Articles Posted in Employment Law

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

Long and short-term disability insurance policies in Massachusetts can offer income protection when a medical problem renders you unable to work, but these policies don’t protect against job loss. Receiving disability benefits does not automatically prevent you from being terminated. However, certain situations do.

Family and Medical Leave Act (FMLA)

FMLA is a federal law that provides employees with up to 12 weeks of unpaid leave annually for personal medical issues, or to take care of an immediate family member who is ill. FMLA is often used as a type of maternity leave. Not all businesses are subject to FMLA, however. In order for FMLA to be applicable, the company must have at least 50 employees. Many people use FMLA in conjunction with short-term disability insurance, which covers at least a portion of their lost income. Some people with chronic disabilities utilize FMLA every year.

If you are on FMLA leave, you cannot be terminated unless you are absent from work beyond the 12-week period. Upon your return from FMLA leave, you must be given your former position, or one that is similar. But keep in mind, even exceeding the 12-week period by one day puts you at risk of termination. This has no bearing on short-term disability insurance benefits, however. A MA employment law attorney can help you recover damages if you’ve been been the victim of disability discrimination in the workplace.

Americans with Disabilities Act (ADA)

Under the ADA, it is illegal to terminate an employee due to a covered disability. This applies to employees who are currently on disability leave. The ADA defines a disability as a “physical or mental impairment that substantially limits a major life activity.” Businesses with 15 or more employees are subject to the ADA and are required by law to make, or offer to make, reasonable accommodations for an employee’s disability. The only exception occurs when doing so would cause “undue hardship” for the employer. The employee must inform the employer of the disability, however, and allow reasonable time to make the requested accommodation.

What’s a Reasonable Accommodation?

A reasonable accommodation can be the installation of a wheelchair ramp or Braille signage, desk modification, or the restructuring of the employee’s schedule or job duties. These are just a few examples. If it is shown that the necessary accommodations will cause the employer undue hardship, or that none exist to support the employee in that particular job, the employee can be legally terminated. However, the way in which the termination is handled is equally important. Before firing an employee due to disability, the employer must work with the employee to try multiple options. A Boston employment law attorney can help you determine how to proceed if you’ve been unlawfully terminated due to a disability.

To recap, employees can be fired while on disability if they exceed their 12 annual weeks of FMLA leave, or if they are unable to perform the essential functions of their job after reasonable accommodations have been made. If you feel that you are being discriminated against due to your disability, it is in your best interest to save any correspondence you have with your employer. This could be highly useful if you decide to file a lawsuit. Continue reading

When Rick Pitino was fired for “just cause” as University of Louisville’s head basketball coach in September, the former Boston Celtics coach lost a contract worth about $38.7 million. Last week, Pitino filed a lawsuit against the university’s athletic association, claiming his employer is in breach of contract for firing him when it lacked “just cause” to do so. The lawsuit also claims that his employer failed to properly notify Pitino that he had been placed on administrative leave.

What Was the “Just Cause” for Pitino’s Firing?

According to Louisville, Pitino engaged in misconduct on three grounds:

 

  • He knew of, or was involved in, efforts to illegally incentivize basketball recruits to attend Louisville. This includes payments to Brian Bowen’s family. Ironically, although Bowen was a top recruit at the time, he’s now a non-eligible freshman.

 

  • He failed to to notify the athletic department’s compliance officers of the presence of Richard Dawkins, an alleged briber, on campus. According to Louisville, in doing so, he violated his contract. Dawkins faces decades in prison for his alleged role in multiple college basketball-related crimes.

 

  • When allegations arose about escorts being directed to have sex with certain recruits, he failed to take actions necessary to stop the behavior.

 

But Pitino denies all of the above. According to his lawsuit, Pitino “never has had any part —active, passive, or through willful ignorance —in any effort, successful or unsuccessful, completed or abandoned, to pay any recruit, or any family member of a recruit, or anyone else on a recruit’s behalf, as an inducement to attend the University of Louisville.” To support his argument, Pitino’s complaint points out that despite a government wiretap, no recorded statements of any wrongdoing on Pitino’s part are cited.

Pitino also claims that he did not  have an obligation to report Dawkins’ activities. According to his complaint, “Coach Pitino never understood that Dawkins was an agent, and Bowen’s mother stated that Dawkins was not an agent in any regard for Bowen.”

And with regards to the escorts, Pitino insists that he had zero awareness of these activities.

In addition to his complaints above, Pitino believes that the process by which his termination occurred is another issue. According to his complaint, Louisville failed to conduct a proper investigation or provide sufficient notice prior to his termination. A MA employment law attorney can help you determine how to proceed if you’ve been wrongfully terminated. Continue reading

With the Equal Employment Commission’s (EEOC) new web portal, filing a workplace discrimination charge just got easier than ever. According to the EEOC, the portal was created in response to an increasing demand for the agency’s services. In 2017, the EEOC responded to more than 140,000 inquiries and 550,000 calls. The EEOC hopes that the portal will provide a more efficient way for people to contact the agency, as well as to sign and file an employment discrimination charge.

The portal, which has been piloted in multiple EEOC offices across the country, allows the public to file a charge online. From there, the individual can provide additional information, upload supporting documents, check on status, and even agree to mediation.

“This secure online system makes the EEOC and an individual’s charge information available wherever and whenever it is most convenient for that individual,” said Victoria A. Lipnic, EEOC acting chair. “It’s a giant leap forward for the EEOC in providing online services.”

What is Employment Discrimination?

Before the Civil Rights Act of 1964 was passed, employment discrimination was legal, and occurred with shocking frequency. Although workplace discrimination and harassment are now illegal, they still rear their ugly heads from time to time. In fact, employment discrimination still affects hundreds-of-thousands of workers every year. Fortunately, today’s legal protections help bring justice to victims of workplace discrimination. A Boston employment discrimination attorney can help you determine how to proceed if you’ve been discriminated against at work.

Common Types of Employment Discrimination

Employment discrimination takes many forms. If you are discriminated against based on your membership in a protected class, you may have a successful discrimination lawsuit on your hands. The most common types of unlawful employment discrimination are based on:

  • Age: Individuals age 40 and above are protected against age-based discrimination by the Age Discrimination in Employment Act (ADEA).
  • Disability: Employees with qualifying disabilities are protected by Title I of the Americans with Disabilities Act (ADA).
  • National origin: It is unlawful under Title VII of the Civil Rights Act to discriminate against an employee or prospective employee based on their country of origin, accent, or ethnic background.
  • Pregnancy: Pregnancy discrimination is a form of sex discrimination, and is prohibited under the Pregnancy Discrimination Act.
  • Race: Under Title VII of the Civil Rights Act, employees are protected from race-based discrimination, including harassment or discrimination related to the employee’s skin color, perceived race, and interracial relationships.
  • Religion: According to Title VII of the Civil Rights Act, employers may not treat employees differently based on their religion, religious beliefs, or participation in religious activities.
  • Sex: In addition to sexual harassment, sex-based discrimination includes any type of different treatment related to the employee’s sex, such as paying a woman less than her male counterpart. Sex-based discrimination is prohibited under Title VII of the Civil Rights Act.

Fortunately, it is also unlawful for an employer to retaliate against an employee for filing a discrimination claim, testifying, or participating in an investigation into employment discrimination. A MA workplace discrimination lawyer can help you recover damages if you’ve been the victim of discrimination at work. Continue reading

If you hate your job and decide to stop showing up for work, chances are you’ll get fired. And you aren’t likely to be surprised by that termination. But what if your termination is unjust? Sometimes a worker is terminated for the wrong reasons, and sometimes these reasons are illegal. If you think you’ve been wrongfully terminated from a job, what do you do?

An at-will employee is a worker who can be fired at any time for any reason, with few exceptions. Although most employment is at will, you may have an employment contract that states otherwise. If you have a written contract or statement promising you a certain level of job security, these promises may be legally enforceable.

Implied Promise

Sometimes these promises are made in writing, and sometimes they are verbal. A written promise is significantly easier to prove, but an experienced MA employment law attorney may be able to help you prove that an implied promise existed. In making this determination, courts will look at the following factors:

  • How long were you employed?
  • Did you receive positive reviews and job promotions, and how often?
  • Did your employer violate its usual employment practices in your termination?
  • Were you promised long-term employment when hired?

Your claim of an implied promise may be supported, for example, if you have been employed at company A for years, have received frequent promotions, and company A failed to provide its standard written warning prior to your termination.

Why Would an Employer Wrongfully Terminate Someone?

Wrongful terminations can occur for many reasons. Some of the most common reasons include

  • preventing an employee from collecting sales commissions.
  • replacing a long-term employee with an entry-level employee willing to work for less pay.
  • discrimination, such as when an employee refuses a supervisor’s sexual advances, or when a supervisor discovers that an employee is gay.

In some cases, an employer will try to avoid a wrongful termination lawsuit by getting the employee to quit on his or her own. To do so, the employer might subject the employee to unpleasant or difficult tasks, such as multiple transfers, dangerous assignments, and unpopular shifts. This is also illegal.

Illegitimate Grounds for Termination

Even at-will employees are protected from termination in certain situations. The following reasons are recognized as illegal grounds for termination:

  • Missing work for jury duty
  • Missing work to vote
  • Missing work to serve in the National Guard or military
  • Whistleblowing (providing information about harmful or illegal activity)

Continue reading

When your boss is a jerk, your job might be extremely unpleasant. But if your boss is a jerk to everyone, her behavior isn’t likely to create a hostile work environment, at least not in legal terms. A hostile work environment involves harassment, and harassment is defined by the EEOC as:

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

When harassment becomes a condition of employment, and it’s severe enough that a reasonable person would find the environment abusive, intimidating, or hostile, you may be working in a hostile work environment. A Boston employment law attorney can help you determine if the bad behavior of a supervisor or co-worker constitutes unlawful harassment.

For workplace harassment to be unlawful, the following elements must be present:

  • The victim belongs to a protected class.
  • The victim was subjected to unwanted verbal or physical conduct.
  • The harassment was based on the victim’s protected class.
  • The harassment was a condition of continued employment, or the harassment created an offensive, intimidating, or hostile work environment.

If all of the above elements are present, you probably have a harassment case on your hands. If your employer knew about the harassment, but did nothing to stop it, the employer may also be liable.

Consider the following two scenarios:

Scenario A: Tyler just moved to Boston from Alabama. His new co-workers find his southern accent amusing. They give Tyler the nickname Billy Bob and constantly mock his accent. Tyler complains to his supervisor. She laughs and says that everyone loves his accent…that’s why they imitate him. After a few more weeks of the unwelcome jokes and name calling, Tyler gets really angry. He storms into his supervisor’s office and demands that everyone stop calling him Billy Bob and mocking his accent. Tyler’s supervisor asks Tyler to calm down and says that his “aggressive tone” may be cause for termination.

Scenario B: Brenda is gay. When she arrives to work each morning, an anonymous co-worker has put a magazine cutout of a scantily-clad woman on Brenda’s desk. After several days, Brenda reports the incidents to her supervisor. The supervisor laughs it off and tells Brenda that her co-workers are just having fun. After enduring another week of the unwelcome attention, Brenda is beyond angry. She storms into her supervisor’s office and demands that the supervisor do something. This time the supervisor gets angry and tells Brenda that if she can’t handle a little joke, maybe she should find another place to work.

Unlawful or Just Unkind?

In the above scenarios, both Tyler and Brenda are victims of unwelcome behavior. However, Tyler’s “harassment” is based on his southern roots. Unfortunately, being from the south is not a protected class. Therefore, Tyler’s harassment, however frustrating and cruel, is not unlawful. Brenda, on the other hand, is being targeted for her sexual orientation, which is a protected class. If Brenda files a harassment claim against her employer, she will likely win.

In addition to being based on a protected class, harassment must also be consistent and pervasive. What does that mean? Basically, in order for a work environment to be considered hostile, the alleged harassment cannot be based on a single incident. For example, if a co-worker utters a racial or ethnic epithet on one occasion, the incident is unlikely to create a hostile work environment. While one or more employees may be offended by the racial slur, if it’s an isolated remark made by one employee, it isn’t likely to seriously affect the conditions of employment. But it really all depends on the unique circumstances of the case. If, for example, an employee utters something particularly egregious, and the employer refuses to reprimand him, it may be enough to justify a claim of harassment.

Preventing a Hostile Work Environment

Employers must take necessary steps to prevent unlawful harassment in the workplace. A complaint and grievance process should be in place so that employees know how to report unwanted behaviors, and every employee should receive anti-harassment training. Employers should take immediate action when an employee complains of harassment, and should create an environment in which employees feel comfortable about addressing their concerns.

If you are being harassed at work, inform the harasser that you want the conduct to stop immediately. Also report the harassment to management as soon as possible to prevent the problem from escalating. If your efforts to stop the harassment are unsuccessful, contact a MA employment law attorney today. Continue reading

Innovative, highly-lucrative and controversy-riddled ride sharing tech company, Uber, has appeared in headlines this year for their predatory and misogynistic business practices that led one female engineer to author a comprehensive blog post about her experience, which ultimately led to the resigning of Uber’s CEO, Travis Kalanick in June of 2017.

“When I joined Uber, the organization I was part of was over 25% women. By the time I was trying to transfer to another [engineering] organization, this number had dropped down to less than 6%,” wrote Susan J. Fowler in February of 2017, following her departure from Uber. “There were two major reasons for this: there was the organizational chaos, and there was also the sexism within the organization.”

Among Fowler’s jaw-dropping account of Uber’s organizational sexism, which is well worth a read, was multiple instances of sexual harassment faced by herself and her female coworkers, which were followed up by ineffective human resources meetings where it was clear that cutting down on sexual harassment was not the goal of the company, but rather performance and appearance were much more important.

Larger implications of this situation

At one point in her ordeal, Fowler was told by a manager that she was on thin ice (meaning she was close to being fired), because she had reported a higher-up to HR. Since California is an at-will employment state, he threatened that she could be fired if she ever did such a thing again.

Fowler had already been previously told by an HR rep that, were she punished for such actions, “it wouldn’t be retaliation if I received a negative review later because I had been ‘given an option’” to leave her group, or Uber entirely.

Even throughout all this, and the investigation launched with the help of then-Attorney General Eric Holder which led to the eventual resigning of Kalanick, Fowler never joined with her fellow female employees to file a class action suit against the company.

Why was this? Simply, because joining Uber as an employee included agreeing to a contractual clause that they would not be allowed to organize for such an action.

The legality of such a clause is now the subject matter of three cases scheduled to appear and present arguments before the United States Supreme Court this October. The potential weight of those rulings could have major consequences for companies that utilize similar contract language to Uber, which attempt to prevent employees from organizing class action suits after being wronged and, instead, insist that the employees hash out agreements to mitigate their concerns in closed-door, one-on-one meetings. Continue reading

The workplace is where Americans spend close to 10,000 hours of their lives, on average. Needless to say, if your place of employment makes you unhappy, you won’t exactly be able to simply endure the negative way it makes you feel, day in and day out.

But how can you be sure if your Massachusetts workplace is simply an unpleasant place to be, or if it has turned into something that is simply not acceptable anymore? How can you tell if work conditions have gone from slightly unbearable, to downright hostile? Use the following information to ascertain whether or not you work in a hostile work environment, and whether or not you have legal recourse to remedy this.

Are you being harassed?

Harassment is a large umbrella that encompasses a wide range of discriminatory behavior. It boils down to this: if you are being singled out or otherwise targeted due to something completely unrelated to your work performance – such as your race, gender, age, sexual orientation or a disability – then you are being unlawfully harassed.

If you are subjected to conditions, work expectations or other behaviors that are not endured by other employees, then you are most likely the victim of harassment. It is not acceptable for a supervisor to force one employee to clean their office, or get them lunch every day, if this is not a task laid out clearly in a job description.

Harassment can take many forms, from threats of firing for not performing tasks unrelated to your job to being mocked openly in front of your coworkers by a supervisor. If the conduct of a coworker, supervisor or anybody else in the workplace makes you uncomfortable, scared or emotionally affected in a way that it negatively impacts your ability to perform your job, then that is textbook harassment, which is illegal.

Is someone else being harassed?

You can righteously make the claim that you are working in a hostile work environment even if you aren’t the subject of any harassment.

The workplace needs to be a safe, accepting space for all of its workers. If there is somebody else who is consistently victimized, in plain view of other employees, then this can create a hostile work environment for others even if they aren’t directly being harassed. Seeing somebody else be harassed can be equally alarming and traumatizing for the person who is actively being treated poorly.

Sexual harassment

Perhaps the most egregious condition that causes a hostile work environment is sexual harassment. If you are ever subjected to uncomfortable, unwanted sexual advances by an employee, supervisor or other person in the workplace, this is unacceptable and highly illegal. Sexual harassment can be physical or verbal in nature, and can also take the form of various threats, which may be carried out if sexual favors are not performed.

What can be done?

Instances of harassment, when possible, should first be discussed with the offending person. Calmly tell them that their behavior is causing you undue harm and stress, and ask them to stop the behavior immediately. Keep a written, dated record of any instances of harassment that occur.

If you are too scared or uncomfortable to bring up your concerns to the offender personally, or if you have told them to stop and the behavior has not stopped, bring the issue forward to your human resources representative. From there, any number of actions may be taken. Likely, a workplace investigation will take place, ideally from an independent, outside investigator with no stake in the company.

If this course of action doesn’t cause the behavior to stop, then you may wish to file a complaint with the Equal Employment Opportunity Commission, which is the federal agency that enforces civil rights laws in the workplace. The EEOC can investigate complaints regarding harassment, as well as instances where an employee was unlawfully retaliated against for formally filing a complaint to stop harassing behavior. Continue reading

Sexual harassment can occur anywhere. And it’s shockingly common, especially in the workplace. In fact, one in three women between the ages of 18 and 34 report being sexually harassed at work. Sexual harassment is a form of discrimination, and a violation of Title VII of the Civil Rights Act of 1964. As such, it is a federally prohibited act. Even so, workplace sexual harassment continues to occur with shocking frequency. Read on for more information about what constitutes sexual harassment in the workplace, and what to do if you are being harassed.

Title VII protects workers from unlawful discrimination, including discrimination based on race, gender, sexual orientation, and religion. Sexual harassment encompasses a diverse array of behaviors, including unwelcome sexual advances, verbal sexual misconduct, physical sexual misconduct, and requests for sexual favors. Title VII applies to employers with at least 15 employees, and includes government entities. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of sexual harassment in the workplace.

Whether or not an action is considered sexual harassment is largely dependent on the particulars of the situation. For example, the telling of sexually-suggestive jokes between co-workers who are friends outside of work and who engage in that type of banter is probably not sexual harassment. However, if a superior tells sexually-suggestive jokes to a new employee and it makes her uncomfortable, this may be considered a form of sexual harassment. This is especially true if he continues to tell the jokes even after discovering that they make the employee uncomfortable.

Quid Pro Quo vs. Hostile Work Environment

Workplace sexual harassment is usually placed in one of two categories: quid pro quo or hostile work environment.  A MA employment law attorney can help you protect your rights if you’ve been the victim of workplace sexual harassment.

  • Quid pro quo: This type of sexual harassment occurs when the harassment is tied to an employment decision, such as a promotion or termination.
  • Hostile work environment: This type of sexual harassment occurs when the harassment of a superior or co-worker makes your work environment offensive, intimidating, or hostile.

In addition to sexually-suggestive jokes, sexual harassment may include threats or bribes soliciting sexual activity, sexual comments or innuendos, unwelcome touching, displays of sexually explicit or graphic images or content, and any type of sexual assault. If you have been sexually harassed, the severity of the incident will have a significant impact on the outcome of the case. In some cases, even a single unwelcome advance may constitute sexual harassment; for example, the request of a sexual favor in exchange for a promotion, or a uniquely severe form of harassment, such as assault. If an isolated incident is less serious, such the telling of a sexually-suggestive joke, it may be difficult to qualify as sexual harassment. When a pattern exists, however, painting a picture of a hostile work environment will be an easier task. Continue reading

Whistleblowing protections are cut and dry. If you see something illegal occurring and you report it to any type of authority – whether it’s to local law enforcement or a federal anti-fraud organization – and you are threatened, reprimanded, fired or punished in any way by your employer as a result, then you have been wronged, and are eligible to file suit against the offending party.

Protections exist for whistleblowers because, were they not in place, those who witness or are aware of criminal behavior would have no incentive to report these actions, and would have no protection from retaliation against them if they chose to do the right thing anyways.

Any individual can blow the whistle on any type of illegal behavior, whether it’s on a massive scale or a micro scale. No matter how big the crime, or the number of victims, the same protections apply.

The United States’ biggest whistleblowing protection agencies are housed within the Internal Revenue Service (IRS), and the Securities Exchange Commission (SEC). The IRS provides protection for those who blow the whistle on crimes involving tax fraud, while the SEC protects whistleblowers who report acts of fraudulent securities practices, such as insider stock trading and malicious stock practices.

Not only is it the right thing to do…

Providing information that leads to a successful investigation and, in most cases, criminals winding up in custody, is not only the right thing to do morally – it can also be incredibly lucrative for the whistleblower.

Since 2007, the IRS Whistleblower Office has helped the IRS collect $3.4 billion in may otherwise have been totally lost revenue due to tax fraud and other illicit tax activity. In turn, the IRS has awarded over $465 million in rewards to whistleblowers who helped them collect this revenue. Similarly, the SEC has awarded over $111 million in whistleblowing rewards since their program began in 2011.

To be rewarded for whistleblowing, you simply have to provide credible, accurate information that aids investigators in rooting out a criminal activity. There are stipulations and conditions for each the IRS and the SEC whistleblowing programs, which you can learn more about HERE and HERE.

Providing protections helps ensure whistleblowers are comfortable reporting illicit actions, but providing monetary awards actually incentivizes whistleblowers to speak up when they have proof of criminal activity. Continue reading

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