Injuryboard Commentary - Workplace Discrimination

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

$40 Million Settlement with Walmart

Jon Lewis — Thu, 03 Dec 2009 11:27:19 GMT

How are Walmart's prices so cheap? Well, you can start by not paying your employees the proper amount of overtime under the wage and hour laws of our country. Add to that a lack of benefits, and you have the makings of low prices.

Walmart has settled a 2001 class action lawsuit brought by 87,000 current and past employees of the company in the Commonwealth of Massachusetts. These plaintiffs alleged that Walmart denied them overtime pay, refused to give them meal breaks, and manipulated the employees' time cards to their advantage.

We tend to place these companies on a pedestal. The more money they make, it seems like the more credibility we give them. Oh, that's Walmart. They could do no wrong. Who could believe these greedy little employees?

We listen to the media so much. We believe everything we see and hear. Well, I'm here to tell you that there are always two sides to every story. I will bet that when this lawsuit was brought in 2001, many people, if asked, would have said that it was frivolous. Well, Walmart doesn't pay $40 million for a frivolous claim. Walmart pays $40 million and enters into a confidentiality agreement because it doesn't want the public to know what it did.

Next time you hear a story about a lawsuit in the media, stop and think. Give both sides thought. You may not be given the whole truth by the media. You may not understand all of the ins and outs of the legal issues. This is why we have our legal system. This is why juries get to listen to ALL of the facts and ALL of the law. The media just gives you soundbites.

Originally posted at InjuryBoard by Jon Lewis

Doctor Wins Retaliation Lawsuit against Hospital

Beth Janicek — Tue, 01 Dec 2009 15:41:28 GMT

A radiation oncologist who previously worked for the University of Pittsburgh Cancer Institute won a potential $3 million verdict on charges that she was retaliated against for raising concerns about discrimination. The jury recommended that Dr. Kristina Gerszten be awarded $1.5 million in back pay and $827,292 in front pay from the University of Pittsburgh Cancer Institute. Those figures are only advisory, and it will be up to U.S. District Judge Arthur J. Schwab to determine the final amount the defendant will have to pay. In addition to back and front pay, the verdict includes an addition $200,000 in compensatory damages, as well as $300,000 in punitive damages.

Dr. Gerszten filed a federal lawsuit in September 2008 alleging that she had been discriminated against because of her gender and retaliated against for making the original complaint to hospital officials. The jury did not find any evidence of sex discrimination, but determined that she was retaliated against when the University of Pittsburgh Cancer Institute failed to hire her as a medical director at both UPMC St. Margaret and its facility in Natrona Heights.

Lawsuits against the employer for retaliatory discharge are often difficult cases. Employees who lose their job for the wrong reasons quickly discover that most laws are written against them. Fortunately, Dr Gerszten was able to hold the hospital accountable. We want to encourage people to report suspected wrongs such as discrimination without fear of repercussions.

Originally posted at InjuryBoard by Beth Janicek

Doctor Wins Suit Against Cancer Hospital for Sex Discrimination

David Mittleman — Tue, 01 Dec 2009 15:23:16 GMT

A former radiation oncologist at the University of Pittsburgh Cancer Institute won a potential $3 million verdict against the hospital in federal court on charges that her employer retaliated against her when she raised concerns over gender discrimination in the hiring process. Overall, the jury voted to award Dr. Kristina Gerszten $1.5 million in back pay and an additional $827,292 in front pay. However, the decision will ultimately be up to the U.S. District Judge, Arthur J. Schwab, to decide what the hospital will pay for its actions.

Dr. Gerszten originally filed charges in 2008 alleging that hospital officials at the University of Pittsburgh Cancer Institute purposefully passed over her and her female colleagues for promotions and prestigious positions in favor of less experienced male doctors. However, the jury failed to find any evidence of sex discrimination, but nevertheless awarded punitive damages for the hospital’s retaliation against her for originally filing the complaint.

After Dr. Gerszten filed the complaint, the news traveled to her superior, Dr. Dwight Heron, who was ultimately responsible for deciding on Dr. Gerszten’s promotions and contract renewals. The jury found that Dr. Heron retaliated against Dr. Gerszten by refusing to hire her as medical director at a sister hospital, the University of Pittsburgh Medical Center or the Cancer Center in Natrona Heights, as well as refusing to renew her contract as an oncologist for the hospital when it expired in 2007.

Originally posted at InjuryBoard by David Mittleman

Ruby Tuesday Sexual Harassment Suit Settles for $225,000

Camryn Hansen — Wed, 04 Nov 2009 22:04:52 GMT

The Ruby Tuesday restaurant in Stroudsburg, PA has agreed to pay a total of $225,000 to five female employees who were allegedly sexually harassed by their male supervisors.

The harassment included making crude sexual propositions to women, frequently making sexually explicit and graphic remarks to them about their appearance, and making lewd comments in their presence about female customers, the suit said. The EEOC said that some of the women harassed were teenagers.

"Sexual harassment is always unacceptable, but when some of the victims are vulnerable teenagers, it is especially unconscionable," EEOC Acting Chairman Stuart J. Ishimaru said in a released statement. –The Morning Call

The EEOC filed the lawsuit against Ruby Tuesday’s general manager, Christopher Mendoza, and other supervisors in August 2008. More than a dozen female employees were involved in the suit, but only five were ultimately paid in the settlement, in amounts ranging from $5,000 to $101,000.

In addition to the monetary settlement, Ruby Tuesday has promised to offer annual sexual harassment training to its Stroudsburg management team.

Having worked in numerous restaurants, I can readily vouch for the ubiquity of sexual harassment in every single one of them. It’s gratifying to see our legal system command meaningful consequences for such unprofessional behavior.

Originally posted at InjuryBoard by Camryn Hansen

Wal-Mart Wage & Hour Case Settled: "David" Trial Lawyers Achieve Justice Against "Goliath"

Mark Bello — Wed, 04 Nov 2009 12:33:07 GMT

Wage and Hour claims are, today, somewhat of a hot commodity in the legal process. These lawsuits were, to a large degree, trail blazed by an innovative attorney named Robert Bonsignore who sued retail giant Wal-Mart in a class action wage and hour claim, back in 2004. Bob's expensive bet has paid off, as a federal judge has approved a final settlement in the case. 39 class actions involving 3 million employees have been settled for $65 to $85 million. 135 plaintiff attorneys were involved in the settlement and will share a one-third attorney fee, which could be close to $30 million. By settling for this huge amount, it is apparent that Wal-Mart was guilty of the conduct alleged in the complaint: That the retail giant failed to compensate plaintiffs for off-the-clock work and overtime, denied employees rest breaks and falsified employee time records. Judge Phillip M. Pro summed up the bravery and diligence of the attorneys involved this way (in approving the attorney fee award):

"The Court finds that Class Counsel have achieved an exceptionally favorable result for the members of the Settlement Classes by diligently pursuing this complex litigation for years despite the substantial risk of no recovery."

Despite the huge undertaking and financial risks of this enormous case, Bob Bonsignore and others persevered, invested their own time and resources, and achieved justice for their clients. This is a flashy, huge dollar, case. It is highly publicized. In America today, thousands of plaintiff attorneys do exactly what Bob did in this case. With less publicity and on a much smaller scale, thousands of brave attorneys assist millions of injured and/or disabled citizens. These brave attorneys handle these cases advancing their own money, often pursuing justice for years before obtaining a result. They charge no fee unless the case resolves successfully; if the case is unsuccessful, they not only receive no fee, but they usually have no method of recovering the money that they advanced on behalf of their clients.

Plaintiff attorneys, also known as trial lawyers, pursue justice, every day, in the hope that a positive result will be achieved for their clients. In contrast, a defense attorney represents corporate interests or insurance companies, receives his fees, hourly, from billion dollar companies. Personal injury litigation is truly a "David vs. Goliath" legal battle. Today, as was true in the bible story, David scored a big victory and justice was served. Lawsuit Financial, a pro-justice lawsuit funding company, congratulates Robert Bonsignore, all of his co-counsel, and all of the plaintiffs wronged by Wal-Mart. Hopefully, this billion dollar wrong-doing company has learned its lesson. If not, future litigation, by the best and brightest attorneys, risking their careers and their finances, will, hopefully, teach them another. After all, this is what plaintiff attorneys are all about.

Originally posted at InjuryBoard by Mark Bello

Important New Age Discrimination Legislation

Jeff Winters — Mon, 26 Oct 2009 21:27:14 GMT

Important New Age Discrimination Legislation

As we continue to struggle with a stalled economy, the statistics continue to demonstrate that age discrimination is a growing issue for both working mature workers and those seeking to find their next job. An AARP survey announced last year found that 60 percent of those surveyed aged 45 to 74 said that they had personally faced or observed age discrimination in the workplace. There were 24,582 age discrimination cases received by the EEOC (The Federal Equal Opportunity Employment Commission) in Fiscal year 2008. In that same year, 21,415 were resolved providing $82.8 in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

Last June, in the case of Jack Gross v. FBL Financial Services, Inc. the Supreme Court in a 5-4 decision, stated that older workers bringing employment discrimination claims must meet a higher standard to prove their claims of illegal bias than others who have been subject to unfair discrimination at work, such as discrimination based on race or sex.

In response to what we believe to be an unfortunate and misguided court decision, Senator Tom Harkin, Chairman of the Senate Health, Education, Labor and Pensions Committee, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, along with Representative George Miller Chairman of the House Education and Labor Committee have introduced companion bills to restore the rights of mature workers. AARP Executive Vice President Nancy LeaMond said. “Their bill will protect older workers from being relegated to second class status when they try to vindicate their rights under the ADEA. Unless Congress passes this bill, too many older workers who have been victims of arbitrary age discrimination will be denied their day in court.”

We at Our ExperienceCounts.com strongly support this important legislation that reinstates mature workers rights under the (ADEA) The Age Discrimination in Employment Act of 1967. We recommend that you contact both your district representative and your two senators and let them know that this bill is one that should receive their vote.

Jeff Winters is the founder and CEO of OurExperienceCounts.com, the online community dedicated to providing the tools and support necessary for mature, experienced workers to extend their careers or make a career transition.

Originally posted at InjuryBoard by Jeff Winters

Wisniewski Lawsuit will Continue after her Death in Fire

Paul Napoli — Thu, 22 Oct 2009 12:12:49 GMT

While there is some doubt in the minds of the public and Bianca Kuros’s friends and family as to whether the fire that took her life was suspicious or not there is no doubt that the lawsuit she filed in July will continue on.

Bianca Kuros filed a lawsuit for $20 million dollars in July 2009 under her maiden name of Wisniewski. This claim involved harassment at her place of work. She was claiming that she was propositioned, groped, and subjected to lewd comments at her place of employment (270 Park Ave. construction site). Her complaints about this harassment eventually led to the loss of her job. Where a male employee replaced her.

This case was very much in its early days, though already having sparked a lot of curiosity. Two days before a first hearing (court conference) Bianca Kuros died in a fire at her home in Queens. It is understood that although Kuros herself would not need to have appeared at this hearing it would have been dealing with potential evidence. Since her death this hearing has now been postponed until November 3.

Wisniewski’s lawyer, Steven Witels, points out that the family has a right to pursue the complaints made and expects that someone, probably a family member will take over in seeing the lawsuit through.

Wisniewskis case has been seen as an interesting one by many. A Polish immigrant who was left widowed worked hard to obtain her Safety credentials. She was seen as being very good at her job and held the position of Safety coordinator at the construction site owned by JP Morgan Chase. Her $20 million dollar claim is against JP Morgan Chase, Total Safety Consulting (her employers) a male worker on the site, and others.

Bianca (Wisniewski) Kuros was seen by many to be a great role model of what women can achieve. Her family and friends are devastated by her death and some believe it is suspicious in its timing. Her boyfriend Bogdan Balumut hopes that the fire will be investigated closely.

While initial reports came in stating the fire was being treated as ‘suspicious’ it seems that is no longer the case. The fire is still under investigation but at this point is being seen as ‘not suspicious’. There have been reports of Bianca receiving troublesome calls shortly before the night of the fire, which started shortly after 3:00 am. The two-alarm blaze was apparently halted in its spreading by cement and steel flooring and structures in the building. Initially firefighters went to the wrong address and this delay may have cost Wisniewski her life. Her 16 year old daughter Olivia was hospitalized along with two males in their 50’s. Bianca’s eldest daughter Nicole (aged 18) was not at home at the time of the fire.

Wisniewski’s lawyer says she was an incredible woman who certainly didn’t deserve any of this. While the fire itself continues to be investigated the sexual harassment lawsuit will continue on regardless of its findings.

Originally posted at InjuryBoard by Paul Napoli

Department of Labor States Drug Reps are Entitled to Overtime

Zev Antell — Fri, 16 Oct 2009 10:48:53 GMT

The issue of whether Pharmaceutical Sales Representatives ("Drug Reps" as they are sometimes called) are entitled to overtime has been bouncing around and dividing the Federal Courts for several years. However, just yesterday the United States Department of Labor ("DOL") came out and affirmatively stated that Drug Reps are entitled to overtime compensation. In a current suit against drugmaker Novartis, the DOL issued an Amicus, or Friend of Court, brief stating that Drug Reps are non-exempt under the FLSA's Outside Sales Exemption and its Administrative Exemption. This a huge victory for Drug Reps seeking overtime compensation because the Federal Courts often defer to the DOL for proper interpretation of the FLSA. This means that Drug Reps who have previously been denied overtime could be entitled to millions of dollars in unpaid overtime compensation. In fact, it is not a stretch to think that other types of medical products representative may be entitled to overtime as well, provided they do no actual selling.

Originally posted at InjuryBoard by Zev Antell

Am I Protected From Age Discrimination?

Jeff Winters — Mon, 05 Oct 2009 11:32:22 GMT

Am I Protected From Age Discrimination?

Posted by JEFF WINTERS. OurExperienceCounts.com

Last year there were 24,582 age discrimination cases received by the EEOC (The Federal Equal Opportunity Employment Commission). The Age Discrimination in Employment Act of 1967 (ADEA) protects workers who are 40 and older from employment discrimination based on age. These protections apply to both employees and job applicants. It is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

The law actually permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the normal operation of the business.

The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

The answer to the question regarding your protection is yes, but age discrimination remains a serious problem for older workers.

Jeff winters is the founder and CEO of OurExpecienceCounts.com, "The Community for the Mature Job Seeker."

Originally posted at InjuryBoard by Jeff Winters