Wednesday, November 16, 2016

Armani v. Northwestern Mutual Life Insurance


District court, which upheld ERISA insurer’s determination that plaintiff could perform sedentary work and thus was not entitled to long-term disability benefits, erred by rejecting plaintiff’s proposed definition of sedentary work on the basis that it was drawn from the Social Security context. An employee who cannot sit for more than four hours in an eight-hour workday cannot perform sedentary work that requires sitting most of the time.


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Thursday, July 21, 2016

Growing Trend in Sick Leave Policies

John L. Litchfield
https://www.laboremploymentperspectives.com/2016/07/18/the-second-city-adopts-paid-sick-leave-following-burgeoning-national-trend/#more-3649
July 21, 2016
Late last month, the Chicago City Council unanimously approved a new paid sick leave ordinance requiring virtually every employer in the city to provide at least some paid time off to employees for sick leave purposes. Cook County’s Board of Commissioners is expected to approve a similar ordinance later this year. Chicago is not forging any new paths by doing so — it is only the latest example of a nationwide trend to mandate that employers provide paid time off to employees to care for themselves or their families — a trend certain to continue and expand.
Although there is currently a patchwork of rules and regulations regarding paid sick leave across the country, Chicago’s ordinance is a fair representative of similar requirements in other states and municipalities. The ordinance, which will become effective on July 1, 2017, covers any employee based in and/or working inside Chicago’s city limits who works 80 or more hours within a 120-day period — essentially anyone taking home a paycheck on a regular basis. Employers must provide these workers the right to accrue and use up to five paid sick days (or 40 hours) per year, earned at a minimum rate of one hour for every 40 hours worked.
Further, workers must be allowed to roll over up to two and a half days (20 hours) of unused sick leave into the subsequent year — but employers can cap the total accrual amount at 40 hours, if they desire. Accrual of paid sick leave must begin on an employee’s first day of employment (or July 1, 2017, for existing employees — whichever is later), and accrual and use requirements are then measured from that date going forward. Employers may, however, restrict new employees’ use of paid sick leave until after they complete six full months of continuous employment.
Importantly, the Chicago ordinance does not require that employers create a separate paid sick leave scheme if they already maintain a general undifferentiated Paid Time Off (PTO) policy that meets or exceeds the required accrual rates. For example, if an employer maintains a PTO policy that provides accrual of PTO at a rate of two hours for every 40 hours worked, capping the total number of PTO days at 15, then the PTO policy exceeds the requirements. However, if PTO accrues at a rate slower than one hour for every 40 hours worked, the policy will need to be revised to meet the minimum requirements.
Sick leave may be used by employees to care for themselves or their families when they are sick, to receive medical care, including treatment, diagnosis, or preventive care, and if the employee or family member is the victim of domestic violence or sexual abuse. Employers must also give employees the ability to use their accrued sick time if the employer, or the employee’s children’s schools, are closed because of a public health emergency.
There are additional nuances to the law, some of which vary, depending on a particular workforce, including interplay with the Family and Medical Leave Act (FMLA) calculation of sick pay for tipped workers, and waiver of sick leave requirements in a collective bargaining agreement. Also, just as employers with PTO policies will want to ensure theirs is up to snuff in light of these new rules, employers without a PTO policy may want to consider adopting one to simplify their time-off benefit administration. As a result of these and other issues and trends across the country, employers should consult with counsel to ensure they are meeting or exceeding the minimum sick leave requirements in their places of work.

For more information, please visit www.BeverlyHillsEmploymentLaw.com

How Should an Employer Deal With An Employee's Workplace Stress Claim?

Bennett L. Epstein
https://www.laboremploymentperspectives.com/2016/07/18/when-is-aberrant-workplace-behavior-sufficient-to-justify-termination/#more-3651
July 21, 2016
Aberrant workplace behavior caused by stress or a psychological condition is not uncommon. However, such behavior can also cause employers to become anxious regarding how to lawfully deal with the disruption and its effect on co-workers. The United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) recently provided guidance.
The former employee in the case worked for the Wisconsin Department of Transportation (WisDOT) administering road tests to new drivers (a job that would cause anxiety in the most sound of minds …) and front desk services. She suffered from a variety of psychological afflictions including post-traumatic stress disorder, anxiety, obsessive compulsive disorder, and a medical phobia. However, aside from her afflictions, she was a substandard worker who, for many years, received unsatisfactory reviews, which culminated in being placed on probation.
Shortly after the probation, the employee broke down crying at work and exhibited signs of having self-inflicted wounds on her wrist. WisDOT placed her on a mandatory medical leave and required her to undergo an independent medical examination evaluation to determine whether she posed a threat to herself or others. Based on its observations (including her statement that she regrets that the knife was dull and that she wanted to die) and the report of the psychiatrist, which stated that “[The employee] continues to be at increased risk of potentially violent behavior to herself and others within the workplace,” WisDOT terminated her employment because it concluded that she continued to pose a threat of violence to herself and others. The former employee sued based on the Rehabilitation Act, but the trial court dismissed her case. The Seventh Circuit confirmed that dismissal.
The Rehabilitation Act (as well as the Americans with Disabilities Act) applies a different legal framework for analyzing an employment action based on intolerable conduct at work (a traditional disparate treatment analysis) and an employment action based on a threat of future danger to one’s self or others (an affirmative defense). In this case, since WisDOT remained steadfast that it terminated the employee because of her workplace conduct, the appellate court agreed with WisDOT that the proper issue is not whether the employee is qualified to perform the job or whether the employer’s job criteria tends to screen out persons with psychiatric disabilities, but whether she engaged in intolerable workplace behavior – which she did. The fact that WisDOT also relied on the report of the examining psychiatrist did not alter its reliance on the employee’s workplace outburst and statements.
The ultimate guidance from this decision is that an employer whose employee engaged in intolerable behavior at work, regardless if it was as a result of a psychological condition, may take disciplinary action as long as it is non-discriminatory. However, if the employer refers the employee to a mental health professional and relies on the danger to self or others affirmative defense, it will face the higher hurdle of an affirmative defense. Thus, employers should consult with counsel as to the proper characterization of the reason for the termination.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Wednesday, July 20, 2016

Hotels Take Advantage of Undocumented Workers

California Hotel Taking Advantage of Illegal Immigrants

 By 
Perris, CARamon believes he was denied California overtime while working at a major hotel chain because they thought he was an illegal immigrant. “I look Mexican so they figured I had fake papers but they are illegally denying workers their rights,” says Ramon.

Shortly after Ramon started working at the hotel he asked the manager when he could take his 10-minute breaks. He knows that, under the California labor code, workers are entitled to a 30-minute lunch break and two 10-minute breaks in an eight-hour day. But Ramon, age 28, desperately needed this job: he was staying in a homeless shelter and going to school at the same time for a welding certificate. This job was his ticket out of the shelter.

“I worked with four maintenance men and four people worked at the front desk in shifts,” says Ramon. “If the front desk staff needed a bathroom break, they would call one of us to relieve them. I would sit at the desk and if a potential guest asked for a room, we would ask them to wait.”

Ramon says that front desk staff didn’t even get lunch breaks - they were all Hispanic. Two weeks into the job he brought up the issue again. This time Ramon went to the owner [of the franchise]. “I told him that not giving workers breaks is illegal,” says Ramon. “I was the only one complaining because everyone else was afraid of losing their jobs.”

Sure enough, Ramon lost his job. He phoned the temp agency that got him the position and they made a call to the hotel on his behalf. Ramon was reinstated, but his days were numbered. “The day I returned, the owner said I had to clock in and out if I wanted to take a 10-minute break,” Ramon explains, “but I know this is ridiculous.” Ramon printed a page from the California Labor Commission’s website regarding breaks and meal penalties and gave it to the owner.

“The owner said he would look at it later. A week later he took me aside. Apparently he heard that I complained about labor law violations and that I was looking for another job. So he told me to go ahead and find work elsewhere. I was fired again and I know that retaliation is also a California labor law violation.”

Ramon gave up school while he worked at the hotel because they kept changing his schedule. He was paid minimum wage and was supposed to be paid every two weeks but they never had a pay schedule - yet another labor law violation. Sometimes all the employees had to wait an extra week to get paid. “We were told to expect to be paid anywhere from the 1st to the 5th or the 15th to the 20th of every month. Some people have a hard time finding jobs so they won’t complain - even legitimate workers aren’t getting breaks but they are afraid to complain. Look what happened to me. But they also have a hard time paying the rent.”

A few years ago Ramon was a supervisor at a warehouse and he became familiar with California overtime law. He knows the hotel owes him for missed breaks - 20 minutes a day for every day he worked at time-and-a-half.

Whether or not you are legally authorized to work in California, you are protected by the California overtime laws and labor laws for the following: 

• To receive a minimum wage of $9.00 per hour and $10.00 per hour beginning January 1, 2016
• To earn overtime pay - with some exceptions - after working more than eight hours per day or more than 40 hours in one week
• To file wage claims with the state labor commissioner if they believe their employer has violated state wage laws
• To file workplace safety and health complaints with Cal/OSHA, the state’s workplace safety and health program
• To work in an environment free from retaliation for exercising their rights
*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Overtime Class Action for Hotel Management Company

Proposed California Overtime Class Action Names Hotel Management Company

By 
Los Angeles, CAThe proper payment of overtime and allowance for mandated meal and rest periods remains a basic tenet of California labor amidst a basket of rights for employees in the Golden State. And yet, employers continue to violate overtime pay laws and other basic employee rights entrenched in state laws.

One of the latest examples is an overtime pay lawsuit filed against Interstate-RIM Management Company LLC. The lead plaintiff in the proposed class action lawsuit, Nancy Ramirez, holds in her action that Interstate-RIM pays their non-exempt employees, non-discretionary incentive pay based on job performance. While the plaintiff has no issue with the payment of such incentive pay, the complaint centers on the allegation that Interstate-RIM failed to include this non-discretionary incentive pay when calculating overtime.

To that end, the incentive pay should have rightly been reflected in a non-exempt employee’s hourly rate for the purposes of computing overtime. Any missed meal breaks and rest periods, as mandated by California overtime law, should be associated as extra time worked and thus, qualify for overtime as well.

The class action unpaid overtime lawsuit alleges that not only were all overtime hours not properly compensated, but that Interstate-RIM did not have a policy in place in order to facilitate the provision of a 30-minute meal period, provided without interruption, prior to the 5th hour of work as mandated by California employment law.

The overtime pay class action identified Interstate-RIM as one of the largest hotel management companies in the US. Ramirez seeks to represent all non-exempt employees who worked for Interstate-RIM at any time during a period beginning four years prior to the date the complaint was filed (June 24, 2016), and ending on a date to be determined by the Court.

According to the unpaid overtime lawsuit, the amount of damages sought is under $5 million.

The lawsuit also holds that Interstate-RIM required their non-exempt employees to work off the clock on a consistent basis. The conduct is described as requiring non-exempt employees to clock out, only to be detained for the purposes of answering emails and text messages on behalf of the employer, without benefitting from compensation.

“Defendant’s uniform policy and practice not to pay Plaintiff and other California Class Members for all time worked, including overtime worked, is evidenced by Defendant’s business records,” the lawsuit states.

The complaints include unfair competition in violation of the California labor code, failure to pay all overtime wages, failure to provide accurate itemized statements, and failure to reimburse employees for required expenses.

The lawsuit is Nancy Ramirez et al v. Interstate-RIM Management Company, LLC, Case No. BC624979, filed June 24 of this year in the Superior Court of the State of California, in and for the County of Los Angeles.

*For more information please visit www.BeverlyHillsEmploymentLaw.com


Monday, July 18, 2016

Price tag for sex and age discrimination: $250k

July 18, 2016
Tim Gould
http://www.hrmorning.com/price-tag-for-sex-and-age-discrimination-250k/
The EEOC just struck a blow on behalf of over-40 female employees across the country.  
RCH Colorado, owner and operator of the Reserve Casino Hotel, a prominent hotel and casino in Central City, CO, will pay $250,000 to settle an age and sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).
EEOC’s lawsuit charged that RCH Colorado, formerly known as Luna Gaming Central City, bought the casino, formerly known as the Fortune Valley Hotel and Casino, in January 2011, and violated federal law by choosing to hire younger candidates over older candidates and male candidates over female candidates with equal or greater qualifications.
According to EEOC’s suit, RCH Colorado refused to hire four older women applicants in the positions of slot attendant and cocktail server. Out of the 14 applicants for the slot attendant position, only the three oldest female applicants were not hired. RCH Colorado also refused to hire the oldest cocktail server, who was 63 years old.
EEOC’s lawsuit also claimed that prior to the sale of Fortune Valley, casino managers went around and took photos of employees on the casino floor. These photos were later used by RCH Colorado to screen out older, less attractive employees. EEOC’s investigation found a significant disparity in the hiring of female applicants and/or applicants age 40 and older.
EEOC filed its lawsuit in U.S. District Court for the District of Colorado after  an attempt to reach a pre-litigation settlement failed.
In addition to requiring RCH Colorado to pay monetary damages to the four women, the consent decree settling the suit requires the organization to:
  • conduct semi-annual anti-discrimination training for its employees, managers, supervisors and human resources employees
  • revise and distribute its anti-discrimination policies, and
  • report to EEOC if there are any complaints of age or gender discrimination.
EEOC Denver trial attorney Laurie Jaeckel said in a press release: “A growing body of research finds that older women face discrimination that is more prevalent and acute than other subcategories of the workforce, including that of younger women and older men. This litigation shows EEOC’s commitment to ensuring the protection of older women from discriminatory hiring practices.”
*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Price tag for sex and age discrimination: $250k

July 18, 2016
Tim Gould
http://www.hrmorning.com/price-tag-for-sex-and-age-discrimination-250k/
The EEOC just struck a blow on behalf of over-40 female employees across the country.  
RCH Colorado, owner and operator of the Reserve Casino Hotel, a prominent hotel and casino in Central City, CO, will pay $250,000 to settle an age and sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).
EEOC’s lawsuit charged that RCH Colorado, formerly known as Luna Gaming Central City, bought the casino, formerly known as the Fortune Valley Hotel and Casino, in January 2011, and violated federal law by choosing to hire younger candidates over older candidates and male candidates over female candidates with equal or greater qualifications.
According to EEOC’s suit, RCH Colorado refused to hire four older women applicants in the positions of slot attendant and cocktail server. Out of the 14 applicants for the slot attendant position, only the three oldest female applicants were not hired. RCH Colorado also refused to hire the oldest cocktail server, who was 63 years old.
EEOC’s lawsuit also claimed that prior to the sale of Fortune Valley, casino managers went around and took photos of employees on the casino floor. These photos were later used by RCH Colorado to screen out older, less attractive employees. EEOC’s investigation found a significant disparity in the hiring of female applicants and/or applicants age 40 and older.
EEOC filed its lawsuit in U.S. District Court for the District of Colorado after  an attempt to reach a pre-litigation settlement failed.
In addition to requiring RCH Colorado to pay monetary damages to the four women, the consent decree settling the suit requires the organization to:
  • conduct semi-annual anti-discrimination training for its employees, managers, supervisors and human resources employees
  • revise and distribute its anti-discrimination policies, and
  • report to EEOC if there are any complaints of age or gender discrimination.
EEOC Denver trial attorney Laurie Jaeckel said in a press release: “A growing body of research finds that older women face discrimination that is more prevalent and acute than other subcategories of the workforce, including that of younger women and older men. This litigation shows EEOC’s commitment to ensuring the protection of older women from discriminatory hiring practices.”
*For more information, please visit www.BeverlyHillsEmploymentLaw.com

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