LegalMatch: Employment Law

FINALLY! Unemployment Rate Down 10%

Good new for job seekers! Recent statistics reveal that the unemployment rate has dropped 10%, which is the best showing since December 2007.  I don’t need to tell everyone the abc’s of the recession or how or why we got to the point of having such a high rate of joblessness in America.  What is promising about this figure is that we are crawling our way out of the recession.  Maybe.

         

The industries most affected by the recession include: construction, real estate, gamming, fashion, and goods and services.   One fact that the 10% decline hides is that when people don’t look for jobs, they are not factored into the figure.  So those job seekers that are upset about fruitless searches and need a break are still unemployed, they just aren’t unemployed for the purpose of the study. 

 

Though a positive swing in numbers, there is still a long way to go.  A recent LegalMatch study revealed an overall increase in unemployment benefit inquiries.  That basically means that people are still struggling to find employment in this market and are forced to rely on the weekly income provided by their state unemployment insurance plan. 

 

One study noted that the average unemployed individual that finds himself out of work remains jobless for 28.5 weeks.  I find that figure to be depressing.  I have many friends who have been laid off within the past year and I have seen the struggles that go along with job hunting.  Nevertheless, it is important to remain optimistic and explore fields that are hiring.   

 

Hopefully the unemployment rate will continue to go down and the struggling industries will be able to get out of their slumps.  Maybe a holiday spending spree will be the stimulus the economy needs???

Facebook Can Lead To The Denial Of Insurance Benefits

It’s no hyperbole to say that technology has changed the way we live.  Everything is a lot easier now because of it.  Email ensures that we can send messages to other people in mere seconds.  Lives have been extended because of advances in medical technology.  DNA analysis allows the criminal justice system to be more accurate in its convictions.  The list goes on and on. 

 

But like all great things, there are always disadvantages.  Take Facebook for example; it’s a ridiculously addictive time-killer that keeps us connected to our friends and family while at the same time draining our society of countless work hours.  Well, you can now add tattletale to the list of ways in which Facebook can ruin your life.

 

The negative effects of social media websites is not a new thing and this certainly is not the first time Facebook has been accused of being the catalyst responsible for destroying a person’s life.  But as far as I can tell this is the first instance I’ve heard of in which Facebook has been used by an insurance company as the basis for the denial of benefits. 

 

This case is especially important because the woman, Nathalie Blanchard, whose benefits were denied, claimed she suffered from depression and therefore was granted long-term sick leave to deal with her issues.  The problem was that photo updates of her on Facebook showed her out having fun all over town. 

 

Why is that important you ask?  Well because she was essentially using Facebook for its exact purpose, to update her friends and family on what she’s been up to, which presents (or rather reinforces) the particularly frightening scenario that even the most mundane and common acts on Facebook can spell trouble given the right situation.  Moreover, the same can easily be said about all social media websites in general.

 

While this is discussion on the pros and cons of Facebook and social media is interesting and all, you guys out there may be wondering what place it has on a law blog; particularly what legal recourse may be available to Blanchard?  Well, I’ll tell you, quit nagging me, damn… 

 

As far as I can tell, the best bet she, or anyone in her situation, has is the good ol’ argument of the implied covenant of good faith and fair dealing, which is inherent in all contracts.  For those of you who were too lazy to click on that last link, the covenant basically ensures that those entering into any contract must make a good faith effort to adhere to all the terms laid out by the contract.  This means not only performing your part of the deal, but also not doing anything that would make it so that the other party can’t perform their end of the deal or anything in general that would make the contract impossible to fulfill. 

 

The classic law school example is making a contract to clean your room when your clock shows a particular time, and then breaking your clock so that it can never reach that time, thereby making the contract impossible to perform.  This covenant is especially important in insurance cases due to the accepted opinion that insurance carriers are assumed to be in a better bargaining position than their clients, and as far as I know, courts have always primarily used the covenant in insurance cases.

 

So how does it apply to Blanchard’s case?  Well, it would require that her agent make a full inquiry into whether the Facebook photos of her having fun were really indicative of her having recovered from her depression.  Blanchard makes a good argument that she was simply trying to feel better by going out; that being outside doesn’t necessarily equal to her depression being cured.  By invoking the covenant, she could argue that her agent didn’t do a substantive enough inquiry since the agent seemingly based her denial on only one factor according to the article: her Facebook photos, thereby breaking the covenant. 

 

I think a court would most likely agree with her argument and force the insurance company to get more concrete evidence to support their denial. 

 

But then again, this case is from Canada and I’m not sure how the court system works over there.  Who knows, maybe they’ll rule in the insurance company’s favor and then order Blanchard to ride a moose to work every day (I love Canada, please no letters). 

 

Anyway, the second moral of this story (it seems) is to also pay attention to what jurisdiction you’re in.

Just How Common is Sexual Orientation Discrimination?

According to recent LegalMatch case data, sexual orientation discrimination is not as common as one might expect, but more common than anyone would like.

 

Based on our case data from the last 12 months, it appears that approximately 5% of the discrimination claims with which prospective clients approach our member attorneys involve discrimination based on sexual orientation.

 

While all employment discrimination based on immutable characteristics (such as race, gender, national origin, and, arguably, sexual orientation) irrelevant to a person’s ability to do a job is frowned upon by society and the law, the law on specific types of discrimination varies.

 

While the federal government and almost every state in the U.S. have laws that prohibit discrimination in employment on the bases of race, color, religion, sex, and national origin, the federal government has no law banning private discrimination based on sexual orientation. 32 states have some form of protection against employment discrimination based on sexual orientation. However, about half of those states only prohibit discrimination by public employers, leaving private entities free to engage in sexual orientation discrimination.

 

What does this data mean? Well, on the plus side for members of the LGBT community, it appears that reported cases of discrimination based on sexual orientation are relatively rare. On the other hand, it means that there are many other forms of discrimination occurring, if sexual orientation discrimination makes up such a small percentage.

 

Furthermore, it highlights the fact that a significant population of the U.S. live in states with no protection against sexual orientation discrimination. Unless a federal law addressing the issue is passed (which appears somewhat likely in the near future), or every state passes a law on the issue (far less likely), the situation should remain this way for quite some time.

 

While social attitudes toward LGBT rights are changing, and generally becoming more favorable, the fact that such discrimination continues to exist shows that we have a long way to go.

Let’s Talk About Sex... In the Workplace

Sex.  It’s everywhere.  The one place it should not be is in the workplace.  But from Bill Clinton to the more recent David Letterman scandal, it is evident that sexual encounters in the workplace happen.  Nevertheless when consensual sex turns into non-consensual sexual harassment there is a problem for everyone. 

 

Sexual Harassment at the workplace is a major point of concern, and not surprisingly, an area of litigation that is ripe with cases. The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature…when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.”  Some conduct that is considered sexual harassment includes: direct sexual conduct by employer, Quid pro quo (an employer is also prohibited from negotiating the terms of employment in exchange for sexual conduct), hostile work environment, and harassment based on failure to conform to the typical male of female stereotypes.  Although the majority of these instances involve females, the number of sexual harassment cases filed by men has doubled over the last fifteen years. 

 

In a recent study conducted by LegalMatch, the majority of inquiries into legal services were made after the individual had reported the incident to their supervisor or human resources department of their company.  I find that statistic to be very alarming because it means that the harassment continued even after the individual was reprimanded, or that the company did not take the complaint seriously enough.  Although there are state laws, federal laws, and usually company rules aimed at protecting men and women against sexual harassment there is still very valid concerns that they may lose their job or some other type of retaliatory action will be taken against them.  Often a sexual harassment claim comes down to proof and credibility and unfortunately false sexual harassment claims exist as well.

 

One article reported a startling figure: Sexual harassment costs a typical Fortune 500 company $6.7 million per year in absenteeism, low productivity and employee turnover. And this figure does not include additional high costs associated with litigation. 

The bottom line is that people need to respect professional and personal boundaries and employers also need to ensure that they are creating and maintaining a working environment that is safe for everyone. 

Lying On Your Resume Turns Off Employers. Really??

In the immortal words of Chris Rock, people lie all the time (though according to him, there's some debate as to whether it's men or the finer gender that does it more often). To most people, lawyers are some of the most notorious practitioners of this pastime, but I think they're just getting a bad rap. Sure a lot of lawyers can often stretch the truth, usually to the benefit of both them and their client(s), but so does everyone else. Whether it's using that old student ID to get a discount at the movie or telling your date that you are a doctor and not the guy who walks around Chuck E. Cheese in a rat costume, lying is just a part of life.

So is it really a surprise that people lie on their resumes? No, in that according to a recent survey only 18 percent of job seekers do so. Specifically, 18 percent lie about their skill sets and 7 percent lie about past job experience, but who's counting? I know, I know, I am…

What's even more surprising, at least to me anyway, is that employers are actually turned off by it. I would think it's almost expected at this point. I mean, take a look at your resume. Chances are it's not totally truthful. Are you really a world-class tennis player? I am because I'm amazing and also very employable. *Wink Wink*  But you're probably not because you're not an innovator or as great of a team leader as I am.

Haha, just kidding O great LegalMatch employer gods! I'm your ever-faithful disciple, as long as you continue signing my checks.

Anyway, apparently lying on your resume can really turn an employer off. Seriously, it does make sense. You probably wouldn't want to hire someone who is dishonest regardless of the task they're handling, right? The article above gives some handy tips on what not to fib about on your resume, such as saying you speaking languages that you don't or lying about your job title.

Being caught in a lie by someone you know is really embarrassing, which is all the more reason why you don't want to be put in that same situation with some person you just met whom you're trying to solicit employment from. Talk about wanting to a crawl in a hole and die.

Similarly, though to some it may sound counterintuitive to want hire a lawyer who doesn't lie, it really is quite important. You may think that a deceitful attorney will be better able to represent you in a legal action; however that's really not the case. Take a step back and think about it. Though it might be true that an attorney who lies would likely be willing to forge documents or do other unethical things in your favor, it's probably also likely that the same lawyer would also lie about what he or she is doing (or more likely, not doing) to representing you.

So remember, don't lie on your resume, and make sure the company you keep does the same.