July 17, 2014

A Caregiving Case Study, Part 1

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Today, let's look at an all-too-common scenario involving how employers treat employees' caregiving responsibilities. Read the facts and consider whether our employee, Gabriela, has any legal claims based on her employer's actions.

Gabriela has worked as a receptionist at a large company for the past five years. She has two sons, ages 15 and 13. She never had any problems at the company until she got a new manager, Marcy. Marcy believed that she had been hired to "whip this place into shape." She made it known that she planned to "crack down" on "excessive leave." Marcy made good on her promise, giving everyone a hard time about taking days off. She even commented when she believed an employee was taking "excessive trips to the ladies' room."

At the beginning of the school year, Gabriela's oldest son was injured in a sporting accident. He was taken to the emergency room and told that he had torn a ligament and would need surgery in the coming weeks. In the meantime, he could wear a knee brace.

The next day, Gabriela returned to work with medical documentation of her son's injury. She told Marcy that she would like to take that Thursday and Friday off to help care for her son after his surgery. Marcy said that it would be difficult to find someone to cover the shift and asked whether the surgery could be rescheduled. Shocked, but afraid to lose her job, Gabriela rescheduled the surgery for the following week.

The following week came, and Gabriela came back to work with her sons in the car. She went in to talk to Marcy about who would cover her shift while she was out on FMLA leave. Marcy rolled her eyes and asked, "Do you really need to take this time off? It seems like you've been out a lot." Gabriela had not been out a lot--hardly at all. She explained to Marcy that, following her son's surgery, he would not even be able to get out of the bed to use the bathroom without help. Marcy laughed and said, "Just teach him to pee in a bottle!" Gabriela began to cry. Co-workers began to notice, so Marcy ushered her out of the building. While Gabriela stood crying in front of her car, Marcy tried to calm her down. She asked to be introduced to her sons. Gabriela complied. The oldest son asked why his mom was crying and Marcy, as if it were a joke, said, "I told her that you could just pee in a bottle."

Gabriela took two days off as scheduled. When it became clear that her son would take more time than expected to heal, she wanted to ask for more time off, as she still had plenty of FMLA leave. But given her last attempt to get time off, she decided not to. Plus, the leave was unpaid and, as a single mother, she could not afford it. She went back to work, leaving her son to be cared for by his grandmother in the morning and her 13-year-old son when he got home from school.

When she returned to work, her relationship with Marcy was strained. Marcy barely spoke to Gabriela and openly excluded Gabriela from lunch invitations with co-workers. Three weeks after returning to work, Marcy wrote her up for an incident that occurred two months before Gabriela took FMLA leave. It involved an upset customer who had complained about something. When the incident occurred, Marcy confronted Gabriela about it. Gabriela tried to explain, but Marcy cut her short and said, "I don't want to hear it." Now, months later, the regional manager came through the office and asked to meet with Gabriela. The only private place to meet was the lunchroom. There, the regional manager asked Gabriela for her version of events. He told her to wait there while he went to "check out her story." An hour later, he came back and told Gabriela to turn in her key card and to collect her things. She was being fired. Incredulous, Gabriela asked why. The regional manager told her, "Because you lied to Marcy about what happened."

Gabriela found herself without a job in the worst economic downturn in a generation. She found part-time work in a restaurant, but it was not nearly enough to pay her mortgage. Gabriela made it as long as she could on credit cards, but she ultimately fell behind on her mortgage and lost her house.

Can Gabriela do anything about this? If so, what? What would be the potential value of any lawsuit?

You'll find out the answers to these questions in our next blog.

July 10, 2014

How to Get Your Employer to Agree That You're Disabled, Part 2

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In my last post, I shared two drafts of doctor's letters and asked which was more likely for the employer to accept.

Of course, the right choice is obvious: Choice B. But let's talk about why.

Evaluation of Choice A

Choice A might be enough to trigger the ADA process. So, that's at least something. It identifies an impairment of "really bad headaches." If you sent this in yourself, you might get some pushback on whether headaches are an impairment that constitutes a disability. But this is from a doctor, so that lends some credibility. Upon receiving it, your employer likely will at least talk to you about possibilities about making a change at work. Great. You've saved yourself a trip to a lawyer and a specialist. The problem is this: if your employer, after some weak and pro forma efforts to help you, decides to push back, you don't have strong grounds to fight back. Little in the letter suggests that your employer--or a court--needs expertise to understand. Everyone has some familiarity with headaches, even really bad ones. But where you really fell through the trap door is in putting "ability to work" as the major life activity. Yes, it is listed in the law as one, but that doesn't matter. Courts hate this one. Why? A lot of people work despite interferences. You don't need an expert to tell a court what work is about. Your employer will know that, or at least the company's lawyer will.

Evaluation of Choice B

But Choice B is more powerful in a number of ways.

  • First, a "really bad headache" becomes a chronic, sometimes debilitating migraine.
  • Second, and most important, it moves the battlefield from an area in the bailiwick of your employer--what constitutes a substantial limit on your ability to work--to one where your doctor rules--what constitutes a substantial limit on the normal functioning neurological system. Is the vice president of HR or even a judge going to be able to tell the doctor she is wrong? Nope. Of course, the employer can require a second opinion. But it is likely to grant a temporary accommodation before going to the trouble. Even if it does ask for the second opinion, you have a real disability. So, bring it on.
  • Third, this letter goes the extra mile by not even mentioning pregnancy and instead comparing your disability to one suffered by someone recovering from a concussion. Why should this matter? Some courts have concocted a bizarre doctrine under which impairments that are incident to a "normal pregnancy" cannot be considered a disability. In many instances, this is wrong under the law, particularly after 2009. But you might save yourself some trouble and a fair amount of legal fees if you don't point your employer down that path in the first place. We sidestep that here by not even mentioning the fact that you are pregnant and instead comparing what you have to the same disability that many athletes have experienced. Have a neanderthal judge who thinks pregnant "ladies" shouldn't have a job "if it hurts to work" but remembers that time playing college football that he got his bell rung after which he couldn't get out of bed for week due to migraines? Yeah, well, he's going to be much more likely to rule in your favor now that someone with an advanced medical degree has told him that you suffer from the same thing that he can relate to.

Let's be clear. I am not asking you to game the system. Have you seen those news reports where a detective takes video of someone out on disability cutting down a tree with a chainsaw or roughhousing with the kids? This is not that situation.

What I'm recommending that you put forward is the simple truth written in a way that helps you get the protection that you need. Employment law is stacked against the employee. The law is full of strange pitfalls that prevent those who have been truly wronged from getting any kind of justice. Employees brave enough to stand up to wrongful employment actions in the workplace should be protected to the full extent possible. In the ADA context, this means explaining to your doctor the nature of your symptoms and your circumstances at work. For instance, as discussed, one relevant factor in ADA matters is how long your condition will last. The longer you will have to put up with the impairment, the more likely you are to be covered under the ADA. We're not talking about getting a payday here--just about keeping a job that you probably very much need.

So, if you ask the doctor how long your conditions will last and she responds, "Well, let's hope that it's cleared up in a month or so," follow up by explaining your difficulties at work and that you could be entitled to small changes in your work environment, but probably not if this goes away in a month or so. And you can't keep on for a month or so. Maybe your doctor responds, "Oh, of course. I do hope that it clears up in a month or so, but in over half of my patients, it can take several courses of treatment. It's not uncommon for your condition to continue for up to a year." That makes a big difference in whether you get relief under the ADA--relief that many times will cost your employer next to nothing to provide. Let's face it, the real reason your employer may not be making the changes (e.g., letting you bring a water bottle, go to the bathroom more frequently, etc.) is that your boss doesn't want you around anymore. Babies are time-consuming. People without kids are more available. Let's go hire one of them. That's why this is happening. That's not right. Protect yourself with the best, most accurate information that you can get.

The Bottom Line

Here's the bottom line if you need changes to your work due to pregnancy. Remember that your employer is not required by law to change your work routine because you are pregnant. To get the relief you need, you need a doctor with a full understanding of your condition who can explain it to your employer. Your doctor should describe the medical reason underlying the need for changes in your workplace and should not rely on your pregnancy. If you can, find a lawyer with knowledge of this area before you approach your employer.

July 3, 2014

How to Get Your Employer to Agree That You're Disabled, Part 1

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Because of the ADAAA, which I discussed in my last post, many employers today will not put up a fight as to whether you are disabled. However, particularly for mental disabilities, sometimes an employer will request follow-up information from your doctor. In some circumstances, your employer may even ask you to take what is called an independent medical exam (IME), which is an exam conducted by a doctor chosen by the company. 

Regardless of whether your employer requests such information, it is important that you stay in close communication with your doctor and that he or she understand what kind of information your employer needs. This is crucial if your disability is an anxiety disorder. In that instance, you'll need your doctor to tie your anxiety disorder to physical or mental impairments: for example, that you have significant trouble sleeping, loss of appetite, or trouble concentrating.

Think about it. Let's suppose that since you've become pregnant, you've started experiencing really bad headaches. You've even had to go to one of those emergency after-hours care ("doc in a box") places for treatment--twice. It's been so bad that you haven't been able to concentrate at work. But you want to work to get that big report out. All you want is the ability to work at home for a month or so--a place where you control the lighting and where it is not nearly as noisy as the office. You've asked your curmudgeonly boss, but he's an old-time butt-in-the-seat-at-the-office kind of guy and rejected your request outright. "You get headaches? So what? Join the crowd, at work" is what he said when you asked. Human resources has been little help. You know about the ADA and plan to make a request.

Which of these do you think has the greater likelihood of success?

Choice A

You draft a letter for your doctor to sign. It says:

Ms. So-and-So has really bad headaches because she is pregnant. They interfere with her ability to work. It is my opinion that she needs to work from home for a month to treat the migraines.

Sincerely, Overworked Doctor Who Barely Read this Letter Before Signing

Choice B

You skip the doc in the box and go to a specialist. You explain what is happening. After having read some publications by WorkLife Law and meeting with a lawyer, you are even able to explain some challenges and possibilities under the new law. After the discussion, your MD, PhD doctor writes a letter stating the following:

Dear Mr. Curmudgeonly Boss and Nonresponsive Vice President of HR:

My patient suffers from chronic and sometimes debilitating migraines. As I believe you are aware, she has twice had to seek emergency medical care to treat severe episodes. After thoroughly examining my patient, I have determined that these chronic migraines are interfering with her neurological systems in the same way migraines that occur as the result of a concussion would. Ms. Patient must, for the next month, limit her exposure to bright lights and noise. The ideal way to accomplish this is for her to work from home, where she can control these variables. Please let me know if you require any more information from me.

Signed, Look-at-All-of-These-Degrees-and-Tell-Me-That-I-Don't-Know-What-I'm-Talking-About

You'll find out the answer next time.

June 26, 2014

What Does It Mean to Have a "Disability"?

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Many people are reluctant to call themselves "disabled," particularly if they suffer from depression or anxiety. For some, it seems wrong to claim a disability status because the iconic image of someone with a disability is a person suffering from a physical disability: for instance, a person in a wheelchair. Some don't think of themselves as disabled if the condition is temporary, as with some types of depression or anxiety. If this describes you, I urge you to let go of your reluctance to seek protection under this statute. It doesn't mean you are weak or a charlatan for claiming protection under the ADA. This law is there precisely to help people in your situation. Moreover, depending on your situation, the ADA may be the only legal remedy you have to protect yourself from wrongdoing in the workplace. And it is important that you seek the protections before you are fired, because you can only request accommodations while you are employed. The sad truth is that legal problems in the workplace can devolve into brutal hand-to-hand combat. To protect yourself, you need to use all the tools that you have.

Under the ADA, a person suffers from a disability if she has "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). (The underlining is mine.)

What Does "Substantially Limits" Mean?

Prior to 2009, it was more difficult to be qualified as a person with a disability because of the language regarding "substantial limitations." The U.S. Supreme Court and other courts had narrowed the definition of disability, primarily by finding that the "substantially limits" prong required that an impairment last for a significant amount of time. So, if you had an impairment that affected you only occasionally, like asthma, for instance, you would not be protected by the ADA, even though asthma affects the "major life activity" of breathing.

No more. Congress amended the law instructing courts to back off. In 2009, Congress added provisions that make it very difficult for an employer to challenge an employee's claim of disability. The amendments are called the Americans with Disabilities Act Amendment Act of 2008 (ADAAA). Indeed, the law now specifically provides that under the ADA, the emphasis "should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability." 29 C.F.R. § 1630.1(c)(4). Moreover, Congress expanded the definition of disability, explaining that "[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity to be considered substantially limiting." The law goes on to provide that the term disability should be interpreted by courts to "favor a broad coverage of individuals." Thus, under the new law, it is much more difficult for an employer to shirk its responsibilities under the law by claiming a health problem does not count as a disability. Of particular relevance for pregnant workers, a condition that lasts fewer than six months, gestational diabetes, for instance, can qualify as a disability.

What Constitutes a "Major Life Activity"?

The other underlined prong above is major life activity. The law provides examples of major life activities, which are listed below. But note that this list does not include everything. So, don't despair if what you are experiencing is not listed:

  • caring for oneself
  • performing manual tasks
  • seeing
  • hearing
  • eating
  • sleeping
  • walking
  • standing
  • lifting
  • bending
  • speaking
  • breathing
  • learning
  • reading
  • concentrating
  • thinking
  • communicating
  • working
  • sitting
  • reaching
  • interacting with others

But check this out. The ADAAA provides that "major life activities" also include the operation of major bodily functions, including, but not limited to, normal functioning of the following systems:

  • immune system
  • cell growth
  • digestive
  • bowel
  • bladder
  • neurological
  • brain
  • respiratory 
  • circulatory
  • endocrine
  • reproductive organs
  • special sense organs
  • skin
  • genitourinary
  • cardiovascular
  • hemic
  • lymphatic
  • musculoskeletal

The importance of this second list is that what constitutes a normal function of these systems is the province of a medical professional, not your HR department or even a judge. That's why it is key in these cases to have a thorough medical diagnosis of any issues that you may be facing and have a doctor who will explain in writing for your employer why changes at work are required as part of any treatment.

June 19, 2014

Should You Quit?

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Rebecca is employed by a large insurance company. After working for years with the company during which time she received good reviews and several promotions, she realized her dream of becoming pregnant. 

While the pregnancy went well, things at work did not. Her supervisors, none of whom had children, said the right things, but shortly thereafter, they took her out of a management-training program. When she protested, they said it would be better to start her in a different training class when she returned from maternity leave. That sounded reasonable, but it didn't happen.

In fact, when she returned from work, not only was there no opportunity to start with a new training program, but she didn't even have a desk. HR had to find her a temporary space. When she asked her supervisor about the situation, she was told they had to make some changes in her position due to her "condition." One of these changes was to put her in a position that involved answering customer calls. Not only was this a demotion, but it was also difficult for Rebecca because being on the phone meant a less flexible schedule and no private workspace. This arrangement also made it difficult for her to pump breast milk. Disgusted, she filed a pregnancy discrimination claim with the EEOC while she continued to work. A month later, she felt she couldn't take it anymore. She wanted to leave her job, so she called me and asked whether she should quit.

There is no "right" answer to this question. It is certain that quitting your job will weaken your case. First, in most cases, if you quit your job, you may not be eligible for what lawyers call back wages. These are wages that you are entitled to if you are fired for discriminatory reasons and are unable to find a job or find a job making less. In some cases, like the one above, your employer is moving toward firing you. If it does, you can get back wages. But if you quit before it can fire you, you likely cannot get those wages. So then, you are just left with emotional distress damages, which are generally much lower than lost wages.

If you quit, you may also deprive the employer of the opportunity to retaliate against you by firing you. I understand the common-sense desire to prevent your employer from doing bad things to you. But the worse your employer acts, the higher the value of your claim. Now, understand that I am not asking you to try to provoke bad behavior. Keeping your record clean is crucial to winning your case. I am simply talking about letting your employer do what it is planning to do anyway.

But here are two things to consider.

1. Sometimes you can still recover back wages even if you quit. Courts will allow this recovery when your employer made working conditions so intolerable that you have to leave. This is called "constructive discharge." The standard to meet this is very high. Being unhappy is not enough.

2. Most important, this is your life, and you only get so much of it. I never advise people to stay in a job just because it may raise the value of their case. At the end of the day, you have to do what makes sense for you. But it is important that you don't make that decision without understanding what you might be leaving on the table.

June 12, 2014

What Does Caregiver Discrimination Look Like?

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Many caregivers suffer adverse--and often illegal--actions at work. Sometimes these actions are subtle, while other times they are blatantly obvious.

Here are some examples of caregiver discrimination that are illegal when they are not motivated by a valid business reason:


  • Firing an employee after finding out she is pregnant

  • Firing an employee when he or she returns from paternity or maternity leave

  • Firing an employee for performing his or her family responsibilities

  • Firing an employee who is pregnant, who has an aging parent in poor health, or who has a sick spouse to avoid health insurance costs and to avoid expected excessive absences from work

  • Refusing to hire or promote a parent in favor of a less qualified person who does not have children

  • Refusing to allow a flexible schedule to allow a caregiver to provide childcare or other assistance to a family member, though other employees are granted flexible schedules for other reasons

  • Providing inaccurate information to an employee about the availability of leave and benefits

  • Discouraging an employee from taking maternity, paternity, or family and medical leave

  • Punishing an employee who provides care or takes leave through performance evaluations, disciplinary actions, reassignment, or transfer

  • Scheduling an employee for shifts that interfere with his or her caregiving responsibilities

  • Criticizing an employee for being a caregiver, including comments about stereotypes

No single statute prohibits these acts or protects those who are subject to discrimination because they have caregiving responsibilities. But together, a number of laws do provide such protections to caregivers:

Title VII of the Civil Rights Act disallows discrimination on the basis of any sex-based stereotype: it applies to both men and women. This means that an employer cannot deny leave to a man to care for his child because "that is something his wife should do."

The Americans with Disabilities Act (ADA) bars discrimination against those who "associate with" disabled family members. "Associate with" means serving as a caregiver.

The Family and Medical Leave Act (FMLA) protects both women and men who need to take leave to care for a child or a family member.

For more information, visit the Center for WorkLife Law.

June 5, 2014

Why Job Seekers Should Keep a Journal

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If you're looking for a job, it's important to keep track of all of your efforts.

This is a bit harder than it was in the "old days" when folks responded to a job application with a résumé. Then you could keep a copy of the ad and cover letter or e-mail application to show that you applied. 

Today, applicants may use LinkedIn or other another social media tool that doesn't produce an obvious trail of applying to a specific job. So, as you look for work, keep a journal of your efforts. 

Defense counsel love to ask employees about their efforts to find a job. They go over it in great detail in an effort to make you look less than thorough.

So, when you keep the journal, pretend you are doing it to demonstrate to your neighbor that you are working hard to find a job. This doesn't mean you have to apply for a job at McDonald's if you just lost a position as a senior vice president. But it does mean that you should be able to explain what efforts you used to find work, including why you did not use certain avenues. For instance, if you didn't use LinkedIn, just be prepared to explain why not. Here's one possible answer: 

"I work in an industry that requires a security clearance. Companies actually don't want applicants to have a conspicuous online profile. It might hurt my chances if I used social media."

Make sure to record the dates of your applications, the method of application, and the name of the employer; in the future this information might be hard to recall. Later, when you're trying to prove your efforts to the court and opposing counsel, you'll have a detailed document that will refresh your memory.

May 29, 2014

Association Discrimination Under the ADA: A Case Study, Part 2

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In our last post, we presented a quandary for an employee, Emily, and asked whether her employer did anything illegal. 

Yes, in fact, her employer did. The situation described above closely tracks what happened in the case Strate v. Midwest Bankcentre, 398 F.3d 1011 (8th Cir. 2005). 

Essentially, the Americans with Disabilities Act (ADA) association clause protects employees from illegal stereotypes (e.g., that an employee with a disabled family member cannot be an effective worker). In Emily's case, that is precisely what happened. The bank essentially fired her because senior management believed that she would need time off to care for her daughter with Down syndrome. Yet, Emily had not said that she would need time off. In fact, she expressly told the brash young VP that she had arranged for childcare and would not need time off. Thus, the only explanation for the bank's action was that senior management believed otherwise. That is illegal under the ADA association clause.

What Could Emily Get If She Sued and Won? 

She could receive back wages to include the time that she was fired until she obtained a new job. She could also ask for "front wages," extending out from the time that she won her case to some point in the future. This is assuming that she had been actively seeking work and had been unable to find a comparable job. Emily could also ask for emotional distress damages for the emotional pain that she experienced for being unlawfully fired. Given the bank's particularly brazen behavior here, she might even win some punitive damages. If she won at trial, the bank would also be on the hook to pay her attorney's fees. Emily has a strong case and likely would win many of these damages.

FMLA vs. ADA

Change some very important facts, and the situation becomes very different. Assuming the exact same facts but that, when Emily called the bank president she said, "You know, with my daughter's condition, I'm going to need some time off during the day for doctor's appointments. I'll try to minimize the time away from work and make up work in the evening. It's just something that I'm going to have to do." The next week, she's fired. Does Emily still have a case?

Not under the ADA (though she might under the Family Medical Leave Act (FMLA)). This is an important distinction to make about the ADA. Under the ADA, an employer is required to consider making reasonable accommodations to an employee to allow her to do her job. This could include providing flexible work hours, as Emily suggests here. In contrast, the ADA does not require an employer to provide an accommodation to someone who is protected under the association clause. The association clause only protects those associated with a disabled person from improper stereotyping on the basis of that association.

To Sue or Not to Sue: Monetary and Other Considerations

But here's an issue for Emily: she won't know for some time what her actual damages will be. Suppose that three months later, Emily finds another position that actually pays better than her previous job. Now she is not eligible to receive front wages, and she could only win three months of back wages. Sure, she could win emotional distress damages, but that may not translate into a significant sum unless she can show lasting emotional distress due to her firing. Let's suppose that she spent a week feeling "down" and for two weeks would often cry for no apparent reason. But after two weeks, she resolved to not let the bank "win," and, with renewed energy, set out to make a new life, which she did. This is great for Emily but not so good for her emotional distress claim. She likely would win something for the emotional distress, but probably less than $10,000. That leaves punitive damages. Emily might well win punitive damages in this case, but punitive damages are often hard to win in employment cases, particularly in more conservative areas in the country. Still, she might hit it big if the jury is sufficiently angered. Even then, a court probably would reduce a large punitive damages award to make it proportional to her damages award. So, it is entirely possible that a year's severance is more money than she would receive if she filed a lawsuit and won. Plus, she would get the severance immediately. Getting to a jury trial in most federal courts would take well over a year and would involve the considerable inconvenience of slogging through a lawsuit. But a severance agreement would require Emily to sign a contract that included language that the bank was admitting no wrongdoing, and it probably would require that Emily not disclose the terms of the severance. These provisions are the reason that defendants settle. It allows the defendant to buy security and peace of mind and, in this case, Emily's silence. That's tough medicine to swallow.

If she goes to trial and wins, there would be no restrictions on Emily. She could say what she wanted, plus she would have the pleasure of seeing a jury punish the bank and its brash young VP for breaking the law.

So, Emily has a tough choice: fight for principle and the possibility of an award that would exceed the year's severance or take a sure thing that would provide immediate security for her family. No choice is wrong. It really comes down to what Emily wants out of the situation.

May 22, 2014

Association Discrimination Under the ADA: A Case Study

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In the following case study, we'll consider the case of Emily, who took a job as an auditor with a bank soon after graduating from college. After seven years, she was promoted to vice president of operations and information systems. Three years of solid work performance later, Emily got pregnant.

Consider the following facts and think about whether the bank did anything illegal. 

Case Study

Shortly before her due date, Emily took leave under the Family Medical Leave Act. While she was on leave, the bank hired a consultant to restructure senior management positions. Emily gave birth to a baby girl with Down syndrome. Emily called the bank president, with whom she had a close working relationship. She told him about her daughter's condition and said that she would need two more weeks of leave to recover fully from the delivery. During the conversation, Emily said that she was afraid that the bank might eliminate her job because of the restructuring. The president reassured her that she would always have a job with the bank, given that she was a star employee. That turned out not to be true.

The next day, the president attended a meeting with his leadership team and the outside consultant. The consultant recommended eliminating Emily's position and combining it with another position that was currently not filled. Participants in the meeting agreed and decided they would post the position internally first. The president said that Emily would be well qualified for the new position. At this point, a brash new vice president of finance said that a younger woman who reported to Emily would be good in the position. He added that she was younger and without children and thus "cheaper." The president said that he was reluctant to let Emily go given her strong work product. He also said that he felt bad firing someone who just gave birth to a child with Down syndrome. The young VP jumped in, saying, "Oh, man. She had a disabled child? Do you know how much that will distract her from work? I mean, I feel for her. But we have a bank to run." The president thought for a bit and said, almost to himself, "Yes, I bet she will need a lot of time off in the coming years. . . Okay, but someone else has to take care of this. I can't do it. And make sure we offer a good severance."

The new vice president called Emily in the next day. He told her that her position was being eliminated due to the restructuring. Emily, stunned, asked whether she could apply for a different position in the bank. The VP said that there was a new slot being created and that she was welcome to apply, but that she probably wouldn't be a good fit, adding that the schedule would be inflexible and therefore incompatible with her need to take leave to take care of her child. Emily responded that she didn't know where he got that idea; she had arranged childcare and would not require any additional leave just because she had a child with special needs. The VP said that Emily was welcome to apply but that if she agreed not to, the bank was prepared to offer her severance to include one year's salary. Fighting to hold back tears, Emily said, "I don't want severance. I want my job. I love what I do." The VP, showing no emotion, said, "Right. Well the deal's on the table for 48 hours. No extensions. I suggest that you take some time to think about your options."

So, what are those options? Did the bank do anything illegal? We'll reveal the answer in our next post.

May 15, 2014

What Is Illegal (and What's Just Bad Behavior)?

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There are many, many federal laws that protect employees (including at-will employees). Below, I've provided a series of descriptions that will serve as a place to get started as you determine whether to file a lawsuit.  

Discrimination

  • Race: An employer cannot take any action against you on the basis of race, nor can it treat a person differently than other employees on the basis of race. For instance, an employer cannot only promote white males over black males.
  • Sex: An employer may not treat an employee in a different way based only on that person's sex. For instance, an employer cannot prevent women from applying to a certain position because the employer thinks the tasks are "a man's work."
  • Sexual orientation: Sexual orientation is not protected under federal law; however, it is a protected status in some states, including the District of Columbia.
  • Pregnancy: Pregnancy discrimination is a form of sex discrimination and is prohibited by the Pregnancy Discrimination Act. Under this Act, an employer cannot make an employment decision based on a stereotype of the capabilities of pregnant women: for instance, refusing to promote an otherwise qualified pregnant woman based on a belief that a pregnant woman will not return to work because "all women want to stay home with their kids."
  • Caregiver: No one particular statute protects those who are subject to discrimination because they have caregiver responsibilities. But there are a number of laws that together do provide such protections. For instance, the Family and Medical Leave Act (FMLA) protects both women and men who need to take leave to care for a child or a family member. The Americans with Disabilities Act (ADA) protects from discrimination those who provide care to disabled family members. Title VII of the Civil Rights Act prevents discrimination on the basis of any sex stereotype, and it applies to both men and women. This means that an employer cannot deny leave to a man to care for his child because "that is something his wife should do."
  • Improper treatment related to disability--failure to accommodate: The Americans with Disabilities Act (ADA) protects those with disabilities from discrimination at work. Just because you are sick or have a medical problem does not mean that you are covered by the Act. Instead, you must have a disability that interferes with a "major life activity," such as walking, breathing, or seeing. If so, the law requires your employer to provide "accommodations" to you so that you can continue to do your job. This is a very complicated area of law. If you believe you may be covered by the ADA and need your employer to make changes to your job duties, write a letter to your superior requesting "reasonable accommodations" and be specific about the changes that you need. Then make an appointment to see a lawyer. 
Medical Leave

The Family Medical Leave Act (FMLA) applies to any employer with at least 50 employees within a 75-mile radius (see why you need an attorney!). For covered employers, employees that have worked at least 1,250 hours over the past year must be allowed at least 12 weeks of unpaid leave to take care of their own medical needs or those of a family member. The District of Columbia Family and Medical Leave Act has a broader reach: it provides 16 weeks of leave and applies to employers with 25 employees. 

Overtime 

Failure to pay overtime is fairly straightforward compared to discrimination law. If you are an hourly employee, you may very well be covered by the Fair Labor Standards Act (FLSA), which requires that your employer pay you for any amount of overtime. Failure to do so can result in your employer having to pay DOUBLE the amount owed to you. 

Retaliation 

For many of the claims discussed above, an employer violates the law if it takes action (retaliates) against you if you attempt to assert your rights. Often, it is easier to prove a retaliation claim than it is to prove the underlying violation. For instance, if your boss sexually harasses you and you report it to HR, only to turn around and have your boss fire you, that is most likely sufficient to raise a claim of illegal retaliation. You can win a case for retaliation even if you are unable to actually prove that you were sexually harassed. 

Defamation 

This also occasionally comes up in the employment context. It can occur if a co-worker or your boss says something false that damages your reputation and causes you harm. These cases are difficult, and you should consider one only if the statements against you are particularly damaging--e.g., falsely accusing you of sexual misconduct or theft--and if you have damages: that is, if you lost your job or suffered other financial harm as a result of the statement. Remember that truth is an absolute defense to defamation, so it doesn't matter how embarrassing or hurtful the statements are. If they are true--or even arguably true--it isn't defamation. Be careful, because defamation claims are sometimes also brought by employers against employees--sometimes as a counterclaim (that is, to harass) an employee who has sued. 

I strongly advise you to consult an attorney to determine whether any of these laws apply to you.

May 9, 2014

What Does Wrongful Termination Look Like?

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Below are examples of legal, even if unfair, terminations. Keep in mind, however, that you might still have a case if the reason for termination offered by your employer is a lie.

Example 1

You work in a sales position for your company that involves managing five junior sales executives. You have no employment contract with your company and are an at-will employee. Your numbers are consistently good, but you have experienced a few problems with underperforming junior sales executives. However, this is not your fault because, even though you have management authority, you cannot hire or fire: that task is left up to your boss.

At your year-end review, you are told you are being let go because, although you are a great salesperson, you lack management potential. You later learn that you were replaced by a junior salesperson with inferior numbers, and he happens to be your boss's golfing buddy.

You go to a lawyer, wondering whether this is wrongful termination.

Answer: While this termination is certainly "wrongful," it is not illegal. Employers are entitled to be wrong about your abilities and to make (within reason) dumb employment decisions.

But what if...we assume the same situation above, but now you had just returned from maternity leave when your boss fired you. He later told a co-worker that although you were a great salesperson, "a nvew mother really needs to be home with her kids, not putting in 40 hours a week here. Plus, I know she's married. The man of the house should be the one to bring home the bacon."

Answer: This is a different situation. Here, the employer's real reason for firing you--stereotypes based on gender--is illegal.

Example 2

You work as an administrative assistant in a large nonprofit organization and are paid an hourly rate. Your boss is, well, strange. You have no written contract with the company and are thus "at-will." On Monday, you come to work wearing a blue shirt. Your boss calls you in and says that he is uncomfortable with you and for that reason you are fired. Is this illegal? 

Answer: Strangely, no. In an at-will relationship, an employer can fire you for any reason, provided it is not unlawful.

But what if... we assume the same facts. When talking to your lawyer, it comes out that you were paid for 40 hours of work per week, but your boss often required you to work 50 hours a week or more while instructing you to only put 40 hours on your time sheet. Because you loved your work, you complied so you could keep your job. Is this illegal? 

Answer: Yes. It is not illegal for your boss to fire you for wearing a blue shirt, but it is illegal to require you to work without pay.

Example 3

Your boss is a blowhard. He constantly complains and yells. You find this unprofessional and tell him so. Your boss doesn't say anything, but the next week, you find your workload doubled. You complain to the boss, but nothing happens. This continues for weeks. Unable to keep up with the increased workload, you miss some deadlines. Your boss calls you to his office, puts his feet up on his desk, and fires you with a big grin on his face. Is this illegal harassment? 

Answer: Unfortunately, no. Your boss is a jerk, but that is not illegal.

But what if... Assume the same facts, but that you have an employment contract with the company stating that you can only be fired for gross misconduct, to include fraud. Is it illegal now? 

Answer: Maybe. It could be under this situation that you have a case for breach of contract because you were not really fired for cause.

May 1, 2014

Do I Have a Case That I Can Win?

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This is the most obvious question, and it is impossible to answer with certainty, even for experienced lawyers. However, it is possible to make an educated guess about your chances of success.

Here are some factors that an attorney will consider:

Did Your Employer Do Something Unlawful?

Sometimes it is difficult to determine whether your employer actually violated the law. (As you may know, your employer can behave badly without violating the law. So, you may very well have been mistreated but still do not have a case to bring to court.)

Do You Have an Employment Contract?

The next thing to determine is whether you have an employment contract. If so, you need to see whether the contract provides you with any protection. For instance, the contract may provide that you can only be fired "for cause." The contract may also control other matters that will affect whether and what type of severance agreement you can get.

But, if you are like most employees, you do not have a contract. You are what is known as an "at-will" employee. That means your employer can fire you for any reason---such as, your boss doesn't like your attitude, your work, or the color of your shirt---as long as the reason is not in violation of federal or state law.

Does the Reason Violate Federal or State Law? 

Many federal laws---for instance, ones that protect against race and sex discrimination---require that an employer have a minimum of 15 employees before they even apply. So, if your employer has 14 employees, federal law does not protect you. 

However, the state you live in may provide additional protections. For instance, while there are generally no additional protections provided to employees in Virginia, both D.C. and Maryland have laws that protect employees subject to discrimination. Note that in states with laws that protect employees, you can bring a lawsuit under both state and federal law.

Once your lawyer has the answers to these preliminary questions, he will be in a position to give you better advice as to whether you might have a shot at prevailing in court.

April 24, 2014

How to Negotiate a Severance Agreement

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If you are negotiating a severance agreement--and you may have to request one because your employer may not offer it--here are some things to consider.

1. Show me the money.

The obvious reason for negotiating a severance agreement is to obtain money. There is no hard and fast rule about how much you could get. Except for very high-level positions, the general rule is one week of salary for every year of service. You can get more if your company believes it is avoiding a lawsuit. All severance agreements include a broad release by you of all claims that you might have against your employer. This, in essence, is what the employer is "buying" with the severance agreement. If you have a potential claim against the company, the value of the release increases. Of course, raising a potential claim is a delicate issue. It could get you a higher severance agreement, but it may also result in burned bridges with your former employer. This is also one area in which bringing a lawyer to the table can help. If you are asserting that you have claims against the company, it is more likely to take you seriously if you have counsel.

2. Be a consultant.

Some companies are reluctant to characterize any money paid to you as a "severance" agreement. One way around this is to offer to be a "consultant" to the company, essentially doing your same job, for a period corresponding to the amount of severance. In most cases, the company will not actually want you to do any work, so the payment will in effect be a settlement agreement. Of course, consider the tax consequences of any such agreement. Payments pursuant to such an agreement will almost certainly be considered wages, and you will have to pay taxes on them.

3. Watch out for taxes. 

Watch for any provision that will require you to indemnify the company for any tax consequences of the settlement. What this means is that the company wants you to pay its lawyers if the IRS comes after the company claiming it should have characterized the settlement as wages and withheld taxes. There are limited circumstances in which it may be advisable to agree to such a provision, but as a general rule, this is not a good idea because it could result in a legal bill from the company that exceeds the amount of settlement.

April 17, 2014

5 Tips for Finding the Right Lawyer for Your Case

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Employment law is highly technical. Winning an employment law case requires knowledge of case law, statutory law, constitutional law, and regulatory law. There are rarely simple employment cases.

Therefore, you need to retain someone who knows what they are doing. Here are five ways to find the right lawyer for your case:

  1. The lawyer should advertise himself as one who represents employees as opposed to, for instance, an attorney who describes himself as a general litigator. 
  2. Look for a lawyer who puts his advertising dollars where his mouth is; that is, the attorney should do more than simply say he does employment law. He should have written about the topic and have information to give you about employment law. 
  3. The lawyer should be able to tell you about employment cases that he has successfully litigated in the recent past. 
  4. The lawyer should have experience in the particular area in which you need help. A breach of contract case in Virginia is very different from a race discrimination case in DC. 
  5. The lawyer should have trial experience. Defendants are more likely to offer favorable settlements if they believe your attorney will take your case to trial, if necessary. However, extensive trial experience is not necessary. Civil cases, like employment cases, most often settle before trial. If it came down to it, I would choose the experienced employment lawyer over a seasoned trial lawyer without employment law experience.

April 10, 2014

How Do Lawyers Charge Their Clients?

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Employment lawyers get paid in various ways. Today I'll describe five of the most common.

1. Hourly

The most traditional way lawyers bill in any practice is by the hour. Rates in this area vary but can range anywhere from $250 to $500 per hour. The advantage of this type of system is that the lawyer gets paid only for the time he or she works on your case. The disadvantage is that the bill for any particular month will be unpredictable.

2. Retainer Payments

Many lawyers who bill hourly require what is called a retainer. This is a down payment by the client toward future fees. The client gives the lawyer a sum of money, which the lawyer deposits into a trust account. These funds still belong to you, the client. The lawyer will deduct funds from the trust account, according to an agreement with you, as he works on your case. An "evergreen" trust account is one that, by agreement, you must replenish when the balance of the account drops below a certain amount. The amount you put in the trust account is chosen by the lawyer. Generally, the more complicated the matter (for instance, matters in active litigation), the bigger the retainer.

3. Contingency 

Contingency fee agreements are those in which the lawyer collects fees only if you win: that is, his fees are "contingent" upon your success in either settlement or trial. Generally, a lawyer in these situations gets a third of the money that you win. So, if you settle your case for $10,000, the lawyer would get $3,330, regardless of how much work the lawyer has put into the case. These fee agreements are the norm in physical injury cases. The advantage to these fee arrangements for the clients is clear: you don't have to pay anything unless you win. The disadvantage is that you may end up paying more to the lawyer than you would have if you paid hourly. For instance, let's use the example above and assume you win $10,000. Let's also assume that your lawyer spent five hours total on the case and charges an hourly rate of $300 per hour. Under a contingency fee arrangement, you pay $3,300, but if you paid hourly, you'd pay less than half of that amount: $1,500 (5 x $300). Another disadvantage to contingency fee arrangements is that lawyers who use them are (understandably) very careful to take only those cases that have a good chance of success. Thus, a lawyer who bills on contingency may not take your case simply because it has a good, but not great, chance of success. Some employment lawyers bill on contingency, though many do not given the uncertain nature of employment litigation. 

4. Contingent Hourly Billing 

This is a variation of the straight contingency case. In these cases, like straight contingency cases, clients do not pay their attorney unless they win at trial or receive a settlement. Unlike a straight contingency fee case, the lawyer keeps track of his hours and bases his fee on an hourly rate rather than on the percentage of the win. Thus, if you win $10,000 and the lawyer has billed five hours at $300 per hour, he gets $1,500. But if he has billed 20, he gets $6,000. These arrangements apply only when there is a "fee-shifting" statute. That is, a statute that allows a court to award attorneys' fees to the winner. In an employment context, this means that, if you sue your employer and win, the employer must pay its attorneys' fees AND yours. Discrimination and civil rights statutes often have fee-shifting provisions. Fee-shifting does not apply to breach of contract and defamation cases. Thus, if you win one of these cases, you must pay your own attorneys' fees. 

5. Mixed Hourly/Contingent

This is an arrangement in which the client pays a portion of the hourly rate with the rest to be recovered only if the case settles or if there is a victory at trial. For instance, if your attorney's hourly rate is $300, a mixed contingency arrangement might be an agreement by which the client pays $200 per hour with the attorney collecting the remaining $150 at settlement or trial, plus a percentage of the winnings, though less than the third in a full contingency case. Your attorney will generally choose the arrangement that will work best after reviewing your case and paying close attention to the likelihood of achieving settlement or victory at trial. That is, the attorney will determine the risk of losing the case. Cases are expensive to litigate, both in terms of cost and attorney time. An attorney will not take on a case on full contingency---and bear all the risk of loss---if you have a weak case. However, an attorney may take such a case if the client is willing to bear all of the risk by paying a straight hourly rate.