LegalMatch: Employment Law

Just How Common is Sexual Orientation Discrimination?

2009-11-13T14:34:51-08:00

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

2009-11-04T13:48:59-08:00

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??

2009-10-02T16:28:05-07:00

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.

LegalMatch Reports Startling Rise in Employment-Related Legal Disputes

2008-12-12T15:04:00-08:00

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?

2008-05-16T16:39:15-07:00

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