Companies take heed, here are five common ways businesses discriminate against moms:
]]> 1. Discrimination Based on Pregnancy.Since 1978, employees have been able to sue employers in federal court for pregnancy discrimination under Title VII of the Civil Rights Act.
Companies often open themselves to pregnancy discrimination claims by:
2. Asking Illegal Interview Questions.
Although interviewers sometimes want to delve deep into their applicant's history, certain questions are prohibited by law:
It is appropriate for employers to ask if you have commitments that will keep you from working regularly.
3. Denying Leave.
The Family Medical Leave Act (FMLA) requires employers with more than 15 employees to give employees up to 12 weeks of unpaid time off for family or medical emergencies.
If a company denies a request for time off for a mother taking care of a severely sick child or for complications due to pregnancy, they may be liable under federal law.
4. Not Making Accommodations.
The Texas Commission on Human Rights Act (TCHRA) provides, like federal law, that discrimination based on disability is illegal.
Under both Texas and federal law, pregnancy is considered at least a temporary disability, and the Americans With Disabilities Act requires that employers make reasonable accommodations for pregnant employees to continue working.
5. Sexual Harassment.
Discrimination based on sex under Title VII includes actions at work that amount to sexual harassment.
Sexual harassment is certainly not solely the province of women, but moms who are subjected to sexually themed jokes, derogatory employee comments about gender, or lewd office banter have a claim for workplace discrimination.
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Following the old saying of "strength in numbers," employment class actions are often used when the number of people affected by an employer's conduct is high.
]]> Why Do Employees Bring Class Actions?If an employee's injuries from an employer's violation are relatively minor, then filing an individual lawsuit may be impractical because litigation can cost more than the damages are worth.
But when a group of employees sue together, the value of the employees' claims are thrown into the same pot and the claims add up. This makes the lawsuit more powerful for employees.
Since they share attorneys, evidence, witnesses and other aspects of litigation, it's also more cost-effective for the individual class members.
When Can Employees Bring Class Actions?
Both federal and state law regulate employment practices in the workplace, so any violation under those laws could potentially be turned into a class action lawsuit.
Disputes that can be litigated in a class action lawsuit include:
When a class action is permitted, the group files the lawsuit with a representative plaintiff -- called a "named plaintiff" or "lead plaintiff" -- at the front of the pack. It's very important that the class members have common interests and injuries that can be resolved for the entire class.
Collective Action
Collective action lawsuits can be brought when an employee's rights are violated under the Fair Labor Standards Act (FLSA), for disputes including:
Like a class action, to get a collective action rolling, an individual brings the lawsuit on behalf of the group of employees who suffered the same kind of violation.
But there is one major difference between a class action and a collective action. In a collective action lawsuit, each member of the class has to opt-in to the lawsuit to get the benefits of a successful case. In a class action, the group of employees automatically receive any possible benefits from the suit.
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While employment contracts usually contain common elements like your start date, salary, and benefits, they sometimes include lesser-known provisions as well.
Below, we've laid out three important contract terms and how they affect you.
]]> Nondisclosure AgreementsMany businesses gain their competitive edge through trade secrets they've developed. In order to protect this edge, some companies use confidentiality agreements to keep their secret processes, plans, data, and formulas secret. Under these agreements, employees are generally prohibited from discussing confidential matters with third parties.
If an employee breaks the confidentiality agreement, employers typically reserve the right to fire the person. If the breach costs the employer money, the employee may face a civil suit as well for breach of contract.
Noncompetition Agreements
Employers are often concerned that after they invest time and resources into developing an employee's skills, the employee may up and leave the company to work for a competitor. In order to prevent this, employers often include noncompetition clauses in their employment contracts.
Such clauses typically prohibit employees from working for a competitor or in the same industry for a certain period of time. However, depending on the industry, the clauses are often limited to a particular geographic area. Unfortunately for workers, noncompetes are enforceable in most states, unless they're overly broad or restrictive.
Arbitration Clauses
Lawsuits have a tendency to be expensive and time-consuming. In order to save time and money, employers often include arbitration clauses in their employment contracts. In the clauses, the parties agree to settle any dispute they may have through arbitration rather than through a court case.
In arbitration, a neutral third party (the "arbitrator") will hear both sides of the dispute and then issue a decision. Under the terms of most agreements, this decision is then binding on both the employee and employer. Arbitration clauses typically specify who gets to choose the arbitrator.
More Questions About Your Contract?
These are just a few of the many provisions that may show up in an employment contract. If you have questions about a certain provision, you'll want to consult with an attorney as soon as possible.
Another way to get a professional to look over your contract is to sign up for a personal legal plan like those offered by LegalStreet. With LegalStreet plans, attorney contract reviews (up to 10 pages) are included, as are attorney-drafted letters on your behalf. And plans are affordable, averaging out to less than $13 a month.
Employment contract terms can be confusing, but don't let that stop you from fully understanding what you're signing up for.
Disclosure: LegalStreet and FindLaw.com are owned by the same company.
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But they're not all the same. And depending on the situation in front of you and the type of person you're hiring, you might find yourself in a position where you need to have different contracts for different people.
Now, there's nothing wrong with using a template for your contracts. But at times, those contracts may need to be tweaked here and there.
]]> And in many cases, those contracts should be run past an attorney, if even for a brief review, to make sure that you're offering the right terms to the right worker.Here are three very important things to think about when signing contracts with employees or workers:
Don't be fooled by thinking that the contract you "bought" online is iron-clad. There's a great deal more to employment law than just drafting words on paper. Have an attorney review the contract and make sure that it's legally valid.
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Discrimination and harassment complaints are a huge headache for employers. Nobody likes an employment lawsuit, and nobody likes dealing with allegations of discrimination.
But when an employee complains about discrimination, you'd better take that complaint seriously. If you don't, you could find yourself in a tight spot, legally speaking.
]]> Under Title VII of the Civil Rights Act of 1964, workplace discrimination and harassment are illegal. An employer can be subject to huge legal liability as a result of discrimination in the workplace.Employers are urged to take swift action to respond to these complaints. Part of this swift action is promptly and properly investigating any complaints. If you don't investigate, you're setting yourself up for trouble, as Corp Magazine reminds us.
Here are a few things to be aware of during an employee investigation:
Employee investigations are delicate matters and should be taken seriously. Don't drop the ball on an employee investigation, otherwise you could be facing a long battle.
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]]>There's no set answer for that and as with anything, the answer depends on the facts and circumstances of the case.
In general, people shy away from costly litigation. So there is a general notion that settlement is better than a long drawn-out battle in court. Not all would agree, however.
]]> In general, litigation is drain on the company. A full blown lawsuit can drag on and as a result, costs can add up. Furthermore, litigation may require employees to take time away from work for depositions, or to provide and gather other types of evidence.A contentious court case can also result in bad press. That can put a company and its employees in an awkward situation. Are there any advantages to taking the case to court?
The one advantage is preserving the company's name. If the employer did nothing wrong, then the company might want to salvage its good name. In a frivolous case, there is less incentive to settle.
Furthermore, settling may make it look like the employer was in the wrong. This isn't always the case, but it can send that message to the public. There are times when the allegations alone are harmful to a company's image. If that's the case, settling could give the public the message that the company didn't want more negative publicity.
Fighting it out in court can also prove a point to potential litigants that the employer will not be bullied by frivolous lawsuits. It's generally known that many employers prefer settlement over litigation. Taking a case to trial sends a message that the company doesn't fold that easily. That message can be a powerful deterrent for others who want to sue.
There are pros and cons to settling out of court in an employment lawsuit. If you're the employee, know that your employer has incentives on both sides. Your case might be one where the employer settles or it may be one which the employer wants to fight out. A seasoned employment lawyer can help you figure out what your options are.
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The first step to landing a new job is to apply and interview for the position. But did you know that employment discrimination can arise even before you set foot in an interview room?
]]> Some forms of discrimination are blatant, such as an employer specifically telling a recruiter that he doesn't want to hire people with certain ethnic-sounding names. What's a lot less obvious are the employers who discriminate for the same reasons, but are a lot more tactful in how they go about it.For example, many employers have the ability to look you up on LinkedIn or Facebook and see your photo or your profile, and discriminate against you based on what they see.
What can you do about it? Nothing much. Unless a recruiter steps up and says that she was given orders not to hire people of a specific race or gender, there isn't much proof.
Moving on, prospective employers can discriminate during the interview process. This can be done through discriminatory interview questions.
Specifically, an employer should not ask you what your religion is or what your sexual orientation is. They also cannot dig for information about your marital status or your family situation.
Finally, once you're just about to be hired, employers sometimes run background checks. It's legal to run a background check but sometimes, these checks can go too far. For example, credit checks have been seen as discriminatory. The reason is that they have a disparate effect on one race over another.
Before you rejoin the workforce, know your rights. If you're not comfortable answering an interview question, you don't have to.
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As an employer, the last thing you want is an employment lawsuit stemming from an unfortunate incident on Valentine’s Day.
It’s wise to have a look at your workplace policies and send out an advisory to the employees a few days before Valentine’s Day. If you’re realizing now that you should have handled Valentine’s Day differently this year, here are a few things you should consider to prevent sexual harassment lawsuits next year:
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What is the FMLA?
In a nutshell, the FMLA is a law that helps employees take sick or family leave. It gives eligible employees the right to take up to 12 weeks of unpaid leave to care for a loved one. It also allows the employee to take that time for sick leave.
]]> Some reasons employees can take FLMA include childbirth, adoption or a serious medical illness.There are many rights and duties in the FMLA. Here is a quick summary:
Employee's Rights
Employer's Duties
For more information FMLA, contact an employment lawyer or check out our related resources below.
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How do you go about filing for your taxes when you don't have the necessary paperwork? Or if you have your paperwork, what do you do if it's incorrect?
Your employer is required to file a Form W-2 for employees, but not for independent contractors. If you're an employee, then you should receive your Form W-2 by February 1.
]]> If employers don't send these forms out or if they get information wrong, they may be subject to penalties, according to eHow.If you haven't received your tax forms for wages by the February 1 deadline, here's what you can do:
Of course, the IRS can give you more time to file your tax returns. Just file for an extension. But remember, an extension to file doesn't mean an extension to pay taxes, if you owe money.
Even if you do receive your W-2 on time, other issues may arise. For example, if you're not sure whether you are an employee or an independent contractor, take a look at your employment agreement. Also, check out our related resources below to learn the differences between an employee and a contractor.
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You might feel that you have nobody to turn to. This is especially the case when you've complained to upper management and possibly even the Human Resources department to no avail.
At that point, you might be feeling like nobody is on your side. Remember, HR works for your employer and in many cases, will look to protect your employer.
Once you've complained to management and nobody's done anything to help you (or worse, they've actually punished you for making your complaint), know that you have help through the Equal Employment Opportunity Commission.
Here's how you go about filing a claim with the EEOC:
]]> Make sure you're stil within the time limit. You need to file a charge within 180 calendar days from when the discrimination took place. This can sometimes be extended to 300 days, if there is a filing with a state or local agency that is enforcing a law that prohibits discrimination on the same basis.Check out the EEOC's online assessment tool to see if the EEOC is the right place to file your claim.
Filing by mail. To file a charge by mail, you will need to send a letter to the address below with the following information:
Go in person. The Houston EEOC office is located at:
Total Plaza
1201 Louisiana St., 6th floor
Houston, Texas 77002
Office hours are Monday to Friday, from 8 a.m. to 4 p.m. Walk-in hours are from 8 to 10 a.m.
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When filing one's federal income tax returns, one key document is the employee's W-2 statement of wages. Or, in the case of an independent contractor, Form 1099 provides the information on how much the worker earned.
But many employers don't realize that the form is only one part of the critical question: Is a worker more properly classified as an employee or contractor? Only after making that determination can they determine which form they need to send.
]]> Unfortunately, it's not as easy as simply telling someone that they're an employee or independent contractor. It's really a question of law. You can't tell someone they're an independent contractor and then treat them like an employee, or vice versa.Obviously, there's one huge incentive to having independent contractors: The employer doesn't have to withhold taxes.
For employees, an employer is required to withhold taxes, pay Social Security and Medicare taxes, and pay unemployment tax on their wages.
There isn't just one key deciding factor to determine whether a worker is an "employee." There are several. In fact, it's the combination of factors that can lead a court or the IRS to determine that an independent contractor is really a misclassified employee.
The IRS looks at the degree of control the employer has over the employee and her work tasks. The IRS also looks at finances, and determines whether the worker is reimbursed or uses company property to perform his duties.
Another aspect is how important and critical the worker's job tasks are to the employer's overall business.
Misclassification can be costly. An employer could have to pay back the unpaid taxes to the IRS. There may also be penalties.
To summarize, an employer needs to ensure that their classification of workers complies with the law. Because the issue can be a bit complex, you may want to work with a Houston employment lawyer to make sure you're right.
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The employee alleged that Mr. Chopsticks Inc. failed to pay her overtime wages. She also claims that the company altered its records after she filed a complaint with the Department of Labor.
The plaintiff, Marlene Lopez, worked as a cook at the restaurant for over ten years. She claims that she worked an average of 60 hours a week and was paid between $9 and $11 an hour.
]]> She never got overtime pay, she claims.The lawsuit references the initial complaint filed in October 2011 with the Department of Labor.
After that complaint was filed, Lopez’s lawsuit claims that the company ordered that the all computerized payroll records be altered to show that employees worked at a lower hourly rate.
If this is true, it could be a costly mistake for the company. As if it’s not enough for the company that they have a wage and hour lawsuit, they may have also gone one step further and falsified records. That could be cause for some stiff penalties.
Wage and hour laws set out the minimum wage that employees must be paid. They also state that employees who are classified as non-exempt are entitled to overtime pay for working over 40 hours. This pay is equal to time-and-a-half of the employee’s regular pay.
Exempt employees don’t need to be paid overtime. These include employees who are paid at least $23,600 per year, are on a salary basis and perform exempt job duties.
Exempt job duties fall into three categories: Executive, professional and administrative. For more information on exempt versus non-exempt employees, have a look at our related resources.
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Let's recap the Top 5.
1. Breastfeeding at Work
One of the most interesting lawsuits came out of Texas. It was the breastfeeding lawsuit, in which a judge ruled that breastfeeding discrimination was not protected under federal law. The woman, who claims she was fired for pumping breast milk at work, tried to bring a lawsuit under the premise of gender discrimination.
]]> 2. Gender Discrimination / DisparityNow, if we're looking at ambitious lawsuits, we have two similar lawsuits vying for that prize. From Philadelphia, we have the Greenberg Traurig lawsuit, in which a former partner is alleging gender discrimination. Similarly, the venture firm of Kleiner Perkins is being sued by Ellen Pao, who is claiming gender disparity among members of her firm. Greenberg has a branch in Texas.
3. Women at Walmart
On the topic of gender discrimination, we also have the Walmart lawsuit. This Florida based lawsuit alleges that the company treated women differently. The Florida lawsuit is similar to an earlier Texas based lawsuit against Walmart.
4. The "Armani Look" Lawsuit
In retail news, the Wet Seal lawsuit also touches down in Texas, although it's based on an incident in Philadelphia. A store manager actually referenced an email that said that in order to be successful, the retailer had to hire people who had the "Armani look."
5. Fired After Cancer Diagnosis
Finally, a sadder lawsuit-- the Ex-CEO of the retailer Tuesday Morning alleged that she was fired after she was diagnosed with breast cancer. The question to be discussed will be whether breast cancer is a disability under the Americans With Disabilities Act.
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So maybe it's just best to pick a career that's not too stressful? Such as a university professor, perhaps?
According to a new Top 10 list of the most and least stressful jobs for 2013, university professor takes the cake for the least stressful job, according to ABC News.
But what if you don't have the luxury of flipping careers? What if you're chained to your desk with the boss from "The Devil Wears Prada"? When can you sue, and how?
]]> Unfortunately, there's not too much recourse. There's simply no legal cause of action to sue for "causing stress" on the job. If that were the case, employers would be fending off lawsuits left, right and center.While a stressful work environment isn't a direct cause for legal action, it can be part of a claim, broadly speaking. For example, it can be part of a discrimination claim, if the stress on the job comes from a hostile work environment.
It's not always that easy to claim a hostile work environment, however.
There needs to be an underlying discrimination claim for one to allege hostile work environment.
If the employee finds that the harassment or treatment received is inhibiting his or her work, then the employee might have a claim. This is the case when the harassment or bad behavior comes from a discriminatory motive and is based on a protected characteristic (gender, race, religion or several others specified by law).
In some cases, employees have tried to raise claims under the Americans with Disabilities Act. The theory behind these ADA claims is that the employer's behavior caused the employee to suffer mental illness (depression and the like). Subsequently, the employee claims that the employer failed to accommodate his disability. These claims haven't been too successful, however.
So if you want to avoid having stress on the job, you may want to consider becoming a university professor or a tailor. Suing your employer will only cause more stress, and it might not yield successful results.
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