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Domestic Worker Rights: Nannies, Babysitters, and Daycare Providers

By Peter Levine posted in Employment Law on August 29th, 2013

About one in five children are in the care of domestic workers

About one in five children are in the care of domestic workers such as nannies, babysitters or in-home daycare providers. Because the government has failed to provide and subsidize quality childcare, families often struggle to find the money for in-home care, leaving nannies vulnerable because they often miss out on fair wages, decent hours, and benefits. In a recent survey, the largest group of nannies, about 11 percent, reported earning $600 per week, which amounts to $31,200 a year. While hourly wages fluctuate by location, in many major cities that isn’t enough to live on.

Fair Labor Standards Act leaves many domestic workers unprotected

A 1974 amendment to the Fair Labor Standards Act extended coverage to domestic workers, but an overly broad reading of its exemptions has left many domestic workers unprotected. As a result, most have missed out on minimum wages, overtime pay, benefits, and protection from discrimination. The majority of families who employee nannies, although they mean well, don’t often pay into Social Security, provide any paid sick leave or vacation time, or offer overtime pay for extra hours worked. Without regulations, nannies are at their employers’ whim, without anywhere to turn in the event of harassment or discrimination. “Because there’s no industry standard, there’s no guideline for a conversation.” says Jennileen Joseph, a nanny and founder of a nonprofit for domestic workers called Massachusetts Association of Professional Nannies.

First law requiring time-and-a-half for overtime

But that may begin to change. New York just passed the first law requiring time-and-a-half for overtime, at least three vacation days a year and an eight-hour workday and forty-hour workweek for domestic workers. It also grants temporary disability benefits and provides redress for harassment and discrimination. Four other states-California, Illinois, Massachusetts and Colorado-are considering similar bills.

New York’s is a momentous victory for domestic workers, but it also has some parents concerned. While the New York bill doesn’t establish a per-hour minimum wage above the state’s minimum, families will be paying far more to keep nannies working past the forty-hour workweek if they need extra care. There will be no government subsidies for these extra costs, even though they are crucial to valuing the work nannies do. And some feel the government should be at least partially responsible for the high costs of paying domestic workers, especially as those costs increase to make the work up to par with living standards.

The use of credit checks and convictions in employment applications

By Peter Levine posted in Employment Law, Law on August 27th, 2013

Court OKs credit history and past convictions as employment criteria

The U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to secure employment when it dismissed a federal lawsuit brought by the federal Equal Employment Opportunity Commission (EEOC) against Freeman, a privately held event management company.

The lawsuit charges Freeman with violating Title VII of the Civil Rights Act. According to the EEOC, the employer’s hiring practice of performing detailed inquiries into applicant’s credit histories and criminal backgrounds amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Any applicant meeting any of 12 different categories of reported credit-unworthiness were excluded from certain positions.
The Freeman court joined a number of other employers praising what some consider a “common sense” practice of performing credit and criminal background checks. Supporters of this practice ignore studies demonstrating that credit problems do not predict employee performance, as well as studies documenting atrocious error rates on credit checks. A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors (that might impact credit scores) on their credit report.

In 2011, California limited the use of credit checks in employment. The law also established broad exceptions to the “prohibition” on employment-related credit checks, essentially blessing the use of credit checks across jobs and industries where the necessity had previously never been demonstrated.

Employment Application: Have you ever pleaded guilty to, or been convicted of, a criminal offense?

 

Freeman’s standard employment application form also asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?” Applicants were told certain convictions would not be considered in the hiring process. However, the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

These types of cases, often called “disparate impact” cases, stand or fall on the persuasiveness of the presented statistical evidence. In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, criticizing his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.”

These cases are being watched closely by consumer and civil rights advocates, who hope the EEOC’s oversight of these employment policies will reduce the use of background checks to screen out applicants. The decision nonetheless reinforces misconceptions and legal standards that are hostile to anyone applying to join the workforce.

Apple sued for unpaid wages and overtime compensation

By Peter Levine posted in Law, Unpaid Overtime on August 25th, 2013

Apple required off-the-clock security bag searches

Two former Apple Inc. retail employees have sued the tech giant for “millions of dollars” for unpaid wages and overtime compensation. They allege hourly employees had to wait in line and undergo off-the-clock security bag searches after they had clocked out.

Amanda Frlekin alleges when she clocked out for her uncompensated meal breaks and at the end of her shift, she waited for at least five to 10 minutes, without compensation, as other employees had their bags checked. In total this comes to about 50 minutes to 1.5 hours a week of unpaid overtime, totaling to about $1,500 in wages not paid over the course of a year.

The other plaintiff, Dean Pelle, is making similar claims about required bag inspections when he worked in Apple’s stores.

Like other retail employees, the company’s employee conduct manual specifies that all employees are subject to personal bag searches, and if refused employees, can be subject to termination.

Apple charged with California Labor Code violations

The plaintiffs allege by not compensating its retail workers for this waiting time, Apple has violated the Fair Labor Standards Act, as well as the California Labor Code for nonpayment of the minimum wage, overtime wages and wage statement penalties, in addition to the California Unfair Competition Law for “unlawful, unfair or fraudulent business act or practice,” and New York Labor Law for nonpayment of wages and unpaid overtime.

Yana Walton, communications director for the retail worker advocacy group, Retail Action Project, stated her organization has “secured back wages for hundreds of retail workers who have experienced wage theft” in New York City.

“Unfortunately, retail workers experience wage theft in many ways, and like employees at Forever 21 and Polo Ralph Lauren who filed similar suits, unpaid mandatory job functions are tantamount to wage theft,” she said.

A spokeswoman for Apple told ABC News that the company does not comment on pending litigation. The plaintiffs and their attorneys did not respond to ABC News’ requests for comment.

Frlekin and Pelle are hoping to expand their lawsuit into a class action that represents Apple retail employees over the past three years. Lawyers representing the plaintiffs are also hoping to represent retail employees in Apple’s California and New York stores for even longer periods, the Associated Press reported.

Employment Law: Privacy Violation in the Workplace

By Peter Levine posted in Employment Law on August 22nd, 2013

Personal Information on the Workplace Bulletin Board

Many of the basic rights we all take for granted are not protected when we go to work. Whenever a question arises about an employee’s right to privacy in the workplace it is critical to identify the employee rights that may be at stake. Because there are various workplace environments, each claim of privacy violation needs to be evaluated according to the actual and specific conditions of the workplace.

Such is the debate that is facing one such McDonald’s employee’s attorney.

A San Antonio McDonald’s employee, who is only being identified as “Anna,” was outraged to find her personal medical information had been posted to a workplace bulletin board in the back office of her store.

Anna told a local television station that she suffers from depression, anxiety, liver, and lung problems, and had received a doctor’s note authenticating her illnesses so that she could take a few hours off. Anna alleges that after handing the note over to her manager, the manager then proceeded to put the note up on the public employee bulletin board.

A Clear Violation of Her Privacy in the Workplace

“It just made me want to cry,” Anna said. “I didn’t want anyone to know … I really felt that they stepped into my personal space to basically let anybody know that I needed medical treatments.” Anna claims her manager’s actions were in clear violation of both her privacy and federal health laws.

Anna has consulted with an attorney and has filed a complaint with the Equal Employment Opportunity Commission. Justine Lisser, a spokeswoman for the EEOC, did not comment specifically on Anna’s case. She did, however, say it’s possible that Anna could be referring to the Americans with Disabilities Act. This Act protects employees or job applicants from unfavorable treatment due to disability. It also has a “very strong confidentiality provision,” Lisser said.

It’s also possible that Anna could be invoking the Genetic Information Nondiscrimination Act. This Act, among other things, prohibits employers from considering an individual’s genetic information when making decisions around hiring, firing, job placement or promotion.

At this point it is unclear if Anna’s employer did so.

Lisser noted that a large number of complaints received by the EEOC involve disabilities that are psychiatric in nature, including depression. In 2012, 402 charges with favorable outcomes or meritorious allegations involved depression, accounting for nearly 7 percent of all disability charges that year.

“Certainly, there is a stigma against some psychiatric illnesses that may not be present for other things,” Lisser said.
San Antonio McDonald’s Operator Celia Jairala declined discussing further details, but offered this statement: “McDonald’s has the utmost respect for our employees and their privacy.”

An employee’s rights can be violated in any number of ways. In this particular case, “Anna” took the best course of action. She consulted an attorney and filed a complaint with the appropriate government agency with employee and workplace rights.

City to pay former clerk $150,000 to dismiss whistleblower claim

By Scott posted in Employment Law on August 16th, 2013

Whistleblower claims can go to court whenever there is some sort of corruption suspected, and an employee is retaliated against in any way for reporting those believed to be illegal activities. This means that cities can be sued, as well as large corporations and even small individually owned businesses.

One city learned this first hand after a former city clerk filed a whistleblower lawsuit after reporting what she believed to be illegal activities that the mayor was partaking in.

According to the woman’s lawsuit, she was fired from her position in December of 2009 after she reported to the state’s department of law enforcement that the mayor was charging the city for personal expenses – like a cell phone bill and a trip – without reimbursing the city. In addition, the former clerk also discovered that the mayor was not being forced to pay certain utility bills, like his city cable or water.

After reporting these findings, she was fired, and the city’s mayor told the state’s department of law enforcement that the charges were honest mistakes.

An investigation into the charges also decided that he was not purposely attempting to charge the city for his own personal gains.

In the end, the city decided to settle with the former city clerk and will pay her $150,000 in exchange for her dropping the whistleblower lawsuit. According to sources, the settlement does not equate to the city of mayor admitting guilt in any way.

Cases like this former clerk’s happen all the time throughout the country, including in California. Luckily, employees do have rights, and if they suffer from any type of retaliation after reporting what they believe to be illegal activities, there are legal actions that can be taken against that place of employment.

Employment Lawyer Los Angeles – Peter K. Levine

Source: The Walton Sun, “City paying $150K to settle whistleblower lawsuit,” 7 March 2011

Despite Equal Pay Act, Women are Still Paid Less in California

By Scott posted in Discrimination on August 16th, 2013

Nearly half a century ago, women made great strides in advocating for equality and the Equal Pay Act was enacted with the goal of abolishing sex discrimination when establishing wages. Almost 50 years later, a wage gap continues to exist in California.

According to data collected by the United States Bureau of Labor Statistics and the Department of Labor, women who worked full time, a minimum of 35 hours per week, in 2009 were still paid 20 percent less than their male counterparts were. The average salary for women was $657 while men earned on average $819 per week.

While some women made much more than the average, gaps existed in each level of employment. Women who worked in management, held positions as chief executives, compliance officers and other positions of authority made 72.7 percent of what the men made in the same classification group.

Not only are women in similar jobs are paid overall less, but entire job sectors that are considered to be stereotypically suitable for women receive less compensation. Those jobs include teachers as well as the food preparation industry.

According to the data, sex discrimination continues to exist. In one study, researchers found that sex discrimination was not only exhibited by employers, but by customers as well. The research study was based upon customer satisfaction responses after observing a male and female “worker” who said the exact same words and made the exact same motions as one another in a video. The study found that 19 percent of customers gave the male a higher “satisfaction” rating.

Source: Around Dublin “Gender Wage Gap Still Exists in California” 1/6/11

Discrimination lawsuit filed against California nursing facility

By Scott posted in Discrimination on August 16th, 2013

A former kitchen worker at a California nursing facility has filed a lawsuit against her former employer claiming that Manor Care and its owners and operators failed to look into her complaints of race discrimination and sexual harassment, and even went as far as to encourage the degrading work environment. The woman also claims that other female workers were also forced to work in the hostile and offensive work environment.

According to the lawsuit, the former kitchen worker was employed by Manor Care in California from 1999 to 2010. During that time she was frequently harassed because she is Asian, and the kitchen manager supposedly allowed other male staff to sexually demean the female employees.

In addition she claims that at some points she was physically assaulted by other co-workers kicking food carts into her, and that some co-workers even went as far as to throw food at her. Other co-workers also supposedly degraded the woman with racial and ethnic slurs.

The lawsuit claims that the former employee did not speak up sooner about the discrimination and harassment because she was afraid of retaliation, but when her daughter did send an email to Manor Care complaining about the way her mother was being treated at work, the nursing facility retaliated by having the former employee work an extra two hours per week.

The lawsuit goes on to say that in August of 2010, the former employee ended up suffering from a panic attack while at work, but that Manor Care failed to provide any medical attention to her. A week later the women ended up resigning from the job she had for 11 years because of the working conditions she had been subjected to and the fact that the facility supposedly did nothing to deter the discrimination and harassment from happening.

The lawsuit is seeking an unspecified amount in punitive and economic damages, and claims that due to the harassment the woman suffered from anxiety, panic attacks, muscle spasms, digestive problems and depression.

Source: Reuters, “Former nursing home worker claims race, gender harassment,” Linda Coady, 9 may 2011

Driver awarded $1.5 million in California sexual harassment case

By Scott posted in Sexual Harassment on August 16th, 2013

A former truck driving trainee has won a $1.5 million judgment in a sexual harassment lawsuit filed against CRST Expedited and its parent company, CRST International. The 45-year-old who had worked out of the company’s California terminal claimed that she had been assigned to a driving trainer who had touched her inappropriately and made sexually suggestive comments, and that the company did nothing to deter the behavior.

According to the sexual harassment lawsuit, after a mandatory 28-day training session the woman trainee quit just one day after getting her first assignment. She said the emotional turmoil experienced during the training forced her leave and search for another line of work.

The court ruling, which included more than $1.1 million for punitive damages allowed under California’s Fair Employment and Housing Act, found the trucking company failed to prevent a hostile working environment by allowing the trainer to make verbal and physical sexual advances.

The chief executive officer of CRST International said the company plans to appeal.

This lawsuit was also not the first time that CRST Expedited has come under scrutiny for failing to protect female truck drivers from other male employees. Even just last year the Equal Employment Opportunity Commission had filed a class action lawsuit against the company for similar complaints, however, that case was dismissed due to the EEOC’s legal procedures that were used.

However, since then, another claim has also been filed against the trucking firm by a married couple who had wanted to work together as a team for CRST Expedited. The pair filed a complaint that a trainer had made improper sexual advances toward the wife, and had also used degrading Mexican-American racial slurs.

According to the couple, after the two complained about the behaviors, CRST Expedited retaliated and the two were given bad driving assignments and bad dispatch assistance, which caused them to drive off-route and cost them money out of their own pockets.

CRST Expedited has yet to respond to the claims made in that lawsuit.

Source: Business 360, “Female driver wins $1.5 million harassment judgment against CRST Expedited,” David DeWitte, 9 May 2011

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