LegalMatch: Employment Law

LegalMatch Reports Startling Rise in Employment-Related Legal Disputes

As the number of unemployed Americans skyrocketed to a 26-year high during the first week of December 2008, LegalMatch reported a sharp rise in employment-related cases posted when comparing data with the same period in 2006 and 2007.

LegalMatch has seen wrongful termination cases and employment discrimination issues each rise a sharp 35 percent. Also showing a marked jump are wage and overtime disputes at 25 percent, and pension and benefits at disputes bumping up 16 percent; all numbers indicating a clear trend in rising employee dissatisfaction with the current business climate.

The September 2008 financial services crash has lead businesses to slash jobs and search for more cost-saving measures.  LegalMatch has seen an increase in cases posted that coincides with the National Bureau of Economic Report’s recent announcement that the United States has been in a recession since December 2007.   

Insiders speculate the sharp rise in employee-related LegalMatch cases may be attributed to a reluctance to incur legal fees and opting out of seeking legal advice regarding their employees.  However, experts red flag this approach.  “In an era where consumer information is robust, now is not the time to underestimate an employee’s knowledge of their rights,” says Anna Ostrovsky, chairperson and general counsel for LegalMatch.

One San Francisco human resources consultant who represents start-up companies has noticed that since the crisis began, more companies have been “cleaning house” under the pretext of layoffs and occasionally misclassifying employees to avoid wage, overtime and benefits costs.

Jason T. Brown, managing partner at Blau, Brown & Leonard, LLC, says his firm is also seeing more cases. "In an economic downturn, employees are likely to consult with an attorney regarding their rights, and a sharp firm will examine the prospect of litigation from a very broad prism.”  Brown also says that he and his firm field individual employee charges, and oftentimes they don’t seem actionable. But upon further scrutiny, he finds that the employees have been exploited under a section of the labor code such as the FLSA or their States Wage & Hour code and that issue is ripe to handle as a class action.

“Employees in California are just as educated as employers.  If they are being misclassified, they know it. Employors are often in denial until they get hit with a claim,” says Vikita Poindexter, SPHR, an independent human resources director and owner of Poindexter Consulting Group in Temecula.  Poindexter reports that her business, which focuses on compliance and mediation for small and mid-sized businesses, has also spiked.

More information about Employment Discrimination Lawyers can be found in the LegalMatch Law Library.

Little Rock Police Getting Overtime Pay to Undress?

Little Rock police have enlisted legal assistance in a recent battle to get overtime pay for getting undressed.

The Arkansas-based police argue that the process of donning and doffing their uniforms—which includes a weighty, bullet-resistant vest—takes upwards of 60 minutes each day, and that the extra hour should be compensated with overtime pay. The suit currently in effect also seeks back pay for the past three years, claiming that the State failed to comply with the Fair Labor Standards Act (FLSA).

The FLSA requires that all employers provide overtime pay to hourly employees that work over 40 hours per week. Any time exceeding those initial 40 hours is then overtime, which is paid at 1.5 times the employee’s normal rate of pay. For example, a person working 43 hours per week at $20/hour would make $800 for the first 40 hours of work and $90 for the three hours of overtime (which are paid at a the overtime pay rate of $30/hour).

Firemen, policemen, and other government employees are, however, subject to special rules, and are not always fully protected by the FLSA. And this exception to wages and overtime pay will probably be the point around which the Little Rock case pivots.

 

Are there any employees that are not protected by the Fair Labor Standards Act?

Yes. There are several categories of workers that are not legally required to receive overtime pay or FLSA benefits. These include employees who:

• Work on commission, like salespeople
• Earn at least $27.60/hour as computer professionals
• Work for a car dealership as salesmen, mechanics, or partsmen
• Work on a farm
• Are salaried, like white collar professionals
• Work as drivers, driver’s helpers, loaders, or mechanics

However, if you are an hourly employee and believe that you have been denied your right to overtime pay, you should contact a wage lawyer and discuss your options for winning back pay for the duration of your employment.

 

By Kate Beall

Wrongful termination.

The fear of being fired, canned, outsourced, or laid off is one that many workers tend to have in common. And termination is a fact of corporate life. People are fired every day for incompetence, for making mistakes, for slacking off or running late, and most of those firings are legally just. But there are also terminations that are not just—those are the ones we refer to as “wrongful terminations.”

Wrongful termination is divided into several categories:

• Discrimination,
• Retaliation,
• Contractual Employees,
• Illegal Acts,
• Family or Medical Leave, and
• Failure to Follow Established Termination Procedures

Complex?

Certainly. Which is why you can follow the “wrongful termination” link above for more detailed information. But let’s focus first on the issues brought up by the Social Security Disability Advocates Blog. Discrimination, our first category in the wrongful termination department, not only protects citizens from termination based on race or sex, but also extends a protective shield against age-based lay-offs. So, if you feel like you’ve been “let go” specifically because of your age, filing a wrongful termination claim might be a wise move.

In fact, one of the things that SS Advocates mentions is how easy it is to find a lawyer online. If you’re reading this, you’re probably already aware that LegalMatch provides free online legal matching. But SS Advocates also suggests searching for blogs or websites created by people who have dealt with legal issues similar to your own, and asking them who they went to when they needed help. 

Not a bad idea!  :)

by Kate Beall

Non-Compete Clauses in Employment Contracts.

You were just offered a sparkling, six-figure salary from a top-100 business. The position is a posh one—benefits, 401ks, and stock options have been thrown at you from all directions, and it’s just a matter of choosing the best gems in the jewel box. But there’s a catch. Your saving grace, the business with the golden employment package, is in direct competition with your current employer.

Do you remember signing that non-compete clause?

If you look at most employment contracts, you’re very likely to run into a non-compete agreement or non-compete clause. These is a part of your contract that forbids you from working for your employer’s direct competitors for a specific period of time—usually several years. Take a look at your own contract and see if you are restricted from doing any of the following:

• Working for your employer’s direct competitors
• Working in a specific, competitive industry or business
• Working in a particular geographic area

If any of those “no’s” come up in your contract, you’ve probably signed a convenant not to compete.

Luckily, most non-compete clauses are nothing to worry about. The law requires all of those kinds of agreements to be reasonable, which means that an employer can’t monopolize your life by making too many restrictions. In fact, if the non-compete you signed is unreasonable, a court won’t enforce it at all.

 

What makes a non-compete clause unreasonable?

• Time: A restrictive period that lasts too long.
• Geography: A geographic restriction that is too large.
• Industry: Forbidding work for too broad a range of businesses.
• Interest: When there’s no legitimate interest in enforcing the non-compete.

So maybe you wouldn’t be able to take that glamorous job from your deep-pocketed competitor, but you aren’t going to be blacklisted from your industry either. But be wary, because there is an exception to your protection from unreasonable non-competes! If you accept and receive compensation in exchange for your agreement with a particular non-compete, the court is very likely to rule in favor of your employer.

Think a moment before you pick up your pen, and have an employment lawyer go over any employment contracts you plan to sign. Make your job work for you.

Need help understanding the details of your contract?  Post a thread with the text in question on our Employment and Labor Law Forum, and you should receive a helpful answer.

by Kate Beall

$5.85M Awarded to Ex-Fresno State Coach Under Title IX Law.

Last week Lindy Vivas, a former volleyball coach for Fresno State, won $5.85 million in damages in a gender discrimination suit against the school.

Vivas was fired in 2004 after expressing the opinion that female athletes at Fresno State should have equal treatment and access to school facilities. The University’s claim that the former coach failed to meet performance goals did not acknowledge that, merely two years prior, she had led her team to the best season in its history.

According to the San Francisco Examiner, this may be the largest award “ever granted to a coach suing for retaliation under Title IX.”

 

What does Title IX mean for women?

The Title IX law is a federal law that was first put in place to abolish gender and sex discrimination in public schools, and is primarily used as a shield against programs that prioritize male success over that of their female counterparts. The establishment of this law followed a period where men were given preferred or exclusive access to academic and athletic resources.

As of today, we have just passed the 35^th Anniversary of the Title IX law's implementation, and the benefits are in the numbers. In an article titled “Title IX turns 35, yet hasn’t reached it’s prime,” The Seattle Times reports that since the Title IX law's inception:

“[…] Women's participation in college sports has jumped from 30,000 to 170,000, and, in high-school sports, from 300,000 to 3 million. Female athletes earn higher grade-point averages and report higher self-esteem than their nonathletic classmates. […] Increased physical activity also translates into a reduced risk of several life-threatening diseases, including breast cancer, obesity and cardiovascular disease.”

But even with numerous benefits at hand, women’s athletic programs are still struggling to recruit and support their female students. The article at hand notes that while almost 25% of Americans are aware of a recent situation in which female athletes were treated unfairly, 60% of that group wouldn’t know how to take legal action to amend it.

 

Take Action.

If you are aware of a violation of Title IX law, you can take action immediately by consulting with a gender and sex discrimination lawyer. Remember that, like Lindy Vivas, you are protected from wrongful termination by your employer—retaliatory termination is illegal under Civil Rights law.

Title VII of the Civil Rights Act further protects employees from discrimination on the basis of race, sex (including pregnancy and childbirth), religion, and national origin.

by Kate Beall