Category Archives: employment law

Offices Closed for Labor Day on Friday, Monday

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Labor Day

Please be safe, and have a happy Labor Day weekend.

The firm’s offices will be closed on Friday, Aug. 29, and Monday, Sept. 1, for the Labor Day holiday. We will be open on Tuesday, Sept. 2, at 8:30 a.m. 

May your 2014 Labor Day celebration be thoughtful, fun and safe. Here’s a past blog post that I wrote about Labor Day, and the main points remain much more poignant, as 2014 is an election year, and as I’ve been writing in recent blog posts, workers, whether injured or not, are greatly affected by those who are elected. Because keep in mind that many workers’ protections are being eroded by business in pursuit of profit, and nonunionized workers generally fare worse than those who belong to unions.

So as you go about your business – whether marching in a Labor Day parade, traveling safely through the last weekend of summer, enjoying quiet time at home, or even providing for your family by working – think about your life situation and reflect on those workers who have gone before to provide a better quality of life for workers today, regardless of individual job situation. I know I will do just that.

Happy Labor Day! What are your plans? And why do we have this day off of work? Is it to celebrate summer ending and school starting? In Nebraska, it might be to celebrate what is often the first weekend of Husker football and the last weekend of the State Fair.

But are there other reasons? Just like the origins of workers’ compensation, we can attribute the fact that we have a holiday to the American worker.

Labor Day – the first Monday in September – celebrates the contributions workers have made to the strength, prosperity, and well-being of America,” according to www.usa.gov.

Sources explain in varying amounts of detail the controversy over who founded Labor Day and how the “workingmen’s holiday” was celebrated on that day. But what isn’t up for debate is that unions and their workers were a very important part of developing Labor Day to celebrate workers’ contributions.

I am pleased to share that the state of Nebraska was actually one of the first to celebrate Labor Day and had passed legislation recognizing the holiday by 1890. Other states that were Labor Day pioneers included Oregon, Colorado, Massachusetts, New Jersey, New York, Connecticut, and Pennsylvania.

There are some romantic notions about how Labor Day came into being, and some sources even gloss over some of the gritty details, but Continue reading

Don’t Believe the Hype About Employment Law

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“Don’t Believe the Hype” when it comes to employment law.

This admonition was spurred by a misleading article and headline that I was e-mailed by Watchdog.org recently. The article was meant to spur outrage that a teacher who was alleged to have been drunk on the job but was allowed to get unemployment benefits in Iowa.

To Watchdog.org’s credit, they did include a copy of the actual decision. Just like in Nebraska, Iowa puts the burden of proof on an employer to prove wrongful termination. The district in exurban Des Moines never sent a representative to the hearing. The school district did not follow Iowa law in testing the teacher for drugs and alcohol. Neb. Rev. Stat. 1901-1910 lays out similar requirements under Nebraska law. Few people point out that if this teacher was such a bad employee, then maybe the school district could have spent a few hours proving their case or that they should have followed clear rules about drug and alcohol testing.

But of course, most people never get beyond the headline or the sound bite. The goal is to gin up outrage among “just regular folks” about people “milking the system” in order to get them to elect officials who will promote “personal responsibility” and “accountability.” Responsibility and accountability never seem to apply to management the same way they apply to employees.

Ginning up outrage about drunken teachers distracts from the war against workers and their allies in Nebraska and in Iowa and across the country. Fortunately, places like Iowa and Nebraska still have decent laws for employees and also have advocates who are willing and able to stand up for those laws. Regular folks in Iowa need to look at who is really trying to harm their interests on the job, and act accordingly in November. The same goes for those of us on the western bank of the Missouri River. This fall, Iowans and Nebraskans need to look beneath the carefully constructed, “regular guy” images of Terry Branstad and Pete Ricketts, and find out where they really stand, and vote accordingly.

Discrimination: Municipal Human-Rights Commissions Another Option for Charges

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When a prospective client calls in with a potential employment discrimination question, one of the questions I always ask is, “What city or town do you work in?” The reason I ask this question is because many larger cities in the states where we practice, such as Omaha, Lincoln and Des Moines, have separate municipal fair-employment acts that cover more employees than are covered under state or federal law.

State and federal fair-employment statutes generally need at least 15 or 20 employees for an employer to be covered by those laws. However, in Des Moines and Lincoln, an employer only needs to have four employees to be covered under those cities’ human-rights ordinances. In Omaha, an employer only needs six employees to be covered by their fair-employment ordinance.

Also, the City of Omaha explicitly covers sexual orientation under the fair-employment ordinance. Sexual-orientation discrimination is not explicitly prohibited by Nebraska or federal law. It is my belief that sexual-orientation discrimination is a form of sex discrimination that is already covered under Title VII and the Nebraska Fair Employment Practices Act. However, my opinions as to what I think the law is and what the law is are two different matters. If you are an Omaha resident who feels you were discriminated against because of your sexual orientation, you would be much more certain to have your claim of discrimination heard on the merits by pursuing a claim under the Omaha Human Rights Ordinance. While I would be willing to filing a sexual-orientation discrimination case under Nebraska law, any potential clients need to know that such a case would be a test case, and as such, this case would be under tremendous scrutiny from judges.

The drawback to filing discrimination cases under the Lincoln and Omaha municipal ordinances is that there is less opportunity for monetary award if you are successful in winning your case than you would have under state or federal law. However, some remedy for your discrimination is better than no remedy for your discrimination.

Can I Get Fired For Filing Bankruptcy?

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Low and middle income people are the last people to benefit from any economic recovery. For many economic recovery means a return to work the opportunity to put their household finances in order with steady income provided by a job. Unfortunately unpaid debts often mean that employees get garnished  or even having to file bankruptcy.

Congress intended for bankruptcy to allow for people to get a fresh start so they prohibited discrimination based on bankruptcy and even let employees sue employers for such discrimination. But this law is not as strong as other laws prohibiting discrimination on factors such as race or sex for two reasons.

First of all, your status as a debtor in bankruptcy must by the sole cause of job loss. Discrimination is difficult enough to prove already under either a motivating factor or proximate cause standardsole cause is more exacting than even the difficult proximate cause standard. If your employer has any other legitimate reason to fire you besides your bankruptcy, then a court will likely find the termination was lawful. The only way for an employee to preserve any type of discrimination case is not to give the employee a reason to terminate them because of their poor performance , attendance or poor attitude. But even good employees can get fired legitimate reasons such as restructuring and economic reasons.

Secondly most courts do not believe that bankruptcy discrimination prohibits employers from failing to hire employees based on bankruptcy.

Title VII and most state anti-discrimination laws state that a failure to hire based on certain protected categories is unlawful activity.

Finally in any discrimination claim, the employer needs to be aware of your protected status. In a bankruptcy discrimination case this means that your employer had to have known about your bankruptcy status prior to firing you. Some employees get fired because  employer doesn’t want to deal with a garnishment.  Most people, me included, think that such an action is wrong or unfair. But unless your employer knows that garnishment is linked to your bankruptcy status, then firing you based on that garnishment is legal  – unless the garnishment is a cover or pre-text for another unlawful reason.

I would encourage anyone reading this post to contact their U.S. Senator or Congressperson and ask them to change the bankruptcy discrimination statute to mirror other federal anti-discrimination laws such as Title VII.

Do I Have a Wrongful Termination Claim?

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wrongful termination claimAssuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.

You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.

Essentially, not all terminations are unlawful. But if your situation fits into the categories described above, then be sure to contact an experienced employment attorney. In addition, it is wise to ask for advice about applying for unemployment, even if there’s not a wrongful termination case.

Has Online Filing Added to OSHA Whistleblower Backlog?

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OSHA’s recent decision to allow employees to file whistleblower cases online has led to a large increase in filings and has added more delay to claims that were already backlogged before online filing. According to OSHA investigators, this increase in filings hasn’t been met with a proportionate increase in staff. One investigator estimated it takes over 400 days for OSHA to conclude investigating claims.

The delay created by the backlog hurts investigations for many reasons. Witnesses become unavailable, and recollections of events change. Unscrupulous employers also can use the delay to hide or destroy documents and intimidate witnesses.

Of course, employees who feel they have been retaliated against oftentimes have the option of filing a state or local fair employment agency claim on the basis of retaliation. Employees might also have the option of filing for retaliatory discharge without filing a fair-employment claim, as is oftentimes the case if they are fired for filing workers’ compensation. However, this summer the U.S. Supreme Court likely made many types of retaliation cases more difficult to win with their decision in the Nasser case. The court ruled in Nasser that employees claiming retaliation cases under federal Title VII must prove that exercising their rights under Title VII was a “but for” cause of their termination.

But under whistleblower laws under OSHA – such as the Surface Transportation Assistance Act (STAA), which protects interstate truckers, and Dodd-Frank, which protects workers in the financial services industry – an employee must only show that their report of illegal conduct was a contributing factor to their termination.

Employees with a retaliation case should consult with an experienced employment attorney to determine the best forum for any wrongful-termination case.

I Got Fired for Refusing to Work on Christmas. Is that Legal?

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At-will employees are usually at the mercy of their employer. This is often painfully apparent during the holidays when employees are forced to work on Christmas. But since Christmas is a religious holiday, employees can invoke federal and state anti-discrimination laws under certain circumstances in order to celebrate Christmas. Here are the two steps to avoid being fired for celebrating Christmas:

  1. Your religious belief must be bona fide.
  2. Your employer must know about your religious belief.

However, you can still get fired for not working on Christmas if your employer can show that they had an undue burden in accommodating your request for time off to celebrate Christmas. Notice and accommodation go hand-in-hand. An employee will have a difficult time trying to show religious discrimination if they tell their boss on Dec. 23 that they can’t work their scheduled shift on Christmas Eve.

Letting a boss know well ahead of time about the need for leave on Christmas or any other religious holiday is the best thing an employee can do in order to practice their religious beliefs while maintaining their employment.

What Both Sides Miss in the ‘Duck Dynasty’ Debate

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Duck DynastyComments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual.

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case