by Stephen D. Hans | Jul 29, 2024 | Retaliation and Whistleblower Claims
What Employers Need to Know to Avoid Potential Liability Under federal law and in many states, most workers have protection against termination or other adverse employment consequences when they have exercised a legal right to disclose wrongful or unethical actions by an employer. The federal whistleblower and anti-retaliation statutes may be enforced by five different federal agencies: The Occupational Safety and Health Administration (OSHA) The Mine Safety and Health Administration (MSHA) The Office of Federal Contract Compliance Programs (OFCCP) The Wage and Hour Division of the U.S. Department of Labor The Veterans’ Employment and Training Service (VETS) How Is Retaliation Defined under Federal Law? An act may be considered retaliatory when an employer or representative of the employer (owner, administrator, supervisor or manager) terminates a worker or engages in any other action that can reasonably be considered to bring about an adverse consequence in the workplace when the action is motivated by the employee’s engagement or participation in a protected activity. What Constitutes an Adverse Action under the Federal Statute? The courts have construed an action to be adverse if it would persuade a reasonable employee not to express concerns about a potential wrongful or unethical act, or would persuade a worker not to engage in some protected activity. What Are Protected Activities under the Federal Whistleblower Law? Though the different agencies enforce an employee’s right to engage in different activities, as a general rule, employers must not engage in retaliation when an employee: Reports conduct that he or she reasonably believes to be in violation of federal law Assists or participates in an investigation of any activity reasonably...
by Stephen D. Hans | Jul 18, 2024 | Wage and Hour Compliance
The Requirements Placed on Employers The Fair Labor Standards Act (FLSA) provides substantial federal protections for workers, including guarantees with respect wages and hours. Though an employer need not willfully engage in violations of wage and hour laws to have liability, the potential sanctions for willful infringement of an employee’s federal rights can be severe, including criminal prosecution. What Are the Basic Wage Protections under the FSLA? The Fair Labor Standards Act establishes a federal minimum wage for non-exempt employees. The current federal minimum wage, which has remained unchanged for 15 years, is $7.25 per hour. All but five states (Alabama, Mississippi, Louisiana, Tennessee and South Carolina) have enacted their own minimum wage laws. Most have minimum wages higher than the federal rate. Two (Georgia and Wyoming) have rates below the federal minimum and seven simply adopt the federal minimum wage. Nonetheless, the federal minimum wage overrides state law when the state law falls below federal minimum wage. What Are the Basic Hour/Overtime Protections under Federal Law? The Fair Labor Standards Act also requires that employers pay overtime to any non-exempt worker who puts in more than 40 hours during a week. Overtime pay is set at 1.5 times the regular hourly rate. How Is an Exempt Employee Defined? A wide range of employees may potentially be exempt from the provisions of the Fair Labor Standards Act: Executive, administrative, professional and outside sales workers earning more than $23,600 per year Many commissioned salespeople Some computer professionals Workers on small farms Employees of seasonal and recreational businesses What the Fair Labor Standards Act Does Not Require Though the FLSA affords...
by Stephen D. Hans | Jul 8, 2024 | Workplace Discrimination and Harassment
How Employers Can Minimize the Risk of Liability Under both state and federal law, employees have the right to be free from discrimination or harassment in the workplace. As an employer, it’s important to understand that the wrongful conduct need not be intentional. Furthermore, when an employee alleges either discrimination or harassment, you need to be extremely careful in your response, so that you avoid any additional allegations of wrongful retaliation. What Constitutes Workplace Discrimination? As a general rule, an employer may not engage in conduct that treats one employee differently from another employee, based on what the law refers to as a “suspect classification.” What Qualifies as a Suspect Classification? A suspect classification is essentially a characteristic or trait of the victim that cannot be changed. As the law governing workplace discrimination has developed, Congress and state legislatures, as well as the courts, have identified a number of suspect classifications: Gender Race, color or creed Disability Age National origin Gender identity or sexual orientation Religion Pregnancy Status as a protected veteran How Is Workplace Harassment Defined? Harassment in the workplace is generally based on the same suspect classifications, but involves different behaviors. The conduct most often associated with workplace harassment is offensive language, pictures or objects, including jokes, songs and nicknames. It may include name-calling, as well as physical threats or assaults. With respect to some types of workplace harassment, such as sexual harassment, it can also involve quid pro quo offers of a workplace benefit for capitulating to an unlawful demand, or threats of a workplace penalty for failure to comply. Does Your Employee Have to Notify...
by Stephen D. Hans | Jul 1, 2024 | Disability Claims
Employers in New York City See More Disability Claims Filed Using data obtained from an American Community survey, the New York City Comptrollers Office has determined that the rates of disability among workers, which had been gradually decreasing in the last few years of the 2011-2020 decade, have returned to or exceed previous levels for most types of disabilities. Officials say the trend was similar across the country, though more pronounced in New York City. Researchers say the number of disabled workers, ages 24 to 55, jumped dramatically from 2019 to 2022, increasing about 25%, from 6.1% to 7.6%. They also looked at a number of specific disabilities: Disabilities involving cognitive challenges—This particular disability saw the greatest increase as a consequence of the coronavirus pandemic, an increase of more than 33%, from 2.8% of all workplace disability claims to 3.8%. Officials say this makes sense, as the most common symptoms of the so-called “long COVID” have been brain fog and fatigue. An inability to live independently—From 2016, when the first data was available, until 2019, this demographic dropped about 10% to 2.3%. By 2022, though, it had risen to approximately 2.6% of all claims. Disabilities with ambulatory limitations—In 2016, 3.3% of work-related disabilities in New York City involved difficulties walking or otherwise getting from one place to another. By 2019, they had dropped to 2.8%, but in 2022 had come back to 3.1%. According to one study (by the Federal Reserve Bank of New York), there may be as many as a million new disabled workers nationwide. Employers in New York need to be cognizant of the potential for...
by Stephen D. Hans | Jun 30, 2024 | JUUL Labs to Pay $462 Million for Role in “Epidemic”
JUUL Labs to Pay $462 Million for Role in “Epidemic” JUUL Labs Inc., the California-based company that has been a leader in the electronic cigarette (e-cigarette) and vaping market, has agreed to pay nearly half a billion dollars to settle a multidistrict federal lawsuit that included litigation file by New York State Attorney General Letitia James in 2019. According to James, about one-quarter of the settlement will go to the state of New York. The lawsuit originally filed by James alleged that JUUL intentionally marketed an unsafe product to minors. They also contended that, though JUUL’s product was addictive (containing nicotine), the company included no product warnings from its introduction into the market in 2015 until 2018. James likened the actions of JUUL to those of many big tech companies, which she said have “fueled a mental health crisis among young people with…addictive products…” She noted that, when JUUL introduced its products to the market, underage vaping increased dramatically. James said that the settlement funds in New York will be used in communities and schools to provide education about the real consequences of vaping. The money will be distributed to all counties, to the Board of Cooperative Educational Services, and to the five largest cities in the state. In addition to the monetary award, the settlement also requires that JUUL ensure that its products are found and displayed behind the counter in any retail establishment, and that consumers only be allowed to purchase JUUL products after appropriate age verification. The settlement also: Prevents JUUL from engaging in marketing that directly or indirectly targets minors Limits the amount of product...
