, including cheating it's own employees.

If you, a friend or family member has been denied wages or have been discriminated against by your employer, contact an attorney immediately.

Originally posted at InjuryBoard by Timothy Smith

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

Wal-Mart Settles Massive Wage & Hour Lawsuit

Zev Antell — Thu, 03 Dec 2009 15:59:17 GMT

According to an article in today’s Boston Globe, Wal-Mart has agreed to settle a wage and hour lawsuit which will net $40,000,000 to be divided amongst a class of tens of thousands of employees and former employees. The lawsuit alleged a cornucopia of violations including failure to pay overtime, denial of rest and meal breaks, and manipulation of employee time cards.

Companies that fail to pay overtime or who require workers to work “off the clock” run the risk of serious liability under state and federal law. Large companies like Wal-Mart with many different locations are wise to take stock of their wage practices because if violations exist, they are likely to be replicated throughout the company and not be isolated to a single location or even region.

Originally posted at InjuryBoard by Zev Antell

Labor bill may give workers tool to fight for higher pay.

Wayne Parsons — Mon, 26 Jan 2009 13:09:48 GMT

The Wall Street Journal (1/24, Trottman, Maher) reported, "The Lilly Ledbetter Fair Pay Act, named for a woman whose attempt to sue Goodyear Tire & Rubber Co. for pay discrimination was blocked because she waited too long, is poised to be one of the first bills signed by President Barack Obama" and "if enacted, it could present a new tool for workers to fight for higher pay, and an array of challenges for businesses." Michael Eastman, executive director of labor policy for the U.S. Chamber of Commerce said, "It will be more difficult for the employer to deal with the questionable claim." He added, "Right now, employers can more easily use the statute-of-limitations defense."

Oklahoman: Labor laws are early gift for trial lawyers. The Oklahoman (1/26) editorializes, "Two pieces of legislation speeding toward President Barack Obama's desk - one probably well-intentioned, the other wrong-headed - show the eagerness of Democrats to give an early gift to one of their key constituencies, America's trial lawyers." The Oklahoman says, "It's a potential bonanza for the trial bar. Imagine television ads - perhaps crowding out spots for personal injury cases or mesothelioma claims - by lawyers eager to pursue past discrimination claims. Imagine, too, the jury awards in the oldest cases, where claimants would argue a new violation occurred with each paycheck."

Employee Free Choice Act debate likely in new Congress. The Detroit Free Press (1/26, Gallagher) reports, "For labor unions, it's payback time" and "their vehicle is the Employee Free Choice Act, or EFCA" which "would make it easier to organize unions and force companies to submit to binding arbitration for first contracts with newly formed unions. Penalties for firing union backers would be significantly increased." However, "Corporations call the bill a budget buster and want it stopped. The debate is likely to be one of the first big battles in the new Congress."

Originally posted at InjuryBoard by Wayne Parsons

USA Today Malpractice Editorial Off the Mark

Christopher Nace — Mon, 29 Dec 2008 09:23:13 GMT

A recent editorial in USA Today suggests that physicians are forced to practice "defensive medicine" to head off lawsuits. The editorial suggests that lawyers are the only ones benefiting from the current civil justice system:

The liability system is too often a lottery. Excessive compensation is awarded to some patients and little or none to others. As much as 60% of awards are spent on attorneys, expert witnesses and administrative expenses.

The editorial is completely off the mark and shows, to be honest, an utter lack of understanding for the way a medical malpractice case weaves its way through the civil justice system.

Consider that in many states an expert report must be filed prior to or very early in the litigation process. That means that a physician expert--usually one board certified in the same specialty as the defendant physician--has reviewed the case and found it to be meritorious.

Once an expert certificate is filed, some states still require early mediation in some manner. What the USA Today piece fails to appreciate is that even in those clear cases of negligence, doctors and insurance companies refuse to settle cases. Many insurance companies have made the "business decision" that it is cheaper to litigate even meritorious cases with the hopes of a jury finding in their favor.

After early mediation or arbitration, the case then goes through the very expensive and time consuming discovery process. Plaintiffs often pay as much as $50,000 to get their case through discovery and ready for trial. That is simply expenses and doesn't include attorney time.

When a case does go to trial and a verdict is returned for a plaintiff, a judge has the ability to reduce any award the jury gives. Most states though prohibit a judge from raising a verdict. In many states, as in West Virginia, legislatures have capped damages than can be awarded.

The suggestion that lawsuits are forcing doctors to practice "defensive medicine" and thus raising the cost of health care simply chooses to point the finger for high health care costs at attorneys. It is surprising that USA Today would buy into the Chamber of Commerce's story hook, line and sinker.

Of course, there are two sides to every story:

The Institute of Medicine reports 98,000 people die every year from preventable medical errors, costing the nation $29 billion. Medical errors are the nation's sixth leading cause of death, killing more people annually than auto accidents or guns.

Moreover,

But doctors claim they are forced to run more tests to protect themselves from lawsuits, which leads to higher health care costs. This has been debunked. Studies from the Congressional Budget Office and Government Accountability Office have all cast doubts on the existence of defensive medicine, stating any savings from reducing it would be "very small." Doctors run more tests because it benefits patients, not because of liability concerns.

And that supposed influx of "frivolous" claims? A study from Harvard's School of Public Health found 97% of medical malpractice claims had merit, proving only those with real injuries seek any recourse.

It is expensive to litigate a medical malpractice case. But instead of focusing on the costs that must be spent so that those with meritorious claims (97% according to Harvard) can be compensated, USA Today suggests that lawsuits ought to be curbed to stop defensive medicine. Perhaps the real emphasis should be on stopping the medical errors that take near 100,000 lives a year.

Originally posted at InjuryBoard by Christopher Nace