Tag Archives: discrimination

Indefinite suspensions are employer ghosting

Posted on December 6, 2018 by Jon Rehm

True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

The NEOC Is Slow To Investigate Claims, Here Are Some Alternatives For Employees Dealing With Discrimination On The Job

Posted on May 21, 2018 by Jon Rehm

The Nebraska Equal Opportunity Commission (NEOC) is taking at least upwards of 7 ½ months to assign investigators in employment discrimination cases. In practical terms, this means that discrimination charges wait months before they are investigated, and claimants can wait for over a year for those investigations to conclude from the time they file a charge.

So what is going on and why does it matter? What can employees who believe they were discriminated against on the job do to prosecute cases in the meantime?

Delays at the NEOC

Currently the NEOC is experiencing staffing shortages. Nebraska Governor Pete Ricketts has instituted a state employee hiring freeze and that freeze appears to have impacted the NEOC. A renewed attention to sexual harassment from the #MeToo movement may also be increasing discrimination claims.

What’s the advantage of filing a charge with the NEOC?

In 13 years of representing employees, I believe the primary benefit to filing a charge with the NEOC is to have investigator build a case file. I may quibble with methods or conclusions of the investigations, but the investigations often uncover solid evidence that can be used in later in litigation.

The NEOC is also somewhat helpful in conciliating or settling charges short of trial. There is nothing wrong a prompt resolution of claim that provides closure, certainty and compensation for a wronged employee.

When employees have to wait at least 7-8 months to even have an investigator assigned, wronged employees have to wait for those benefits and, in my opinion, that delay diminishes those benefits that come from filing a charge with the NEOC.

Alternatives to NEOC: OHHR and the LCHR

Employees who work in Omaha or Lincoln, can file charges with Omaha Human Rights and Relations Commission and Lincoln Commission on Human Rights (I have been an LCHR Commissioner since 2014) OHHR and LCHR investigate charges much faster than the NEOC.

At the February meeting of the LCHR three employment discrimination claims were voted on by the Commission. Those claims were filed roughly 60-90 days before the hearing. OHHR aims to process charges within 100-120 days of filing.

OHHR and LCHR investigators are as good as NEOC investigators and are effective at settling or conciliating claims. OHHR and LCHR also investigate smaller employees that the NEOC can’t. The OHHR also expressly investigates sexual orientation claims while the NEOC would have to shoehorn such an investigation into a “sex-plus” framework.

Why you might not need to file a discrimination charge at all

Nebraska allows employees to file discrimination and retaliation cases directly in state court under Neb. Rev. Stat. 20-148 if they are filed within 300 days of the last act of discrimination. Employees don’t need to file an administrative charge of discrimination with the NEOC, EEOC or any other agency.

There are lots of fair employment laws that don’t require filing a charge with a government agency to file suit. This includes all wage and hour laws, including the Equal Pay Act. Employees also do not need to file a discrimination charge in order to bring a common law retaliation case. Finally, African-Americans do not need to file a discrimination charge to bring an action under 42 USC 1981.

What to do if your claim is stuck at the NEOC

Nebraska law allows an employee to request a “right to sue” letter at any point during the NEOC process. If you jointly file a charge with the EEOC, you can request a right to sue letter on a federal charge after 180 days from filing.

Watch out in disability discrimination cases

Due to recent court decisions in Nebraska about the definition of disability, it is probably prudent for employees in Nebraska to bring charges of disability discrimination under both state and federal law which often times means filing a charge with NEOC and EEOC. The NEOC usually jointly files discrimination charges under state and federal law.

Conclusion

I don’t like writing “pitchy” posts, but because of the backlog at the NEOC, if you feel you have been discriminated or retaliated against on the job in Nebraska, call an experienced employment attorney before you call the NEOC. Bluntly, you may not have a case and you may be making the NEOCs backlog worse by filing a weak claim. But even if you don’t have a strong discrimination claim you can still get advice about a severance agreement, help on an unemployment claim or find out that maybe you have a workers’ compensation or wage and hour claim.

If you do have a strong claim, you may not need to file a charge with the NEOC or file a discrimination charge at all in order to pursue your rights in court.

This Is How Americans Spent Their Money in the 1950s

Posted on February 1, 2016 by Emily Wray Stander

Today’s post is an article that was shared by Tomasz Stasiuk, a Colorado lawyer, and comes from www.wisebread.com

Every once in a while, this blog gives a person a chance to take a step back and think about both personal priorities and philosophies and what is happening in the larger society and how those trends affect workers and their loved ones in the big picture. This blog post is one of those moments.

Were we, as persons, or we as a society better off “way back when”? As can be seen in the article below, I think it depends on whose “way back when” we’re focusing on.

There were definitely some positives from the article for many: buying power comes to mind. But it is possible that the negatives for others, such as society-sanctioned racial discrimination and limiting women to certain roles, outweigh the perceived positives. In fact, entire books, such as “The Way We Never Were: American Families and the Nostalgia Trap” are devoted to these issues.

I wish the article below explored worker safety in the decade of the 1950s, too, as I hope, being an idealist, that it has improved overall, both for society and individuals, since then. However, I was very glad to see salary information, as that definitely affects workers and their families or loved ones.

Though at first glance an “average yearly income” of “$3,210 in 1950” and $5,010 in 1959” seems small for a household, it was a different era regarding buying power.

I really do appreciate that prices from the 1950s are translated to today’s dollars, so you can see how both buying power was different and the evolution of consumer culture happened. This includes focusing on housing, autos, televisions, spare time, and discretionary spending.

The biggest takeaway I got from this article was both how much things have changed and also how they sometimes stay the same (and how for some, remembering the good is the only part of an experience they recall).

Society and individuals have a ways to go in eliminating discrimination, focusing on women workers, and improving worker safety. But it is fascinating that a consumer today would mostly understand “how Americans spent their money in the post-war 1950s.”

“That’s because the spending habits we consider normal were born in the post-war 1950s. Prior to that decade, few households could boast discretionary spending, and before television, there were not as many large-scale outlets that allowed advertisers to tempt consumers into unnecessary spending.

“We may no longer consider a 983 square foot house or a car with a rusted-through hole in the floor to be normal, but our expectations for spending discretionary income remain mostly the same.”

So is your household or family unit better off than you would have been “way back when”? And what will productivity, progress and success look like for a worker and family unit or loved ones in 50 years?

Only time will tell.

Americans tend to think of the 1950s as an idyllic time when the babies were booming, the jobs were plentiful, and the country was flourishing.

Our parents and grandparents had good reason to feel prosperous. The average yearly income rose from $3,210 in 1950 to $5,010 in 1959, and post-war Americans were enjoying access to products and services that were scarce during World War II. Finding good uses for disposable income in the 1950s began the American love affair with consumerism. That love affair that continues to this day — although our spending priorities may have changed somewhat over the years.

Here’s how Americans spent their money in the post-war 1950s, and how their spending habits compare to ours in the 2010s.

White Picket Fences

The American dream of owning a home has deep roots the 1950s. Not only were many of the 16 million returning WWII veterans looking to buy homes, but the GI Bill offered them liberal home loans, and the end of the war saw the beginning of the baby boom, all of which drove demand for affordable houses.

Large homebuilders met that demand. They began applying assembly-line methodology to home building — by using panelized construction and drywall rather than wet plaster — which allowed them to create “cookie cutter” tract housing, giving birth to the modern suburb. An amazing “three out of five families became homeowners, and suburban living became a national phenomenon.”

There was a dark side to this housing…

[Click here to see the rest of this post]

Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

Posted on January 18, 2016 by Jon Rehm

Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent.

Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent?

Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
If possible, contact an employment attorney in your area before you decide to take action: Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.

Pregnant Workers Should Get Workers’ Compensation If They Have a Claim

Posted on January 4, 2016 by Todd Bennett and Jon Rehm

A new law went into effect during 2015 in Nebraska that requires employers of 15 or more employees to accommodate pregnant workers on the job. This is a significant change that affects working women by expanding workplace protections for those who become pregnant.

Nebraska’s protections for pregnant employees go beyond even the standards for pregnancy discrimination under federal law. The new law also protects women with post-childbirth medical conditions and women who choose to breastfeed or pump.

This law means that pregnant women in Nebraska will be able stay on the job longer and will have an easier time returning to work.

This accommodation includes obtaining “equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breastfeeding or expressing breastmilk.” Nebraska Revised Statute 48-1102 (11)

These changes outlaw discrimination against a pregnant woman with respect to hiring, advancement, discharge, training and other terms, conditions and privileges of employment. These protections extend to a pregnant employee before, during and after a pregnancy.

Unfortunately, pregnancy doesn’t mean that women can avoid work injuries, especially in female-dominated fields like nursing and human-services support. Sometimes employers and/or insurers will attempt to use the excuse that since an employee is going to be out because of pregnancy that they do not have to pay temporary disability benefits to an injured worker who is suffering from a work injury.

But when an occupational or work injury and a non-occupational injury, combine to cause disability, employers still have to pay those disability benefits. Nebraska’s new law on pregnancy doesn’t change that fact. If anything, smart and ethical employers will attempt to accommodate injured pregnant employees in legitimate light-duty jobs so they do not have to pay disability benefits.

In addition, when a pregnant employee is injured on the job and is receiving workers’ compensation benefits and later is ordered by her physician not to perform certain work activities or is in need of bed rest due to the pregnancy, an injured and pregnant employee’s workers’ compensation benefits cannot be reduced or suspended on account of the pregnancy in both Nebraska and Iowa.

However, not all employers and workers’ compensation insurance carriers understand or follow the law. If you are injured and not receiving workers’ compensation benefits because your employer says that they could accommodate your job but for you being pregnant, you need to call a firm that handles both discrimination and workers’ compensation law. You should also call an employment lawyer if you are pregnant and being forced to take unpaid leave rather than having your job duties modified or changed.

Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

Posted on November 5, 2015 by Jon Rehm

Advertisement from the McCook, Nebraska, newspaper via Michael Schwanke’s Facebook page

KWCH (Wichita, Kansas) television reporter Michael Schwanke posted a help-wanted ad from a McCook, Nebraska, auto-glass shop on his Facebook page that has gone viral on social media and brings up some basic truths about employment law. Here is the meme:

The overarching theme here is that regular and reliable attendance and a good attitude are essential job functions for this particular job, as they are for most jobs. Do some of these requirements seem unlawful? Maybe on their face, but they probably aren’t when you do the analysis. Here are few that might raise red flags and why they probably aren’t illegal.

“Have no baby sitter every day” Yes, it is illegal to discriminate on the basis of being a parent. However, most jobs require reliable and regular attendance. Sure, problems with child care can be reasonably expected, but if it becomes a pattern and it disrupts work, then it is a legitimate reason for termination.

“Have court often” There is a move to limit the use of criminal background checks in order to help ex-felons get hired, so maybe this looks bad. But again, “have court often” means that you are currently involved with the court system. If current legal issues keep you away from work too often, that could be a reason for termination. I believe that criminal background checks in employment often disproportionately affect minorities. However, barring any expression of animus against a particular race or nationality, the desire to not have your employees miss work often because of court appearances is a legitimate concern of a business owner.

“Oversleep” Sometimes medical conditions and the side effects of medications can make it difficult to wake up. Assuming your employer is covered by disability-discrimination laws, a situation like that would be covered. But again, if your job actually requires you to be present and working at a certain time and you can’t reliably meet that requirement, then your employer has a reason to fire you.

A review of the comments on the Facebook posting showed that most of the commenters were sympathetic with the employer. Regardless of what I think about those comments as an employee advocate, people with those types of attitudes and feelings are going to be the ultimate deciders of whether an employer wrongfully terminated or otherwise violated the rights of a client of mine. So if you are terminated for a reason you think was wrong or otherwise mistreated by an employer, make sure that you did your best to fulfill your duties as an employee – especially in regards to attendance.

How Gays and Lesbians Can Protect Their Civil Rights in the Workplace, Part 1

Posted on July 27, 2015 by Jon Rehm

The recent Supreme Court decision legalizing same-sex marriage marks a major expansion of civil rights in this country. The decision will also give some additional legal protections to gay, lesbian and transgender individuals in the workplace. In the wake of the decision, the Equal Employment Opportunity Commission ruled that sexual orientation is covered by federal anti-discrimination laws. So what do these developments mean, and how can gay and lesbian individuals protect their newly won civil rights?

What does the EEOC ruling mean to gays and lesbians in the workplace?

The EEOC ruling means that the EEOC will investigate charges of sexual-orientation discrimination. This is important because filing a charge with the EEOC or a fair-employment agency is a requirement for filing a lawsuit. To file with the EEOC, an employee must file within 180 days of the last act of discrimination. They may have longer if a state or local law recognizes that type of discrimination and has a longer time for filing. In a state like Nebraska, where sexual orientation isn’t recognized by our anti-discrimination laws, it is a much safer route to file with the EEOC within 180 days. Check with your state or local equal-opportunity commission to see if they will also file your charge with the EEOC, even if they don’t recognize sexual orientation as a class. Again, beware of deadlines. Nebraska normally allows 300 days for a charge of discrimination, but it is safer to assume you only have 180 days to file a charge based on sexual orientation. Remember that filing a charge means that an investigator has written out your charge and that you have signed and notarized the charge. This takes time, so if you want to file a discrimination charge, you need to move quickly.

What does the same-sex marriage decision mean for gays and lesbians in the workplace?

The decision should grant anti-discrimination protections in the workplace to gays and lesbians in same-sex marriages based on the family status under Title VII and likely under similar state and local laws. The decision doesn’t change the fact that many federal courts hold that discrimination against gay, lesbian and transgender individuals is a form of unlawful sex discrimination. If your sexual-orientation discrimination decision involves your marital status, be sure to add that into your charge. If you are past the 180-day EEOC deadline, you may be able to still meet a longer state deadline. The same could also be said of filing a sexual-orientation discrimination complaint as a sex- or gender-discrimination complaint.

What the Supreme Court and EEOC decisions don’t mean

Ultimately gays, lesbians and transgender individuals will only get the full protections of anti-discrimination laws in the workplace when either courts and or legislative bodies explicitly expand those protections to them. The Obergefell decision didn’t do that. The EEOC doesn’t make law, and its interpretations of the law aren’t binding like those of a court decision. Furthermore, federal courts are giving increasingly less deference to the opinions of agencies like the EEOC and increasingly willing to second guess how the EEOC operates. Unless you live in the District of Columbia or one of the 22 states, such as Iowa, or a city such as Omaha that prohibit sexual orientation discrimination in the workplace, then your road to the courthouse in a discrimination claim is unclear. However, in states like Nebraska that don’t explicitly ban sexual-orientation discrimination under state law, the road to workplace justice for gays and lesbians has gotten easier in the last few weeks.

In addition, the Equality Act was recently introduced in Congress. “The law, whose language was provided to the Advocate, would amend the 1964 Civil Rights Act and other federal law to protect LGBT people from discrimination in employment, housing, public accommodations and other arenas,” according to an article in Politico.

Workers' Compensation Watch

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Tag Archives: discrimination

Indefinite suspensions are employer ghosting

The NEOC Is Slow To Investigate Claims, Here Are Some Alternatives For Employees Dealing With Discrimination On The Job

This Is How Americans Spent Their Money in the 1950s

White Picket Fences

Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

Pregnant Workers Should Get Workers’ Compensation If They Have a Claim

Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

How Gays and Lesbians Can Protect Their Civil Rights in the Workplace, Part 1

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White Picket Fences

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