This July, the EEOC received a $166,500 jury verdict against a Subway franchise for discriminating against a hearing impaired woman, Tammy Gitsham. The EEOC presented evidence that Ms. Gitsham was forced to resign her position after both the owner and human resources/training manager repeatedly mocked her privately and in front of other employees, creating a hostile workplace, with taunts such as: “Read My Lips” and “Can you hear me now?” and “You got your ears on?” because she is hearing impaired and wears hearing aids. The Dallas jury awarded former area supervisor $66,500 for lost wages and emotional harm and an additional $100,000 in punitive damages in the EEOC’s suit under the Americans with Disabilities Act of 1990 (ADA)

Shockingly this Subway franchise still is not aware of the hazard of discriminating against its employees. As part of the Subway franchise I would hope that training was available to help educate the owners with the do’s and don’ts of employee relationships. Hopefully this verdict will be a wakeup call for Subway. Employers need to learn the law against discrimination and effectively train their employees to limit discrimination in the workplace.


Keep Your Performance Evaluations!

Lately I have seen quite a few potential clients without copies of their performance evaluations or other important documents from their employment. So I wanted to take a minute to stress the importance of keeping a copy of these documents at HOME. No matter how great your job is today, I believe that an employee must protect themselves. Too many times have I seen employees come to me unprepared for the hurt and chaos that comes when they are terminated. One of the best things you can do for yourself is to keep documents that show how great of an employee you are. Keep everything that shows how good of an employee your boss thought you were. These documents include, emails, company awards, customer satisfaction reviews, etc.

One of the most important documents for you to keep are your performance evaluations. Keep the good and the bad. These performance evaluations are done for the most part to protect the company, but often in wrongful termination cases these evaluations can help you. I love it when opposing counsel comes to me and tells me that the termination was justified because this employee was so horrible, and I have a glowing performance review from the same company outlying how great this employee was just a few months before. It is also a good idea to keep your job description, employee handbook, and any documents that have your signature, such as employment contract.

Most importantly, when you begin to start having problems at work keep a record of anything that you believe may be problematic later. One final note, keep all your documents at HOME not at work. Many employers often terminate employee away from their desk and may not give them an opportunity to clear their belongings. You want to make sure you actually have possession of that the evidence you gathered.

Note: Before copying or downloading any files from your employer be sure to read your company’s policy on downloading files. Make sure that you do not violate your company’s policies while protecting yourself. If you are not sure what you can or can’t do under you company’s policy feel free to contact us.

Is Your Job in Jeopardy?

Most of us spend at least 8 hours of our lives at work. We often learn a lot of information about our workplace and coworkers. If we are alert we often can get some clues that our own employment may be in jeopardy. Here are some clues that Yahoo has come up with that can help you determine if your job may be in jeopardy.

Changes in communication.
Your boss avoids eye contact, maintains distance, and chooses to communicate via email rather than your usual face-to-face conversations. Smiles become infrequent, and communication becomes impersonal and matter-of-fact.

Responsibilities are diminished or taken away.
No matter how it might be sugar-coated, if projects or responsibilities are reassigned to someone else, this should be a red flag alerting you that you’re not indispensable.

You sense your replacement has just been hired.
Be cognizant of new hires and their areas of responsibility. A new employee who is unexpectedly sharing your duties, supervising you or working closely with your boss might be in training to assume your position.

You’re excluded, kept in the dark.
If you’re suddenly excluded from meetings, projects and communications in which you’ve actively been involved, you need to ask yourself — and your boss — what the reason is. Often, when employees are about to be terminated, they’re ostracized so that they’re no longer privy to company information.

Praise turns into criticism.
Of course, we can’t please everyone all the time, and positive criticism is necessary to improve our game. But if it seems that, no matter what you do or how hard you try, your efforts are met with disapproval, your job may be at risk. Continual criticism can have a negative impact on performance, productivity, and wellness. Before your job becomes unhealthy, take a step back and honestly assess your situation. It may be time to move on and find a new job.

You’re passed over for a promotion or raise.
While not always a sign that you’re about to be let go, being passed over is a signal to evaluate your competencies and skills, and identify areas where you might benefit from some professional development.

You’re placed on probation.
Probation is not necessarily the end of the world. In fact, it requires that your employer point out his/her specific concerns about your performance as well as detailed suggestions for improvement. In addition, probationary periods provide a timeline and typically some quantifiable measure to determine if you’re meeting expectations. Knowing the details of your employer’s expectations and where you might be falling short can empower you to make prompt, positive changes.

What can you do?

The best way to avoid the above scenarios is to be proactive. If you sense your position is on shaky ground, take immediate action. Communicate with your supervisors. Ask questions. Get to the bottom of any possible dissatisfaction, address the issue, and document the steps you take to resolve it.

If you feel that these changes may have been the result of discrimination contact at employment lawyer as soon as possible.

More Men Reporting Sexual Harassment

According to the EEOC more men are filing sexual harassment complaints then in years past. Cases filed by men made up 15.4 percent of the sexual harassment charges in 2006, compared to 14.3 percent in 2005 and 11.6 percent a decade ago. Although the statistics don’t indicate whether the harasser was male or female, EEOC officials do indicate that claims against female harassers are very rare.

This increase in claims may be due in part to the fact that more men are finding the sexual toned horseplay of earlier times unacceptable and understand they have legal rights to stop this behavior. Source.

Supreme Court to Hear New York Case on Companion Worker Overtime Pay Lawsuit

Under the Federal Labor Standards Act (FLSA), companion workers, employees who provide live-in care for senior citizens, were ineligible for overtime and minimum wage through an exemption in the law. The Second Circuit in the New York case of Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004)(“Coke I”), held that companion workers hired through third-party agencies were not exempt. Thus agencies providing companion workers would be required to pay minimum wage and overtime to its employees. To date, the Coke ruling is the first and only federal appellate court to rule that such exemption is unavailable to homecare agencies.

The defendants in Coke asked the U.S. Supreme Court to review the 2nd Circuit’s decision. On Jan. 23, 2006, the high court in an interesting procedural development, vacated the judgment and remanded the case back to the 2nd Circuit for further consideration in light of a U.S. Department of Labor’s Wage and Hour Advisory Memorandum No. 2005-1 (Dec. 1, 2005).

Despite the Supreme Court’s remand and the existence of the DOL memorandum, on Aug. 31, 2006, the 2nd Circuit issued an opinion in which it adhered to its original decision invalidating the regulation in question. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48 (2nd Cir. 2006)(“Coke II”).

The Supreme Court on Jan. 5, 2007, decided to hear the case.

In all likelihood this case will follow the Department of Labor’s memorandum holding that home health care agencies are eligible for the FLSA exemption. Thus in all probability New York companion workers will continue to be denied overtime and minimum wage pay.

Is Mandatory Paid Sick Leave Coming to NJ?

This week in San Francisco a new law took effect requiring paid sick leave for all San Francisco employees. The “Sick Leave Ordinance,” makes San Francisco the first city in the United States to require private-sector employers to provide paid sick leave for its employees.

What’s groundbreaking about this law?

• The law requires one hour of paid sick time for every 30 hours worked adding up to approximately nine sick days a year for full-time employees.

• Employees may use their paid sick leave not only for their own illnesses but to care for family members, including registered domestic partners.

• If employees have no spouse or registered domestic partner, they may use their sick leave to care for an unrelated “designated person,” such as a roommate or neighbor. Employees must be given an opportunity to designate this person once every year.

• The Ordinance prohibits an employer from retaliating against an employee for exercising rights under the Ordinance. Any adverse action taken within 90 days of an employee’s exercise of a right under the Ordinance creates a rebuttable presumption of retaliation by the employer.

New Jersey law makers are considering a mandatory paid sick leave policy of its own. The bill reintroduced by Assemblywoman Sheila Y. Oliver in January 2006, would provide 48 hours of paid time off for each six month period of full-time work. The employee would be able to use the accrued sick time any time during the one year period following the six-month period of accrual. The time could be used for the sickness of employee or family members. If the sick time is foreseeable the employee will have to give 14 day advanced noticed. The time could also be used for vacation or personal holiday leave with 30 days notice to the employer.

This bill has been reintroduced every year since 2003. New Jersey employees will have to wait and see if the legislature follows San Francisco’s lead in enacting this bill. NJ is usually neck in neck with California in terms of employee rights. I wouldn’t be surprised if NJ holds off on this legislation until the true costs and benefits of San Francisco’s law can be analyzed. We must remember that enacting this policy for the state of NJ is much more challenging than enacting this policy for a city.

Transgender Individuals Will Now Be Protected Under NJ LAW

On December 19, 2006, NJ Govenor, Jon Corzine signed legislation to add gender identity expression as a protected class against discrimination to the NJ Law Against Discrimination (LAD). Under the law, that will come into effect in 180 days, transgender employees will have the same protections of other protected classes under LAD. In addition, employers would be required to allow employees to dress and groom themselves “consistently with the employee’s gender identity or expression.”

This law seeks to codify the NJ Appellate Division’s ruling, in Enriquz v. West Jersey Health Systems, 342 N.J. Super. 501 (App. Div. 2001). In that case an employee was hired as a male and within a year of employment began undergoing a transformation to be a woman. The employer became uncomfortable with the transformation and terminated the employee. The Court held that transexualism, otherwise known as gender dysphoria, although not a handicap under the ADA, is a handicap under the LAD, and is fact protected from discrimination.

It appears that this new law, which makes gender identity a protected class of its own may seek to follow society’s more current view of gender identity as less of a “mental disorder” and more of a way of life for many Americans.