More Workers Eligible for Overtime in the Future

On March 13, President Obama signed an order authorizing the Labor Department to examine ways to expand the number of workers eligible for overtime pay. According to the President, businesses are classifying too many employees as “professional” or “executive,” thereby excluding them from overtime pay. The President stated that “[m]illions of Americans aren’t getting the extra pay they deserve.” The order is part of the Administration’s effort to address the nation’s income gap; the President is also urging Congress to raise the federal minimum wage from $7.25 per hour to $10.10.

Overhauling the current rules could be a long and politically-charged process. In 2004, the Bush Administration increased the salary limit to qualify for overtime to $455 a week, following nearly two years’ worth of political maneuvering. The business community, including the U.S. Chamber of Commerce, has already expressed concern that making more workers eligible for overtime pay could lead to reduced staff or pay cuts. “Changing the rules for overtime eligibility will, just like increasing the minimum wage, make employees more expensive and will force employers to look for ways to cover these increased costs,” said Marc Freedman, the executive director of Labor Law Policy at the U.S. Chamber of Commerce.

While change is likely on the horizon, employers should make sure that their current overtime policies are aligned with the law. For more information on the current overtime regulations, check back on Wednesday.

Chad Hopkins

 

 

 

W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

 

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The ADA & Web Accessibility

On March 6, the U.S. Department of Justice announced that a consent decree with H&R Block had been entered requiring the company to establish accessibility of its websites and mobile apps under the Americans with Disabilities Act. The decree resolves the department’s allegations that individuals with disabilities are denied full and equal enjoyment of the company’s tax-preparation focused goods and services provided online.

The Department of Justice intervened in the suit filed by the National Federation of the Blind and two plaintiffs against the company. While H&R Block does not admit liability, under the terms of the decree they will pay $22,500 to the plaintiffs and a civil penalty of $55,000 to the DOJ. In addition, the company agreed to implement a number of changes, including hiring a skilled web accessibility coordinator, adopting a web accessibility policy, and evaluating employee and contractor performance based on successful web access programming.

The suit was brought pursuant to Title III of the ADA, which prohibits discrimination on the basis of disability by public accommodations in the full and equal enjoyment of goods, services, facilities, privileges, advantages and accommodations. Up until now, courts have been split about the extent to which Title III of the ADA applies to websites operated by places of public accommodation. While this suit was brought pursuant to Title III, employers should take note of the decision and how it relates to Title I, which governs discrimination related to employment. The H&R settlement serves as a reminder that disability-related discrimination no longer just occurs in real life, but also online.

Employers subject to the ADA (those with 15 more employees) are required to make reasonable accommodations to individuals with disabilities in order to enable them to participate in the workplace. The accommodation process starts before employment even begin. Employers must make sure that if they promote a job or allow for an online application process that their website is accessible to those who may have hearing impairments, low vision or blindness, motor or neurological disorders. An organization called the World Wide Web Consortium has developed Web Content Accessibility Guidelines, commonly referred to as WCAG 2.0, that can serve as technical standards for making internet content accessible to the disabled.

No longer is it enough for an employer to make a building ADA accessible; they must also make their online presence accessible, too, for both employees and private citizens.

Cindy Effinger

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

This article is intended as a summary of  state and federal law and does not constitute legal advice.

 

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“Sex-Plus” Discrimination Equals Possible Liability, Part II

On Monday, we discussed the Shazor v. Prof’l Transit Mgmt., Ltd. case. The Sixth Circuit held that an African American woman had triable race and sex discrimination claims under Title VII even though she was replaced with a Hispanic female. In other words, in a “sex-plus” case such as Shazor’s, an employer is not permitted to undermine a black female’s prima facie case by showing that “white women and African American men received the same treatment” as the plaintiff.

Once the court found Shazor had established a prima facie case of discrimination, PTM argued that it had a legitimate, nondiscriminatory reason for firing Shazor based on the alleged lies she made.  The court ruled that Shazor raised a material factual dispute about whether this reason was pretextual (meaning, that the nondiscriminatory reason offered by PTM was really just given to cover up their true motives), and that the company could not avail itself of the “honest belief” doctrine because it failed to adequately investigate Shazor’s alleged lies.

There are several lessons to be learned from Shazor. First, discrimination claims can be based on an intersection of two or more protected categories.  For employers, this means that they should take precautions to ensure employment decisions are based on legitimate reasons – not discriminatory intentions..

Second, employment decisions should always be well-supported by reasonable investigation. Shazor’s supervisor, Tom Hock, spoke to only one person about Shazor’s alleged lies, and this single conversation did not establish sufficient facts about the truth (or lack of it) behind her statements. Had Hock conducted, and documented, a more thorough investigation, PTM may have been able to prove a legitimate, nondiscriminatory reason for firing Shazor.

Lastly, and this should really go without saying by now, but watch what you put in emails! Shazor successfully argued that the emails referring to her as a “helluva bitch” and a “prima donna” were really code for “angry black woman” or “uppity black woman.” Although workplace emails are increasingly replacing face-to-face conversations, management should never put something in writing that they would not want to be introduced as evidence in court. Keep employee-related discussions private and, better yet, never use derogatory or discriminatory language when referring to employees.

Shazor signifies that intersectional “sex-plus” claims are viable in the Sixth Circuit and that employers can never be too careful when it comes to making adverse employment decisions.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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“Sex-Plus” Discrimination Equals Possible Liability

The Sixth Circuit recently addressed whether a “sex-plus” claim of discrimination can be made under Title VII of the 1964 Civil Rights Act. “Sex plus” refers to policies or practices by which an employer classifies employees on the basis of sex plus another characteristic, such as race or age. The case, Shazor v. Prof’l Transit Mgmt., Ltd., 2014 BL 42520, 6th Cir., No. 13-3253, 2/19/14, reinforces the concept that employers must consider employees’ protected traits as an “intersectional” whole, rather than separate, individual aspects.

The plaintiff, Marilyn Shazor, is an African American woman assigned by her employer, Professional Transit Management (PTM), to serve as the CEO of a regional transit authority (SORTA). After assuming the role, senior management officials began to question Shazor’s allegiance to PTM – rumors spread that she might be trying to get directly hired by SORTA.  Two PTM officials (Setzor and Scott) exchanged emails wherein they referred to Shazor as a “prima donna” and “one helluva bitch,” as well as disloyal and disrespectful.

Setzer was Shazor’s direct supervisor until August 2009, when he was replaced by Tom Hock.  In 2010, Shazor was fired by Hock for allegedly dishonest statements she had made to the SORTA board. PTM replaced Shazor with a Latina woman. Shazor then filed suit asserting race and gender discrimination. The District Court granted PTM summary judgment. On appeal, the Sixth Circuit reversed the lower court’s ruling.

The Sixth Circuit found that Shazor had established a prima facie case of discrimination necessary to survive summary judgment because she had shown that she was replaced by someone outside of her statutorily protected class with respect to her race discrimination claim. Although her replacement was of the same sex, Shazor’s sex bias claim “cannot be untangled from her claim of race discrimination.”

According to the Court, the protected classifications of race and sex “do not exist in isolation.” Rather, “African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.”

There is more to learn from this case – check back on Wednesday for a continued discussion of its implications.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice

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Unemployment Benefits Refresher, Part II

Earlier this week, I reviewed the prerequisites a former employee must meet in order to qualify for unemployment benefits.  Now let’s turn to what will disqualify an individual from benefits from receiving benefits.  Once the base qualifications to obtain benefits have been met, benefits may still be denied if the person admits to or it can be shown that the person did one of the following:

(1)        Voluntarily quit;

(2)        Refused to accept suitable work without good cause or apply for available work when directed by the Office of Employment and Training;

(3)        Is unemployed due to a strike or bone fide labor dispute;

(4)        Knowingly makes false statements to obtainbenefits; or,

(5)        Was discharged for misconduct.

Often an employer will want to challenge benefits that have been awarded to a former employee that they believe were rightfully terminated due to misconduct. To be able to defeat a claim for unemployment benefits under this category, an employer will need to show that not only did the misconduct occur, but also that the employee was aware that his actions would constitute misconduct. Some examples of workplace misconduct include, but are not limited to:

(1)        Falsification of an employment application;

(2)        Knowing violation of a reasonable and uniformly enforced rule of an employer;

(3)        Unsatisfactory attendance;

(4)        Refusing to obey reasonable instruction;

(5)        Damaging employer property intentionally or through gross negligence;

(6)        Reporting to work under the influence of drugs or alcohol.

The most basic way to keep unemployment compensation costs down is to have a good employee handbook in place which states clear employee expectations and which employees acknowledge receipt and understanding of in writing. If the employee then violates those policies it should be documented clearly in writing.  If the employee is subsequently fired for cause, he or she will be unable to claim ignorance as to what actions constitute misconduct and termination for cause can be proven.

If you are employer and would like to know more about challenging a claim for unemployment benefits, or need help in drafting a strong employee handbook, contact the labor and employment law attorneys at McBrayer today.

Luke Wingfield

 

 

 

 

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Unemployment Benefits Refresher, Part I

 A common administrative headache for employers is dealing with terminated employees who go on to seek unemployment benefits. While an employer has the right to challenge the award of unemployment benefits, choosing to do so requires careful consideration.  The process can be time-consuming and may require a commitment of more resources than one would like.  Additionally, challenging an award of unemployment benefits may serve to push a former employee into litigation that he or she may not have pursued otherwise.  That being said, if an employer has good documentation regarding a termination and clear, uniformly enforced employee policies, challenging a claim for unemployment benefits can be successful.

This post is meant as a brief refresher on the prerequisites to receiving unemployment compensation in Kentucky so that when a claim is made by a former employee a quicker decision can be made on whether to challenge that claim.

Monetary Requirements

To receive benefits a person must be out of work through no fault of his or her own and must file a claim. The person must also meet all the following monetary requirements:

(1)               Have earned at least $750.00 in wages during the quarter in which his/her wages were highest;

(2)               Have wages for the first four of the last five calendar quarters (the base period) totaling at least $750.00;

(3)               Have total base period wages at least 1½ times the amount made in the quarter in which wages were the highest;

(4)               His/her wages in the last two quarters of the base period must be at least eight times the weekly benefit amount.

Other Requirements

If the monetary requirements are met, the claimant must meet the following additional requirements to receive benefits:

(1)        Be physically and mentally able to work;

(2)        Be either totally unemployed or working less than full-time work and earning less than 1 ¼ times his/her weekly benefit rate (this may qualify one for partial benefits);

(3)        Be available for suitable work and making a reasonable effort to find employment;

(4)        Register for work with the Office of Employment and Training.

Contrary to popular belief, unemployment compensation is not something for which everyone qualifies. Check back on Thursday when I’ll offer a quick refresher on reasons why benefits can be denied.

Luke Wingfield

 

 

 

 

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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