Friday, October 9, 2009

Do I Have a Claim? - Pregnancy Discrimination

The following is a typical employment law related question. An employee asks whether her employer can cut her hours because she is pregnant. She adds that the employer is encouraging others to say that she is not doing her job. She also asserts that the workplace has become hostile since management learned about her pregnancy. Given this atmosphere, the employee wonders if she has a claim against her employer.

Congress amended Title VII of the Civil Rights Act by passing the Pregnancy Discrimination Act to protect women who experience discrimination because of pregnancy, childbirth, or other related conditions. In the above, scenario, the employee has a potential claim(s) if she can show that her employer changed the terms and conditions of her employment based on her pregnancy. Discrimination is always hard to prove because the employee has to show intent on the part of her employer. In a situation such as this, the employee should consult with an employment attorney to determine the next course of action.

Wednesday, June 3, 2009

Employers Need to Be Familiar With FLSA

Almost a year ago, the Tampa Bay Business Journal released an article entitled "Law Firms Troll for Complaints Among Disgruntled Workers." The article discussed the Fair Labor Standards Act or FLSA and how it creates a "minefield of gotchas" for businesses that are downsizing because of the economy.

Employers need to heed the warning in the last paragraph of the article which states "Very well-intentioned employers get taken to the cleaners sooner or later. It is not enough to be fair and generous. You have to be in compliance with the law." (See link to article here: FLSA).

This observation highlights the difference between wage and hour law and discrimination law. In discrimination law, ultimately the employee has to show that the employer intended to disriminate against him or her. With the FLSA, an employer may be held liable for an innocent mistake.

Monday, June 1, 2009

Tampa Bay Labor and Employment Attorneys in the News

Recently the St. Petersburg Times released an article discussing how out of work employees are turning to the courts for relief in light of recent lay-offs. (See link: Some Former Employees Turn to Lawyers to Pursue Claims of Illegal Firing). In the article, the St. Pete Times obtained quotes from some very good attorneys from both the employee side and the management side (for some reason the Times missed me, but I won’t hold that against them).

Most of the points made in the article are very similar to information that I share with clients and potential clients. For instance, the St. Pete Times noted that the Tampa Office of the EEOC (“Equal Employment Opportunity Commission”) has doubled its work load over the last year. Thus, where they were overworked in a normal economic situation, in light of this recession, they are stretched beyond the breaking point.

I have to admit, I gained a new line from the article - i.e., "It's literally true that your boss can fire you because he's a Red Sox fan and doesn't like your Rays cap."

The article highlighted two situations in which out of work employees sought the assistance of a labor and employment attorney. In one case, the employee who was over forty was told that her position was being eliminated. She accepted the bad news, however, she later learned that her position was given to a younger employee who was willing to accept a lower salary. Among other things, this case presents issues that would be covered under the Age Discrimination in Employment Act.

In the other case, a woman was released and expected to receive a severance package that was proportional to the years of service with her former company. The company decided that it would give her a severance package, but said sorry it will not be as much as expected. Her attorney told the Times that he is trying to work out a settlement with the company (I am not sure I would have shared that information with the press). The attorneys for the company had no comment.

There are a couple of lessons from the Times article. Employees concerned about the circumstances of there termination should consult with a labor and employment attorney to determine whether they have a claim. Businesses may try to use the bad economy as a pretext for an illegal termination.

Likewise, before terminating an employee, employers should make sure they do not leave themselves vulnerable to an employment lawsuit. Seeking the guidance of a labor and employment attorney will go a long way toward helping an employer minimize the risk.

To have specific labor and employment questions answered, please do not hesitate to call me, Rich Bradford at (813) 413-2402.

Tuesday, May 26, 2009

Employment Decisions by Judge Sonia Sotomayor, President Obama’s Nominee to US Supreme Court

On Tuesday, May 26, 2009, President Obama nominated Judge Sonia Sotomayor to the U.S. Supreme Court. Judge Sotomayor presently serves on the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut, and Vermont. She was appointed to the Second Circuit by President Clinton in 1997 and prior to that she was appointed to the U.S. District Court for the Southern District of New York by President George H. W. Bush in 1992.

The following is a list of employment cases by Judge Sotomayor, that was posted on the blog entitled Jottings by an Employer’s Lawyer (thank you Michael Fox):

1. Singh v. City of New York, 524 F.3d 361 (2nd Cir. 4/29/08) - An FLSA case where the Court affirmed a district court opinion denying a claim for commuting time. There is a discussion of de minimis time. Relying on 2nd Circuit precedent that requires three factors to be considered: "(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis." Although it is not always a winner for the employer, this time it was.

2. Rolon v. Henneman, 517 F.3d 140 (2nd Cir. 2/25/08). Affirmed a finding that a police chief had absolute immunity for his testimony in a disciplinary proceeding even if it was perjury.

3. Moore v. Consolidated Edison Co., 409 F. 3d 506 (6/2/05) - Affirmed denial of a temporary injunction in a case brought by a terminated employee.

4. Clarett v. National Football League, 369 F.3d 124 (2nd Cir. 5/24/04). Reversed a district court holding that would have allowed Ohio State football player Maurice Clarett to enter the NFL draft early.

5. Williams v. R.H. Donnelley Corp., 368 F.3d 123 (2nd Cir 2004). Affirmed district court summary judgment in discrimination case.

6. EEOC v. J.B. Hunt Transport, Inc., 331 F.3d 69 (2nd Cir. 2/5/03). Dissented to the upholding of a summary judgment for a defendant in an ADA perceived as case.

7. Higgins v. Metro-North R.R. Co., 318 F.3d 422 (2nd Cir. 1/28/03). Concurred in upholding an FELA summary judgment motion for the defendant employer. She would have applied a different test from the majority, but reached the same result.

8. Brown v. Parkchester South Condominiums, 287 F.3d 58 (4/12/02). Reversed a district court dismissal of a discrimination claim and remanded for an evidentiary hearing on whether or not the filing deadline should be equitably tolled.

9. Martens v. Thomann, 273 F.3d 159 (2nd Cir. 11/20/01). Appeal in a class action case sorting out a number of procedural issues, including a motion to reassign the case to a different district judge which was denied.

10. Leventhal v. Knapek, 266 F.3d 64 (2nd Cir. 9/26/01). Upheld summary judgment ruling against a government employee's claim that his privacy rights were violated during a search of his computer.

11. Raniola v. Bratton, 243 F.3d 610 (2nd Cir. 3/19/01). Reversed a trial court's grant of a judgment as a matter of law in a discrimination case.

12. White v. White Rose Food, 237 F.3d 174 (2nd Cir. 1/10/01). Reversed a trial court's ruling against an employer after a bench trial in a §301 case.

13. Parker v. Columbia Pictures Industries, 204 F.3d 326 (1/28/00). Reversed trial court's summary judgment for employer in ADA case.

14. Cruz v. Coach Stores, 202 F.3d 560 (1/20/00). Reversed summary judgment for employer on harassment claim, but affirmed summary judgment for discrimination and retaliation claims.

15. Neilson v. Colgate-Palmolive Co. , 199 F.3d 642 (2nd Cir. 12/2/99). Dissented from opinion affirming a trial court's appointment of a guardian ad litem and approving settlement of case. Would have found trial court did not give due process before appointing guardian ad litem.

16. Norville v. Staten Island University Hospital, 196 F.3d 89 (11/2/99). Affirmed summary judgment for employer on race and age claims, but reversed jury verdict in favor of employer on ADA claim because court improperly charged jury on that issue.

Monday, April 20, 2009

Timing Between Harassment Complaints and Termination Insufficient to Maintain Claim of Retaliation

Although the employee made valid internal complaints of harassment, the court found that her subsequent termination did not support her legal claims of sexual harassment or retaliation under Title VII.

Betty Pinkerton had performance problems while working for the Colorado Department of Transportation work resulting in a number of meetings with management. Her performance continued to suffer while she worked for a new supervisor named David Martinez. To avoid termination, Pinkerton agreed to a transfer. Close to the same time that Pinkerton faced termination connected with her performance problems, she claimed that Martinez directed sexual comments towards her. While the Department investigated Pinkerton’s claims, Pinkerton decided to remain in her position. The Department resumed its disciplinary action against Pinkerton and terminated her employment for poor performance. At the conclusion of the sexual harassment investigation, the Department decided to demote Martinez.

Pinkerton sued the Department for sexual harassment and retaliation. The trial court entered summary judgment in favor of the Department. On appeal, the Tenth Circuit affirmed the entry of summary judgment.

Regarding the harassment claims, the appellate court found that the Department had taken prompt remedial action after learning about Pinkerton’s allegations harassment. The court also found that any allegedly biased reports from Martinez did not affect the Department’s decision to fire Pinkerton.

On Pinkerton’s retaliation claim, the court found that she lost her job for poor performance, not complaining about harassment. The court found that the Department’s reason was not a pretext for retaliation because the Department had placed the termination proceedings on hold when Pinkerton initially decided to accept the transfer. When Pinkerton changed her mind about the transfer, the Department resumed the termination proceedings.

There are lessons for both employers and employees in this case. Employers, make sure that you have well-written anti-harassment policies. Also, when complaints of harassment come to the surface, be sure to launch thorough investigations. Pinkerton's retaliation claim presented a serious problem for the employer. Dealing with a problem employee who happens to raise claims of harassment is a difficult situation. Before taking disciplinary action, you need to consult with your employment counsel.

Employee, if you are subject to harassment in the workplace, take a look at your company's policy and follow it. Complaining to a friend will not help you. If you are confronted with disciplinary action following the presentation of claims of harassment, you need to consult with an attorney to determine whether your rights have been violated.

See: Pinkerton v. Colorado Dept. of Transp., (10th Cir. Apr. 16, 2009)

Saturday, April 18, 2009


This is to welcome you to my Labor and Employment Law Blog. Several months ago I started a blog, but the focus dealt with faith related matters instead of work. Rather than combining faith issues and employment law in the same forum, I decided to launch this blog dealing with employment law.

Some people ask, what is employment law. In a nutshell, employment law involves legal issues surrounding the employment relationship.

The following information provides a good overview of what employment law is all about:

· Wage and Hour-Employers are required to fairly compensate employees for time worked; this includes overtime pay for hourly employees who work over 40 hours in a week and providing wages that at least meet the minimum wage. If you have not received adequate pay for time worked, or have not received legally mandated time off for breaks, you may be able to take legal action against your employer.

· Sexual Harassment-Employees have a right to work in an environment free from harassment. Sexual harassment can come in the form of sexual jokes or innuendos, unwanted sexual advances, inappropriate touching, and sexual favors in exchange for promotions or other job benefits. Employers must make sure they provide employees with a safe work environment. If you have been the victim of sexual harassment in the workplace by a superior or fellow employee, an employment law attorney can tell you what kind of legal recourse may be available to you.

· Discrimination-Discrimination takes place whenever someone is not given a job, promotion or raise based on the color of their skin, age, national origin, religion, or sex. When job performance and experience are not the sole criteria for career advancement, discrimination may have taken place. If you suspect your employer of discriminatory hiring practices, contact an employment law attorney.

· Whistleblowing-Whistleblowers are people who alert the authorities to the illegal or unethical practices of their employer. Oftentimes, whistleblowers lose their jobs or suffer other serious consequences for taking action against their employer. Such retaliatory action from an employer is generally prohibited in most cases of Whistleblowing. If you believe your employer is participating in illegal activity, it is important to speak with an employment law lawyer to make sure your rights are protected.

· Wrongful Dismissal-Wrongful dismissal occurs when a person loses his or her job in a way that breaches the terms of his or her contract. This area of law can be tricky, so it is important to have an attorney on your side who understands employment law at both the state and federal level.

If you have a problem in the areas of Labor and Employment Law, do not hesitate to call me, Rich Bradford, at Bradford & Bradford, (813) 413-2402.