Archive for April, 2008

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Employee Retirement Income Security Act (ERISA)

Tuesday, April 29th, 2008

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension plans, health plans, and employment-related compensation within private industry.

You may have a claim for a violation of ERISA if:

  • You  were  wrongfully denied health  benefits that are/were  offered  through  your  employer;
  • You were retaliated against for questioning or testifying about employment related compensation or benefits;
  • You were terminated by your employer to prevent you from obtaining specific employment benefits (i.e. vesting pension);
  • You were not provided severance in accordance with a well-defined severance plan/policy of your employer;
  • A misrepresentation was made by your employer about your employment benefits; or,
  • You were wrongfully denied requested information related to your employment benefits.   

The types of claims discussed above are not intended to be an exclusive list of possible claims under ERISA, but rather, representative of some common claims. ERISA is a complicated area of federal law that provides very specific remedies depending on the type of violation alleged.  An employee or former employee must also, in many cases, exhaust certain administrative remedies before bringing such a claim.  

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Disability Discrimination

Tuesday, April 29th, 2008

Under federal law, a “disability” is a physical or mental impairment that substantially limits one or more major life activities. The Americans with Disabilities Act (ADA) prohibits discrimination against disabled individuals in employment as well as in public services, public accommodations and in public transportation.

The employment provisions of the ADA prohibit employers from discriminating against qualified employees with disabilities in all aspects of employment including application procedures, hiring, advancement, compensation, training and discharge.   
         
Employers are required to provide reasonable accommodations for a qualified individual with a disability if requested. The employer must engage in an interactive process with the employee to help determine what reasonable accommodation is feasible for the employee.     

Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.

Every case that involves the ADA is fact specific.  The ADA only protects certain individuals with certain medical conditions.  State laws also protect individuals with disabilities, and in some states (including New Jersey), much more protection is available than provided by the ADA.

If you have been denied a reasonable accommodation, treated adversely because of your disability or because your employer believes you are disabled, you should consult an experienced employment attorney.  By consulting an experienced employment attorney, you will learn whether you may be protected and what type of remedies are available.

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Religious Discrimination

Tuesday, April 29th, 2008

Employers may not be familiar with their obligations concerning an employee’s religion or religious practices.  Under federal anti-discrimination laws, religion does not mean only mainstream or organized religions.  Rather, an employee need only have a religious belief, common or uncommon in the community, that is sincerely held.

There are essentially two kinds of religious discrimination recognized by federal law.
 
(1) Failure to make a reasonable accommodation:

Once an employee notifies his or her employer that a bona fide religious belief conflicts with a job requirement, the employer must make reasonable efforts to accommodate the employee.  An employer’s failure to enter into an interactive process with the employee and/or failure to reasonably accommodate an employee may violate federal or state law.  Most common accommodations sought by employees are certain days off or time off during the day (often for prayer breaks), not to have to shave, and to be permitted to wear religious garments.
 
(2) Religious harassment/disparate treatment:
 
It is generally  illegal for employers and/or coworkers to discriminate, harass, or in any way alter the terms and conditions of an employee’s employment (including termination) because of an employee’s religious beliefs.  Employees also cannot be forced to participate in religious activities.     
 
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on religion or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII of the Civil Rights Act of 1964.

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Age Discrimination

Tuesday, April 29th, 2008

The Age Discrimination in Employment Act (ADEA) and various state laws make it illegal for employers to make decisions that are motivated by an employee’s age.  Federal law limits age related lawsuits to persons who are 40 years of age or older.  However, other states such as New Jersey provide broader protections.
 
There are different legal standards and different levels of proof required depending on whether an employee is allegedly part of a reduction in force, terminated, not hired, or subjected to other adverse actions while still employed.  But one thing remains the same regardless of the type of adverse action that is premised upon an individual’s age, it is illegal. 
 
Many actions by an employer can indicate that age was a motivating factor in a decision that affected an employee or multiple employees. For example, references such as “grandpa,” “pops,” “old-timer,” or being stereotyped as slow or unable to learn new tasks (tricks) are all indicators of possible age discrimination.  Often times there are indications of age discrimination when an employee has been loyal and dedicated to an employer for a long period of time but is terminated or subjected to disparate treatment (along with other older employees) by a new supervisor or manager.

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Racial Harassment/Discrimination

Tuesday, April 29th, 2008

Almost any decision an employer makes that is premised on an employee’s race that adversely affects the employment of an employee creates a viable cause of action for race discrimination.
 
Federal law (as well as many state laws) prohibits employees from being subjected to harassment because of their race (the use of racially offensive language / innuendos and graffiti).  It is also illegal if an employee is terminated, demoted, not advanced within the company, or not hired because of his or her race.
 
Federal law extends protection to every race to prevent such unlawful practices. 

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on race or color, or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII of the Civil Rights Act of 1964.

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Sexual Harassment

Friday, April 25th, 2008

There are basically two kinds of sexual harassment recognized by federal law:
 
(1) Hostile-work environment sexual harassment – This kind of harassment occurs when an employer or agents of the employer (manager or non-manager) subject an employee to unwelcome sexual behavior (physical or verbal).  A hostile work environment can exist if the unwelcome actions are severe or pervasive. 
 
(2) Quid pro quo sexual harassment – This kind of harassment occurs when an employer or agents of the employer place terms and conditions of an employee’s continued employment on the return of sexual favors. 

Sexual harassment can occur in a variety of circumstances, including but not limited to the following: 

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

  • The harasser’s conduct must be unwelcome.

It is usually helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should generally use any employer complaint mechanism or grievance system available.

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Wrongful Termination

Friday, April 25th, 2008

Generally, at-will employees can be fired for any reason or no reason.  There are several statutory exceptions to the at-will employment rule though.  For example, at-will employees generally cannot be terminated because of their age, race, sex, religion, disability, for taking a qualified medical leave, for objecting to a polygraph test as a condition of employment, for serving on a jury, for fulfilling military duties if employed by the military, or merely for having a criminal conviction. 

A. Contracts

Employees may also have legal recourse if they had a contract for employment that was breached by their employer (or are part of a union).  Even in the absence of an express contract, there are rare occasions when an employer’s handbook (or other documents) may create contract rights.
 
B. Public Policy Exceptions

Employers are not permitted to terminate employees if the termination will violate important and established public policies.  For example, state and federal employees cannot be terminated for making or refusing to make certain statements of public concern.  In many situations, it is also generally illegal to terminate or punish an employee for seeking worker’s compensation or unemployment compensation, for reporting safety violations in the workplace, and for refusing to engage in or commit a crime.
 
The above information does not represent an inclusive or a complete list of grounds for wrongful termination.  Many state laws, such as New Jersey’s Conscientious Employee Protection Act, provide far broader protections to at-will employees. 

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Severance Packages

Friday, April 25th, 2008

Employees should usually have proposed severance packages reviewed by an experienced and knowledgeable employment attorney.  Employees may be waiving claims they are not aware they are waiving, and more importantly, are not required to waive.  In certain instances, a proper evaluation of the circumstances surrounding a former employee’s termination or separation will reveal that it may be more appropriate to pursue legal recourse instead of waiving potential claims.
 
Severance packages are being offered by employers more and more these days.  Employer’s generally offer severance packages for many reasons, including to prevent litigation, to prevent adverse publicity, to prevent employees from diverting present clients, general company policies of fairness, or because a company is obligated to pursuant to company documents or a handbook.  Not only might an employee be waiving rights he or she should be entitled to maintain, but an employee may be acquiring new and unfair obligations as a result of signing a severance agreement.

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Another Sc**w Job By a Disability Insurance Company

Wednesday, April 23rd, 2008

Some of the major disability insurance carriers will stop at nothing to keep sticking it to claimants.

Its tax time and the insurance companies are sending 1099’s to those with whom it entered settlements last year.

At least one company is telling the IRS, via the 1099’s that the settlements are taxable benefits, even if the benefit itself was not taxable! If you are getting disability benefits and you paid the premium for the policy, then any benefit you get is non-taxable. That’s straight up federal tax law.

A major company is taking the position that “yes, you are right but since this is a settlement we are going to report it to the IRS as taxable.”

Pure, outright fraud on the part of this company. The disabled insured is left paying more attorney and CPA bills to straighten out the mess…all because this major insurance company is either stupid as all get out or mean as the devil.

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Doctor Called “Immediate and Serious Threat To Public Health”

Wednesday, April 23rd, 2008

Finally, a state getting serious about a doctor with a history of inadequate care.

The board of medicine in Boston, Massachusetts has suspended an ob-gyn with a alleged history of serious malpractice complaints, calling her an “immediate and serious threat to public health.” Dr. Suzanne B. Rothchild’s medical license was suspended after the board reviewed nine cases that alleged inadequate care by her.  According to court records. Rothchild has been accused of medical malpractice 12 times since 1993.

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