Many employees worry that filing a workers’ comp claim will cause them future problems; they fear termination, employer retaliation, or even the inability to get hired at another company. Fortunately, there are legal protections available to injured workers. Although workers’ comp laws vary from state to state, most states prohibit the termination or demotion of an employee in retaliation for filing a workers’ comp claim. Massachusetts is no exception.

Some states specifically prohibit employers from refusing to hire someone due to a past workers’ comp claim. In Alaska, for example, employers “may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits [for workers’ compensation].” Similar provisions exist in Louisiana, Oregon, and Vermont. Although MA and many other states don’t have such specific language with regard to the hiring process, other protections are available to protect workers from being refused employment based on prior workers’ comp claims.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) prohibits any type of discrimination as it relates to the employment process. This includes hiring. As such, if you believe you were refused employment based solely on having previously received workers’ comp benefits, you may have a legal claim against the employer. It is also illegal to discriminate against an employee or job applicant because of a past or present disability. That being said, the ADA only applies to businesses with at least 15 employees. A Boston workers’ comp attorney can help you determine how to proceed if you’ve been injured on the job.

What is Retaliation?

Retaliation can take many forms, from a hostile work environment to outright termination. Some of the most common types of retaliation following a workers’ comp claim include:

  • Negative performance review
  • Failure to promote a deserving employee
  • Demotion
  • Pay cut
  • Workplace isolation or intimidation
  • Negative transfer or reassignment
  • Reduction in benefits or employment terms
  • Disciplinary action without cause
  • Negative employment references
  • Increase or decrease in tasks

In the list above, negative employment references are the most likely concern among job applicants who have previously filed workers’ comp claims. Another concern is the question—have you ever filed a claim for workers’ compensation? Since the law prohibits employers from asking potential employees about past or present injuries or disabilities, this question is usually a no-no. However, in some cases employers may perform a background check to determine if the potential employee has ever filed a claim. Continue reading

A new study conducted by the Society of Human Resources Management (SHRM) revealed that only 17 percent of employees admit to having witnessed sexual harassment, and only 11 percent say they were targets of sexual harassment. According to researchers, these low figures are common in surveys related to sexual misconduct. Those being surveyed may fear retaliation, or they may be ashamed, or concerned about victim shaming.

But there’s even more to it than that. Just like a victim of sexual harassment may struggle with how to describe what happened to them, and whether or not they should confront their harasser, witnesses may be equally unsure of how to approach the situation. In fact, according to Evren Esen, a former workforce analytics director at SHRM, only about 25 percent of witnesses ever report workplace sexual harassment. Determining whether to “blow the whistle” can be a complicated process.

“Regardless of whether it actually happens to you or whether you observe it, there is still a sense that reporting it is taking it to the next level,” says Evren. “It impacts the organization, the morale, and so on if this kind of behavior is just occurring and people don’t feel comfortable reporting it.”

Whistleblowing aside, witnessing sexual harassment can take a toll on an employee’s mental health just as it can harm the actual target. This is especially true if the witness has previously suffered any type of sexual harassment or abuse. A MA employment law attorney can help you recover damages if you’ve been sexually harassed at work.

Betrayal Blindness and Institutional Betrayal

According to Jennifer Freyd, a professor of psychology at the University of Oregon, witnesses to workplace sexual harassment can suffer from the two types of betrayal trauma common to victims—betrayal blindness and institutional blindness. In cases of betrayal blindness, the victim or witness may “forget” or block out harassment that is conducted by a trusted and respected colleague or mentor. Institutional betrayal occurs when a victim or witness loses their sense of trust in their workplace.

Even when employees try to avoid unpleasant situations involving other workers—keeping their heads down and ‘minding their own business’—they can still be negatively affected

“You’re still in a system that is dysfunctional and it’s going to take a toll on you for that reason,” says Freyd. “So it’s like being in a dysfunctional family—it’s costly to your well-being, just swimming in that system.” Continue reading

Last week, an ex-manager of a Chipotle Mexican Grill was awarded close to $8 million in a wrongful termination lawsuit against the restaurant chain. Jeanette Ortiz was accused of stealing more than $600 from a Fresno, California Chipotle in 2015. The alleged theft, which Ortiz’s supervisors claimed was videotaped, was never shown to Ortiz. Her supervisors said the video had been destroyed.

Following her termination, Ortiz filed a lawsuit. Last week, a California jury ruled that the former manager’s termination was in retaliation for a workers’ comp claim she had filed for a work-related injury. Ortiz claims to have suffered carpal tunnel syndrome while working at Chipotle. The Mexican fast-food restaurant was ordered to pay $7.97 million in damages, which includes $1.97 million in lost wages, and $6 million for emotional distress.

How Do You Know if Your Termination Was Legal?

If you’ve recently been fired from a job, and you think your termination was illegal, you may be entitled to compensation. But how do you know if the termination was legal or wrongful? The reality is, most employment is considered to be “at will,” which basically means that any employee can be fired at any time for any reason. That sounds like a blanket statement, but there is one major exception. If the reason itself is illegal, the termination is likely wrongful. An example of an illegal reason for termination would be if an individual is fired because of his race or religion. Such a discriminatory act is prohibited, and thus, would constitute a wrongful termination.

To win a wrongful termination case, however, one must be able to prove that the reason for termination was illegal, or that the termination itself was illegal because it goes against a written or implied promise of employment. For example, if you have a written contract promising job security for one year, and you are fired after six months, you can argue that your employment was not “at-will.” Even an implied promise can suffice, but these are much more difficult to prove. A Boston employment law attorney can help you protect your rights if you’ve been wrongfully terminated. Continue reading

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

A whistleblower is someone who exposes information about an illegal or unethical activity against the government or a private entity. When the activity is being committed against the U.S. government, the whistleblower may bring what is known as a qui tam lawsuit under the False Claims Act, which rewards whistleblowers when funds lost to fraud are recovered as a result of the information provided.

If you are aware of fraudulent activity against the government, you may be able to help stop the fraud and reap immense financial benefits. Fraud against the government doesn’t only hurt the government. For example, Medicare and Medicaid fraud has negative consequences for recipients of these programs, as well as taxpayers in general. A Boston whistleblower attorney can help you determine how to proceed if you are aware of fraudulent activities being committed against the U.S. government.

Personal and Professional Protections

In addition to being rewarded for their unique information, whistleblowers also receive protections under the False Claims Act. Not surprisingly, blowing the whistle on a large corporate entity can have personal and professional consequences, especially if that entity happens to be the whistleblower’s employer. Even so, it is a courageous, important act to expose fraud that could put the lives of patients, soldiers and the general public in grave danger. As such, whistleblowers are protected from retaliation, among other consequences.

Once you report the fraudulent or illegal activity, the government will begin an investigation of the allegations, from which point it will decide whether to intervene. If the government decides not to get involved with the case, you can continue with your qui tam case. However, such cases have a much better chance of success with the government’s involvement.

Whistleblower Awards May be in the Millions

If the individual or entity is found liable, they may have to pay up to three times the amount of funds lost to the fraudulent activity. The whistleblower is typically awarded between 15 and 25 percent of the recovered funds. Considering that recoveries are often in the tens-of-millions of dollars, 15 to 25 percent can be an extremely large sum of money.

In 2017, whistleblowers filed 669 qui tam suits, according to the Justice Department. Whistleblowers in the U.S. earned more than $392 million in 2017 by helping the government recover $3.4 billion in misappropriated or stolen funds. Below are some of the top whistleblower awards of 2017.

  • Mylan Inc. – $465M settlement
  • Shire Pharmaceuticals LLC – $350M settlement
  • Allied Home Mortgage – $268M verdict
  • eClinicalWorks – $155M settlement
  • Life Care Centers of America Inc. – $145M settlement
  • Bechtel Corp. / URS Energy and Construction Inc. – $125M settlement
  • Agility Public Warehousing Co. – $95M settlement
  • PHH Mortgage – $65M settlement
  • CA Inc. $45M – settlement
  • ADS Inc. $16M – settlement

A MA whistleblower lawyer can help you protect your rights if you are aware of fraudulent, illegal or unethical activity. Continue reading

If you are being treated differently at work based on your religious beliefs or practices, you may be a victim of religious discrimination. In the United States, individuals are protected – by federal law – against this type of discrimination in the workplace.

It is common for victims of religious discrimination to also be discriminated against for other unlawful reasons, such as race or country of origin. A Muslim immigrant from Iraq, for example, may be discriminated against for his religion, but also due to his dark skin (race) and his Middle Eastern origins (culture).

Which Religions are Protected?

Religion encompasses religious beliefs, practice, and all aspects of observance. For the purpose of workplace discrimination, the religion in question doesn’t need to be traditional, such as Christianity or Judaism. In fact, the individual’s religion can be comprised of entirely unique beliefs, as long as they are meaningful and sincere. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work due to your religious beliefs.

In most cases, workplace discrimination based on religion falls into one or more of the following categories:

  • Religious preference-based employment decisions
  • Religious preference-based harassment
  • Failure to provide reasonable accommodations for religious practices

Examples of Workplace Religious Discrimination

As with any type of discrimination, religious discrimination can take many forms. Common examples include:

  • Hiring, firing or promoting an individual based on religious faith, or lack thereof. An example of this type of discrimination would be firing an employee because she is an Orthodox Jew and can’t work on Saturdays.
  • Harassing an individual based on their religion. This can take the form of mocking an employee, or asking them to remove religious clothing because it violates the company dress code.
  • Failure to provide necessary accommodations. This the most common type of religious discrimination in the workplace. An example of failure to accommodate occurs when an employee is refused his request to display a religious icon on his desk.

Cases of discrimination based on religion have skyrocketed in recent years. According to the United States Equal Employment Opportunity Commission (EEOC), religion-based claims increased by 41 percent between 1997 and 2015. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been discriminated against at based on your religion. Continue reading

Sexual harassment in the workplace is a form of gender discrimination. As such, it is illegal. Discrimination, including sexual harassment, can create an environment that is hostile, intimidating, or offensive. The situation can be even worse when the person doing the harassing is your boss. In the workplace, a supervisor is inherently in a position of power over his or her subordinates. If your boss is making sexual advances toward you, or engaging in any type of sexually-harassing behavior, what should you do?

Although overt sexual advances can be particularly awkward and intimidating, even less obvious conduct can fall under the category of sexual harassment. Some examples of sexual harassment in the workplace include:

  • inappropriate or offensive comments about gender,
  • repeated comments about an individual’s appearance, and
  • inappropriate comments made through email.

For example, if your boss routinely makes comments about the incompetence of women in the workplace, in front of a female co-worker, this may be considered sexual harassment.

When sexual harassment comes in the form of flirtation, repeated requests for dates, or outright sexual advances, the work environment can become quite terrifying for the targeted employee. A Boston employment law attorney can help you recover damages if you’ve been the victim of sexual harassment in the workplace.

Title VII

Fortunately, sexual harassment is prohibited at the federal, state, and local level in MA. Under Title VII of the Civil Rights Act of 1964, employees can sue their employers if they suffer from this type of discrimination. Prior to filing a lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with investigating such claims. Once the EEOC completes its investigation, the employee may bring a lawsuit if no alternative resolution is reached.

According to the EEOC, “although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Tips for Handling the Situation

If your boss is making sexual advances toward you, you don’t need to suffer in silence. Take the steps below to protect yourself from further discrimination.

  • Save any offensive emails, texts, or voicemails from your supervisor. These could be helpful if you decide to file a claim with the EEOC, or bring a lawsuit.
  • If you are comfortable doing so, ask your boss to stop the offensive conduct. In some cases, he or she may be unaware that the conduct is bothering you.If, however, you feel too uncomfortable – or unsafe – do not address your supervisor directly.
  • Speak to your human resources department if the situation persists. HR should be supportive, and may be able to give you some direction as to how to resolve the problem. Depending on the size of the company, the HR department may open its own investigation. In some cases, however, they are of little to no help.
  • Contact an employment law attorney. Whether you end up filing a claim with the EEOC, bringing a lawsuit, or resolving the situation without such measures, an experienced MA employment law attorney can answer your toughest questions and help you determine how to proceed during this difficult time.

Continue reading

Employers are required – by federal law – to provide a safe workplace. If you are concerned that your workplace is unsafe or unhealthy, you have rights. In most cases, the first course of action is to report the hazard to your employer. If the employer is unable, or unwilling, to address the issue, you can contact the Occupational Safety and Health Administration (OSHA), the agency responsible for establishing and enforcing workplace safety guidelines, as well as investigating reports of violations.

OSHA protects workers from injuries, illnesses, and generally unsafe or hazardous working conditions. According to OSHA, employers must:

  • provide a safe, healthy workplace,
  • post the OSHA job safety notice somewhere in the workplace,
  • record all injuries, hazardous material exposures, and deaths, and
  • provide any necessary safety training.

Can I Refuse to Work?

Workers have the right to refuse to work if:

  • they reasonably believe that a workplace hazard presents an immediate risk of serious injury or death,
  • their employer fails to fix the condition,
  • there is not enough time to report the condition to OSHA, and
  • no reasonable alternative exists.

In all other cases, workers should first inform their employer of the concern in writing. Keep in mind that employers aren’t usually making the situation unsafe on purpose. In most cases, the negligence is unintentional. Speaking up may be the only thing you need to do to resolve the problem. If that doesn’t work, you may need to talk to an attorney. A Boston work injury lawyer can help you determine how to proceed if you’ve been injured in a workplace accident.

Employer Retaliation

Both OSHA and state laws protect workers who report violations from employer retaliation. Essentially, this means that a worker cannot be demoted or fired, or have their pay reduced, due to having filed a complaint about workplace safety violations. If employer retaliation occurs, the worker may have his or her former position reinstated, and he or she may receive back pay. A MA work injury lawyer can help you recover damages if you’ve been injured in a work-related accident. Continue reading

According to a lawsuit filed earlier this week, female workers at Boston’s McCormick & Schmick’s seafood restaurant have been routinely subjected to sexual harassment from male co-workers and supervisors. The five women involved in the lawsuit allege that their complaints about ongoing groping and lewd comments were consistently ignored by the company.

The McCormick & Schmick lawsuit is just another example of the routine abuse and harassment faced by low-income workers, especially in the hospitality industry. Many of these women are undocumented immigrants and speak little to no English, which prevents them from coming forward about their abuse. Even if they have legal status and speak English, low-income workers may be hesitant to report harassment for fear of losing their job, and income. For many of these women, the loss of a pay check – however small – would have devastating consequences. As such, they suffer in silence.

Low-Income Workers have Legal Rights

Fabiana Santos, a prep cook at the restaurant, said she endured unwanted touching and lewd comments from a dishwasher.

“The disgusting things that happened to me made me feel dirty,” said Santos, through an interpreter. “And when I got home, I didn’t even want my kids to touch me.” A MA employment law attorney can help you protect your rights if you’ve been discriminated against in the workplace.

Another woman, Marta Romero, says that she felt powerless to stop the groping and harassment she suffered at the hands of a sous chef, who also happened to be her supervisor.

“I want other women to know that whatever type of work they do or who they are, they’re not powerless,” said Romero, through an interpreter. “They are powerful and have legal rights.” A Boston workplace sexual harassment attorney can help you determine how to proceed if you’ve been the victim of lewd or abusive behavior.

McCormick & Schmick’s Denied that Conduct Constituted Sexual Harassment

Despite repeatedly reporting the sexual harassment to the Houston-based restaurant chain, all five women involved in the lawsuit said they were ignored. According to the lawsuit, the company’s human resources department did impose some disciplinary actions against certain employees, but the company denied that the conduct reached the level of sexual harassment.

The five women eventually went to the U.S. Equal Employment Opportunity Commission (EEOC), which ruled in their favor. According to the lawsuit, the EEOC ruled in 2015 that there was cause to believe that McCormick & Schmick’s workers had engaged in sexual harassment. As such, the women were able to proceed with their lawsuit, which was filed on Tuesday in Boston’s Suffolk County Superior Court.

Domestic Workers are Especially Vulnerable

Female workers in the agricultural, hospitality, hotel, and domestic industries have the highest risk of workplace sexual harassment. Domestic workers have the greatest challenge due to the nature of their jobs.

“There is no human resources department,” said Marisa Senteno, the National Domestic Workers Alliance’s enforcement program manager. “You don’t have co-workers, so how are you going to prove that these things are happening?” Continue reading

Sexual harassment has been a major topic of discussion in recent months. This should be no surprise, considering how widespread the problem has been for decades, centuries, probably since the beginning of time. The modern concept of sexual harassment is relatively new, however, dating from the 1970s onwards. And women’s voices are finally being heard.

Workplace sexual harassment is a violation of human rights and a shockingly common form of sex-based discrimination. Sexual harassment in the workplace often goes unreported as it starts at the top. Regardless, in light of the recent Hollywood scandals, including Harvey Weinstein, Kevin Spacey and Louis C.K., women having started coming forward in greater numbers to report workplace sexual misconduct. Further, the #MeToo campaign has encouraged women to speak out, and new allegations seem to be turning up every day. One of the most recent involves Hall of Fame quarterback, Warren Moon.

The Washington Post’s Craig Whitlock recently reported that a California woman filed a lawsuit against Warren Moon, accusing the ex-football player of sexual harassment. According to Whitlock, Moon “committed sexual battery by grabbing the woman’s crotch” during a trip to Seattle earlier this year.

Moon Drugged His Victim’s Drink

The lawsuit also alleges that Moon drugged 32-year-old Wendy Haskell’s drink and pulled off her bathing suit during an October trip to Mexico. Haskell was hired in July as Moon’s executive assistant. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been sexually harassed at work.

Unfortunately, women often suffer further from the process of reporting sexual harassment.  In addition to the shame and adherence to cultural norms that frequently prevents women from speaking out, they commonly fear an onslaught of other consequences, such as work degradations, humiliation, and retaliation. Haskell was not “only” a victim of sexual harassment, she was also a victim of those consequences.

According to Haskell’s lawsuit, Sports 1 Marketing – the company she worked for, which was owned by Moon – demoted her when she made superiors aware of Moon’s actions. She alleges that Moon “required her to wear thong underwear and share his bed” when they were together on business trips. This is an egregious form of sexual abuse, and reports of such violations should never result in further punishment of the victim. A MA employment law attorney can help you recover damages if you’ve been the victim of workplace sexual harassment. Continue reading

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