Keys to Using FMLA

When you have a medical condition that requires you to leave work for a while, it can be a scary proposition. Will you lose your job? Do they have to let you come back? How will you pay the bills? What about health insurance? These concerns and more are addressed by the Family Medical Leave Act (FMLA), a federal law designed to protect many American workers and their rights when they get sick or have to leave work temporarily. If the law applies to you, then you can take up to 12 weeks of unpaid leave.  Here are the keys to using FMLA.

Does FMLA Apply to Me?

Not all employers and employees qualify under federal law. To be eligible, the following must apply in order for the employer to be covered:

• Applies to public agencies (federal, state, local, etc.)
• Applies to public schools
• Applies to private employers with at least 50 employees who work at least 20 weeks during this year or last

The following must apply to the employee:

• Must work for a covered employer (see above)
• Must have been employed for at least 12 months (for at least 1,250 hours during that year), prior to actually going on FMLA leave
• Must work at a location where there are at least 50 employees (at the same location or within 75 miles thereof)

What Can FMLA be Used for?

The idea of FMLA is to allow a sick or injured worker to take time to get better before coming back to work. This may include:

• Serious medical conditions that make it impossible for you to work
• You have to care for an immediate family member who has a serious condition
• Having a baby
• Adopting a child
• Other “qualifying exigencies” (these can include a host of unusual situations, such as a spouse being called to Active Duty in the military)

How do I Prove I Need FMLA?

Some people worry they will have to give their employer medical records to prove their condition. This is not necessary. If your employer needs proof, it will provide you with a Department of Labor approved form to allow your health care provider to certify your medical leave.  See the attached link: https://www.dol.gov/whd/forms/WH-380-E.pdf (for your own serious health condition, or https://www.dol.gov/whd/forms/WH-380-F.pdf (for a family member’s serious health condition)

How to Take FMLA

First, your employer can require you to use all applicable paid vacation, personal time, or sick leave that you have accrued before FMLA will kick in. Keep in mind, FMLA is unpaid leave. You are not paid while out on FMLA.  That said, there is nothing that says you can not work or earn income of some sort while you are out. If the condition that triggered your FMLA no longer exists, then your employer can require you to return, and your absences could be  counted against you.

Where to Turn for Help

If you have been refused FMLA, you may have a claim for compensation. Some employers lie or mislead employees to think they are not eligible to keep their jobs after having a baby or recovering from a surgery, when in truth, the employer is legally required under FMLA to allow the employee to take up to 12 weeks of unpaid leave.

Some employers terminate employees for using FMLA, but state a false reason for the termination to cover for the illegal behavior.

If either of these events happens to you, then you may be entitled to compensation. Give Fonteneau & Arnold, LLC a call to learn more about your rights.

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Five Industries with the Most Sexual Harassment Claims

Not surprisingly, some industries and jobs see a higher number of sexual harassment claims. While one may immediately think of jobs like the military, law enforcement, or other male-dominated workplaces, according to recent reports by the Equal Employment Opportunity Commission (EEOC), the following are the five industries with the most annual claims for sexual harassment. According to EEOC data, about 30% of all complaints brought before the commission are based on sex or gender discrimination.

Hospitality

Vox reports that data from the EEOC shows about 14% of claims were brought by members of the hospitality industry. This includes food service, hotels, and other service industry jobs. While there are perhaps a number of complex reasons for this statistic, it likely has something to do with sheer numbers. It is a big industry, there are a lot of people working in these jobs, and although sexual harassment claims can be made by women and men alike, 74.4% of claims in 2014 were filed by women.

Hospitality is still a female-dominated industry, meaning there is just a statistically higher probability of sexual harassment claims in this industry. Of course, these jobs are also more likely to involve late nights, alcohol, and other factors that may increase the likelihood of inappropriate relationships forming in the workplace.

Retail

Retail jobs made up about 13.44% of the claims. Much like hospitality jobs, this field often requires odd shifts, late hours, and younger, less experienced workers and supervisors. These things tend to result in poor decisions and less accountability.

Manufacturing

A largely male-dominated industry, manufacturing involves shift work, late nights, and women working side-by-side with male counterparts. Manufacturing accounted for 11.72% of the claims filed with EEOC.

Healthcare

An ever-growing industry that has fairly equal representation between men and women, healthcare ranks fourth on the EEOC’s list of industries for sexual harassment claims. It is difficult to know exactly why so many healthcare workers claim discrimination and harassment each year, but it may again have something to do with the close proximity in which people work, the late or variable shifts, or the high-stress atmosphere. These things can lead people to develop unhealthy workplace behaviors that can go unchecked or unnoticed by management.

Administrative Support

A blanket term for secretarial, office workers, and other general clerical workers, this industry makes up a significant percentage of all American office jobs.  Employees who directly support professionals (e.g. secretaries, assistants, receptionists, etc.) are often the subject of harassment and discrimination by superiors. Many times, discrimination comes in the form of quid pro quo (or “this for that”) types of arrangements, whereby a person in a position of authority makes it clear that the job or pay increases are “conditioned” upon improper sexual favors or silence.

Are You Suffering From Workplace Discrimination or Harassment?

If you or someone you know is being sexually harassed or discriminated against on the basis of race, color, religion, sexual orientation or identity, gender, or any other federally protected status, you should contact a Birmingham employment rights attorney right away. Federal law protects workers from this type of behavior, and you may even have a right to be compensated for your lost income if you are fired or denied a promotion for these reasons. Call Fonteneau & Arnold, LLC to learn more today.

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What is USERRA and How Does it Protect My Job?

Reservists and National Guard members serving in the U.S. Armed Forces can face a lot of challenges when it comes to maintaining civilian employment. Employers often want the skills and experience that service members bring to the job, but deployments and annual training drills can be a struggle for employers. Fortunately, federal law protects members of the Armed Forces. Alabama employment attorneys want you to understand your rights when it comes to military service and private employment.

What is USERRA?

You may have heard of the federal law, but do you really know what it does? USERRA is short for the Uniformed Services Employment and Reemployment Rights Act, and it prohibits employers from discriminating against employees (and applicants for employment), simply on the basis of military service.  The law is designed to ensure that a member of the Armed Forces can maintain his or her job in the civilian world, regardless of the need to mobilize in support of military duties.

The law is extremely complicated and has many nuances and exceptions, but in general, it accomplishes three things:

• It protects service members against discrimination for employment, retention, advancement, benefits, and re-employment after returning from military service
• It requires employers to give you up to 24 months of health insurance upon going on military leave
• It makes clear that military service takes priority over private employment

To Whom Does USERRA Apply?

As a general rule, USERRA applies to all employers, no matter how small. Even a mom and pop shop with one employee is governed by the law. Unlike most federal wage discrimination laws and state labor laws, there is no industry restriction or size limitation; all employers are required to comply. Members of the Armed Forces who are over 40 years of age are also protected by the Age Discrimination in Employment Act.

Common Ways Employers Violate USERRA

Every year, thousands of USERRA complaints are made to the Department of Labor, and many of them involve very similar violations, such as:

• Refusing to hire a reservist
• Taking away seniority after a deployment
• Not providing health insurance while on military leave
• Refusing promotions or advancement due to military status
• Not letting a reservist or Guard member return at the same job or pay rate after military leave

Enforcing a Service Member’s Rights Under USERRA

Unlike almost all other federal causes of action, there is no deadline on filing a lawsuit against an employer who discriminates against a member of the Armed Forces under USERRA. That said, if you are fired because of your attendance at military drills, or you suffer any other adverse employment consequences due to your military service, then you should immediately contact an attorney who understands this complex federal law.

The attorneys of Fonteneau & Arnold, LLC have decades of experience helping workers enforce their rights under state and federal law. If you have been the victim of a USERRA violation, and you believe your employer has discriminated against you on the basis of your military service, you may have a right to bring a civil lawsuit against the employer to recover for lost income, lost benefits, and other damages. Call or visit our firm online to learn more and get the help you need.

 

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What to Do If Your Boss Makes You Falsify Time Entries

Under federal law, employers are required to keep accurate records of employee labor. This is because the law also has rules pertaining to what an employer must pay an employee, such as minimum wage and overtime. Birmingham labor law attorneys routinely meet clients who have been cheated out of their earnings due to unscrupulous employers hiding or mishandling payroll information. One clever trick some employers use is to have an employee falsify time entries. Then, if that employee complains, the employer fires the employee, alleging the termination is because the employee was breaking the law by lying about his or her hours. It is dirty, and it is unlawful. Here is what you should know about timekeeping standards and federal law.

Fair Labor Standards Act

Under the Fair Labor Standards Act (FLSA), employees are guaranteed minimum wage and overtime pay, where eligible and qualified under the law. An employer is prohibited from “reducing” or in any way capping overtime pay. Put another way, if you work the hours, you get the pay. An employer does not have to let you work more than 40 hours per week, but if you do, then you have a right to be paid the applicable time and a half rate for those hours.

How Employers Use False Time Entries to Avoid Overtime Pay

An employer might create this unlawful situation by first asking employees not to ‘go over their hours.’ This is code for ‘we do not want you to work more than 40 hours.’ This is perfectly fine. However, over time the employer might begin noticing that the business sometimes requires more hours. The employer may begin asking employees to ‘carry over hours.’ This is code for “falsify your time entries so we do not have to pay overtime for your extra hours.”

If an employee works 35 hours one week then 45 the next, the employer may try to have the employee shift the five extra hours to the first week, thereby making three 40-hour work weeks, when in truth, the employee is probably due five hours of overtime pay for the week he or she worked more than the regular 40. This is unlawful.

Keep it in Writing

If your employer is forcing you to falsify time sheets or electronic time entries, first speak to an experienced labor law attorney near you. Most of the time, you will want to get your supervisor on the record in writing.

Employer’s Record Keeping Duties

Employers must keep payroll records for at least three years. Time entries must be kept for two years. There is no specific form of record keeping required, but there must be adequate information to record the hours worked and rate of pay.

Department of Labor Wage and Hour Division

If you are receiving illegal or inadequate compensation for your work, you may have a claim for the wage violations. These types of claims are brought before the Department of Labor’s Wage and Hour Division.

Being Represented by an Attorney in Your Wage Claim

Fonteneau & Arnold, LLC have over 20 years of combined experience helping Alabama workers just like you. From wage and labor violations to unfair or illegal terminations, we fight to protect hard-working people who just want to be treated fairly by their employers. Call or visit us online to learn more or schedule a consultation to review your case today.

 

 

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Is it Sexual Harassment to Ask Out a Coworker?

Like so many legal answers, the real answer to this question is, “it depends.” As a general rule, no. You can ask out just about anyone you want, assuming your company does not have anti-fraternization policies. We will set aside the issue of whether it is inappropriate or perhaps a bit unprofessional to ask out coworkers, you are legally permitted to ask coworkers out under most circumstances. Of course, many employers have strict policies that prohibit it, and for good reason. When relationships develop at work, it can negatively affect productivity, and when relationships fall apart, it can create an uncomfortable working environment for everyone.

At any rate, it is important to understand the nuance of what is meant by “ask out.” This phrase means different things to different people. To better understand this, it is necessary to first know exactly what sexual harassment is, and how the law views it.

What is Sexual Harassment?

The Equal Employment Opportunity Commission (EEOC) describes sexual harassment as follows:

• Unwelcome sexual advances
• Requests for sexual favors
• Other verbal or physical harassment of a sexual nature

So, the key is whether the advances are welcome or not. If there is any question whatsoever that advances are unwelcome, then no, you should absolutely avoid making any advances toward a coworker (or anyone else for that matter).

Rejected Advances

If a coworker asked you out and you rejected the request, this should be the end of the discussion. If that coworker moves on to other matters and makes no further advances, then it is unlikely going to rise to the level of harassment. After all, the key is unwelcome advances. Once you made it known that the advances were unwelcome, if the coworker respected your wishes and proceeds to behave professionally from then on, there should not be a problem.

Unfortunately, this is not usually what happens. If that coworker continues to “hit on” you or ask you out, this may be harassment.

Advances From Supervisors

Things become much clearer when it comes to superiors in the workplace. If a superior is making advances and asking out subordinates, it can create a quid pro quo scenario, wherein the employee feels as though the job, money, promotions, career advancement, and so forth are contingent upon giving in to the superior’s advances. This is definitely a big problem and one that should be cause for concern.

Sexual Jokes, Teasing, and Comments

The law does not expressly say that people have to be prudes or avoid all humor and lighthearted fun. We all want to work around people we like. We all want to be able to let our guard down and have a good time without worrying about things going too far. Sexual harassment occurs when a line is crossed between welcome and mutual jokes and something that is so serious, frequent or pervasive that it could be described as hostile. Unfortunately, that line can be hard to clearly identify.

If a coworker or superior occasionally makes an odd joke, but it does not really bother you or anyone else, it is not likely harassment. Perhaps it is just poor taste. But if this happens on a regular basis and is clearly creating an unpleasant and hostile working environment, then it is a problem. Likewise, if the severity of the behavior creates an adverse employment decision, such as you being fired for bringing up your concerns or for not engaging in the conduct, then it may very well be sexual harassment.

Talk to a Sexual Harassment Lawyer First

Sadly, the law is not 100% black and white in the area of workplace harassment. Often these cases are full of nuance and gray areas that require the skilled analysis of an experienced employment attorney who can compare your unique situations to hundreds of prior court decisions with similar facts. By looking at how courts and the EEOC have ruled in the past, an attorney can help you better understand your chances of success if you bring a claim for harassment. This is why it is important to talk to a lawyer early, before things get worse. For a free consultation, call Fonteneau & Arnold, LLC today.

 

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2017’s Five Biggest Tech Company Sexual Harassment Scandals

Far too many women experience sexual harassment and discrimination in the workforce. When it happens to you, it can be dizzying and confusing. There are so many questions that need to be answered. Worse yet, there are strict limits on how long you can think through what is happening to you before getting help.

For women in Silicon Valley, 2017 has seen a lot of revealing stories about sexual harassment and discrimination in the media. We have gathered a few of the most explosive stories of the year, specifically those involving high-tech startups and their leadership.

Draper Fisher Jurvetson

In November of 2017, Steve Jurveston was pushed out of his own venture capital firm amid widespread reports of “predatory” behavior towards women. Notably, Keri Kukral’s Facebook post regarding Jurveston’s behavior went viral, leading to a number of questions being asked. Soon, others came forward about the allegedly systemic behavior by Jurveston. Ultimately, as reported by ReCode, he stepped down from his own firm. He had also been a member of the board for Elon Musk’s companies, Tesla and SpaceX. Jurveston has since stepped down from both of those, as well.

Betterworks

Betterworks is a continuous platform management company that serves a lot of major operations around the globe. Former CEO Kris Duggan co-founded the company back in 2013. According to Business Insider, he opted to step down after being sued in a California court. The lawsuit was brought by a female employee who claims he made unwanted sexual advances while on a company retreat. Her career at the company ended when she left following the incident.

500 Startup

While the allegations against Jurveston and Duggan center on workplace sexual advances, allegedly used in a coercive manner, Dave McClure, the former chief of 500 Startup, takes this one step further. According to allegations, he forcibly and repeatedly kissed a female executive in 2014. As reporting from Fortune.com explains, the accusations go far behind using power or leverage to induce sexual favors; they directly suggest assault.

Google

The presumptive high-tech leader of the pack, Google, certainly was not immune from scandal in 2017. At least three high-level employees of the company were forced out amid allegations.

First, engineer Amit Singhal left the company to join Uber. However, Uber later discovered reports that sexual harassment allegations during his time at Google were determined by Google’s investigators to be credible. This led to his early departure from Uber in February of 2017.

Next, Andy Rubin was the subject of a 2014 investigation at Google due to allegations of inappropriate behavior arising from his relationship with subordinate female employees. While maintaining his innocence, the Android developer took a leave of absence from his company amid the allegations.

Finally, in November of 2017, yet another Google employee was the subject to sexual misconduct allegations. David Drummond, a top attorney at Google, was discovered to have been involved in a lengthy extra-marital affair with a female subordinate. As The Mercury News reports, that female employee has since left the company, yet Drummond remains the chief legal officer for the company’s parent corporation, Alphabet, Inc.

Uber

Uber gets first prize. Of course, that is not exactly a lofty prize. Since last June, the tech startup has seen at least 20 firings due to allegations of sexual harassment. Starting with the ousted CEO, Travis Kalanick, the company has been accused of having a ‘locker room’ culture that disparages women and leads to a terrible and hostile work environment for female employees. The Chicago Tribune details numerous accounts of female employees being ignored or outright shut down when complaining of sexual advances or worse.

How to Handle Sexual Harassment

While Silicon Valley had a rough year, sexual harassment happens in all types of workplaces.  The Equal Employment Opportunity Commission (EEOC) is the primary agency responsible for adjudicating claims under federal civil rights laws, including sexual harassment and discrimination claims. However, you must file a charge for workplace discrimination within 180 days. That means you generally have just six months to consider your options and take action.

Birmingham workplace discrimination lawyers can help you answer these tough questions and give you the tools, resources, and support you need in order to take control of your harassment or discrimination case.

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Getting the Pay You Deserve

Everyone knows about overtime. If you work more than 40 hours, you get overtime, right? Not necessarily. There are a lot of exceptions to overtime rules. In general, however, federal law offers some solid protections. Here is a brief look at the ways federal labor laws protect your wages.

Under the Fair Labor Standards Act (FLSA), workers have a right to be paid for their work. Below are just a few of the specific details. Remember, though, labor laws do not apply to all workers equally, and they do not apply to all industries. There are a lot of exceptions that are just too specific to discuss here. So, if you suspect your employer is breaking the rules, talk to a Birmingham wage and overtime lawyer right away.

Minimum Wage

Federal law requires that employees not be paid less than minimum wage. Currently $7.25 is the federal minimum wage.  Most states have a minimum wage that exceeds the federal standard. You can compare state minimum wage to see how your state stacks up.  In those locations, workers must be paid the higher amount. Alabama does not have a minimum wage.

Consider that according to a U.S. Inflation Calculator, inflation has increased by about 14.3% since 2009. Alabama’s minimum wage has remained the same.

Overtime

Federal law also requires that certain classes of workers must receive ‘time and a half’ for any work over 40 hours in a given seven-day period. The rule can be a bit complicated, so you can also visit the Department of Labor to read more. In general, though, there is no requirement to pay overtime simply due to weekends, nightshifts, or holidays, unless it exceeds the 40-hour rule.

Hours Worked

Sometimes employers get sneaky to get around overtime rules. They may try to get employees to perform ‘administrative’ tasks or log off for required breaks. Others may require workers to do a host of preparatory tasks, such as maintenance or clean up duties, all off the clock. The Department of Labor offers a simple FACT SHEET to help you better understand the nuance behind the rules. Of course, the best way to know if your employer is violating your rights is to talk to a local Birmingham employment attorney.

Recordkeeping

Imagine trying to prove your employer has been withholding money for years, including overtime pay.  You claim the company makes you spend 30 minutes before and after your shift doing various tasks that are not compensated. You and your attorney determine that this is a violation of the law, and you wish to make a claim for your lost income. It would be easy for the employer to simply lie and say there is no record of your hours. To prevent this, FLSA requires employers to maintain accurate records of hours worked and wages paid.

Child Labor Protections

As of the year 1900, 18% of American workers were under 18, according a story by the History Channel. Many children were starved, worked long hours, and used to extremely dangerous, yet low-paid work. In 1938, with the passage of FLSA, strict compliance rules were put in place to prevent this.

Today, children under 14 may only work in limited jobs, such as newspaper delivery and periodic babysitting. At 14 or 15, a teenager can work a little more, but no more than three hours on a school day. The law allows gradually more work as a child gets older. For detailed resources, the Department of Labor maintains a special website to help children, their families, and employers to make sure they are in compliance.

Get Answers Today

It would be impossible to discuss here all the potential scenarios that could lead to wage violations. The easiest and most accurate way to address a potential problem with an employer is to contact an experienced attorney who understands the applicable state and federal laws in detail. Contact Fonteneau & Arnold, LLC today to discuss your situation and get real answers now.

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