Sunday, March 30, 2014

Inability to Sit Can Be a Disability Under the ADA

Is the inability to sit for an extended period of time a disability under the Americans with Disabilities Act?  One court has said that it could be.  In Parada v. Banco Industrial de Venezuela, C.A., Case No. 12-3525 (2nd Cir., Mar. 25, 2014), the United States Court of Appeals for the Second Circuit has asked the trial court to decide whether the plaintiff’s condition meets the definition of disability under the ADA. The questions for the trial court are whether sitting is a “major life activity” and whether plaintiff’s condition substantially limited his ability to sit.   The case is noteworthy because the appeals court did not completely reject plaintiff’s claim that the inability to sit for a prolonged period is an ADA disability. 

EEOC Must Pay Employer $189,000 in Attorneys' Fees

The EEOC got hammered for dawdling in its investigation and bringing a claim that prejudiced the employer because of the delay.  The employee, a supervisor, said he got fired for complaining that only Hispanics received certain supervisory positions. He claimed discrimination based on his “American” national origin – somewhat of a reverse national origin discrimination claim.  He went to the EEOC for help. Six and one-half years later, the EEOC filed suit. The district court granted the employer's motion for summary judgment and awarded the employer just over $189,000 in attorneys’ fees – ouch!.  The court found the EEOC acted unreasonably in pursuing litigation.  On appeal the EEOC argued that the trial court abused its discretion by awarding fees.  The appeals court disagreed.  The EEOC has ninety days to ask the U.S. Supreme Court to accept the case for review. EEOC v. Propak Logistics, Inc., Case No. 13-1687 (2nd Cir., Mar. 25, 2014).

Employer's Confidentiality Policy For Wage Information Violates Labor Laws

Unfair Labor Practice Found

In Flex Frac Logistics, L.L.C., et al. v. NLRB, Case No. 12-60752 (5th Cir., Mar. 24, 2014), Flex Frac, a non-union trucking company, asked the court of appeals to overturn an Administrative Law Judge’s decision, affirmed by the National Labor Relations Board, that the company’s employee confidentiality policy constituted an unfair labor practice. The policy prohibited employees from divulging “personnel information.” The case originated with a fired non-union employee’s unfair labor practice charge.  The ALJ found that although there was no reference to wages or other specific terms and conditions of employment in the confidentiality clause, the clause nonetheless violated NLRA Section 8(a)(1) because it restricted employees from exercising their NLRA Section 7 right to discuss wage information.  The court concluded that the NLRB's interpretation of the confidentiality clause was not unreasonable. The court, therefore, enforced the NLRB's order restricting the company from maintaining a policy prohibiting employee discussion of wage information.

Wednesday, March 26, 2014

Things You Need To Do If You’ve Been Fired From Your Job

Things You Need To Do If You’ve Been Fired From Your Job

1. File for Unemployment.

Apply for unemployment benefits as soon as you learn that your employment has been terminated. The sooner you get the process rolling the sooner you can get benefits. Ohio employees start the process with the Ohio Department of Job and Family Services.  Applications can be submitted online ( or by phone (1-877-644-6562).  Be ready to provide the following information:

Your Social Security number
Your driver's license or state ID number
Your name, address, telephone number, and e-mail address
Name, address, telephone number, and dates of employment with each employer you worked for during the past 6 weeks
The reason you became unemployed from each employer
Dependents' names, Social Security numbers, and dates of birth
If claiming dependents, your spouse's name, Social Security number, and birth date
If you are not a U.S. citizen or national, alien registration number and expiration date
Your regular occupation and job skills

File an appeal if your claim is denied.  The determination notice will tell you how to appeal and the deadline for doing so.  File another appeal if you are denied again.  The claim is then transferred to the Unemployment Compensation Review Commission (UCRC).  There you will get a 45 minute hearing by telephone.  You should retain an attorney to represent you at the hearing.  Don’t wait until the last minute to get an attorney.  Contact an attorney as soon as you receive notice that your first appeal has been denied.  Many attorneys, including me, will represent you on a contingent fee basis.

And don’t forget to file your weekly claims.

2. Start looking for a new job.

This seems obvious.  Your main source of income has been lost.  Your best interests require an intense and immediate job search.  Taking a few days to settle into your situation is a good idea sometimes.  Be ready to get back in the saddle, though.  To maintain unemployment benefits you must apply for at least two jobs every week.  Apply to more than that – the objective is not to stay on unemployment; the goal is to find a comparable position that pays as much as or more than what you were earning before.

There is a not so obvious reason to start your job search.  In a lawsuit your former employer’s attorneys will require you to provide information about all jobs you applied for and to produce related documents.  So, maintain an ongoing list of jobs applied for. Keep copies of all documents pertaining to your job search.  This includes printing out pages from internet websites such as  An employment attorney who represents you will need them.

3. Do not talk about what happened on any           social media site.

Just don’t.  Every employer’s attorney these days asks for information about Facebook, LinkedIn, personal blogs – everything out there on the internet where they can grab information about you.  It’s very simple: don’t post anything about your former employer, reasons for your termination, or anything you would not want to be asked about by the employer’s lawyer.

4. Keep a copy of important documents.

Keep your copy of the employee handbook.  Forward copies of emails that you think are important to a non-work, personal inbox.  Make copies if you can of important hard copy documents.  Don’t take anything that could be a trade secret, customer lists or like information.  You do not want to be accused of stealing proprietary information.

5. Stay on good terms with your work                   friends.

Friends from work can be a valuable resource.  Don’t feel bad if eventually they will not communicate with you about what’s going on at work.  Once a lawsuit gets filed employers almost always tell employees not to speak with the plaintiff, under penalty of termination.

6. Contact an employment lawyer.

If you think your former employer violated your rights then contact an employment lawyer.  We lawyers love getting called by prospective clients.  Most attorneys, including me, offer a free consultation to determine if you have a claim.  Call more than one lawyer.  Sometimes one lawyer will see things that other lawyers don’t.

David W. Neel - Employee Rights Attorney

Saturday, March 22, 2014

Proposed Overtime Rules Will Help Millions Of Americans

More Overtime Expansion

On Saturday, March 15, 2014, President Obama continued his push to help middle income workers by making more employees eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).  The FLSA is the federal law that requires employers to pay time and a-half to wage for work employees.  On March 13, 2014, the President issued a memorandum to the Labor Department proposing significant changes to overtime rules.  President Obama used his weekly radio address to focus attention on his labor agenda.

Changes to White Collar Overtime Exemption

White collar employees, such as professional, executive and administrative employees, are considered exempt from the overtime laws if they earn at least $455 in gross pay per week.  This equates to an hourly wage of $11.37 based on a 40 hour work week.  Extra hours, though, reduce the wage rate.  At about 60 hours per week, the white collar employee barely earns the federal minimum wage. In states like Ohio with a higher minimum wage, they earn less than the minimum wage.
The $455 per week limit comes out to $23,660, which is below the poverty level for a four-person family. President Obama has not called for a specific increase. Many economists, however, have proposed doubling the weekly pay limit to nearly $1,000 per week, or $52,000 annually. That figure better reflects a white collar pay level.
Many employers designate employees as supervisors to avoid overtime pay requirements. President Obama’s memorandum to the Labor Department also proposes revised Department rules to re-define the term supervisor.
The process of implementing rule changes includes a period for comment from the public.  This process means that it could be 12-18 months before new rules go into effect.  The last increase to the white collar pay limit occurred under President Bush in 2004.

David W. Neel - Employee Rights Attorney

Home Health Aides to Get Overtime and Minimum Wage Protections

Current Law 

People who employ housekeepers and others to perform household services in their home for at least 8 hours per week are required to pay the minimum wage and overtime. Babysitters who work a regular, steady schedule for more than 8 hours per week are covered too.

One would think that home health care workers, such as STNAs and CNAs (but not registered or practical nurses) would be entitled to minimum wages and overtime pay. The current general rule is they are not because of the “companionship” exemption. Companionship services mean fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. If, however, more than 20% of such services include household work for the aged or infirm person, such as meal preparation, bed making, washing of clothes and general household work, then they are considered domestic service employees entitled to the minimum wage and overtime pay.

New Law 

The law will change on January 1, 2015. As of that date, home care staffing agencies will have to pay their workers the minimum wage for all hours worked, and overtime pay at time and one-half of the regular rate of pay for all hours worked over 40 in a workweek, regardless of duties. As a result, millions of home care workers will become entitled to the minimum wage and overtime pay.

David W. Neel - Employee Rights Attorney