Articles Posted in Employment Law

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

Do you believe that you are being discriminated against at work? Is the discrimination due to your race, or the color of your skin? In 2017, racial discrimination still occurs with shocking frequency. Unfortunately, proving it isn’t always an easy task. The article below provides tips on the different types of racial discrimination and how to substantiate your case. An experienced Boston employment law attorney can help you determine how to proceed if you are being discriminated against at work.

Direct Discrimination

This is the easiest type of discrimination to recognize. When an employer, supervisor or co-worker makes obviously racist remarks with no attempt at hiding their intent, this is direct discrimination. This is the easiest type to prove, but it’s also quite rare. Knowing the consequences, few people will make blatantly racist jokes and comments in the workplace. But it does happen from time to time.

Indirect Discrimination

This type of discrimination is more common. For example, if everyone gets a bonus except Bob, who happens to be black, the employer may claim that it’s because Bob is too new. Is that racial discrimination, or is Bob actually too new for a bonus? The good news is, the answer can usually be discovered with a bit of leg work, including research of employment policies and the company’s past handling of similar situations. A MA employment law attorney can help you uncover the evidence necessary to back up your claim.

Harassment

Consider the following example of racial harassment: Dave is Asian. Dave is constantly scolded in front of his co-workers for not leaving his workspace clean when he heads home for the day. At first Dave thinks his employer must be a perfectionist, and he begins emptying his trash bin twice a day, wiping dust off his computer screen, and washing out his personal coffee mug every evening. But the scoldings continue. When Dave looks around, he realizes that his cubicle is far cleaner than any other cubicle at his place of employment. Is Dave being harassed because of his race? It’s very possible.

What Discriminatory Practices are Prohibited?

If you experience discrimination related to any of the following aspects of employment, you are protected under Title VII of the ADA, GINA, and the ADEA.

  • Hiring process
  • Terminations and layoffs
  • Compensation
  • Job postings
  • Promotions
  • Transfers
  • Testing
  • Training
  • Retirement plans, benefits, and disability

Continue reading

If you were terminated from your job but you are owed commission payments, what are your rights? And what are the employer’s rights? There are specific requirements for receiving your last paycheck following termination, but are commission payments included in that check? Read on for more information about commission payments and the variables that may affect how, or if, they’re paid out following employment termination.

Commission payments usually follow a certain schedule. For example, if you sell 50 widgets to Company A, you will likely provide a time frame within which Company A has to pay for their widgets. Maybe it’s 15 days, maybe 30, maybe 60.  Payment is rarely received when the sale is negotiated. Let’s say Company A has 30 days to pay for their widgets, but they find cheaper widgets somewhere else and cancel their order with you. If you had already received a commission payment on those widgets, this could present a serious problem. For this reason, commissions are rarely paid to employees until full payment has been received.

Factors Affecting Commission Payments

Whether or not you are owed a commission payment after termination is dependent on several factors. These include:

  • Terms within your contract
  • Your level of involvement in generating the sale
  • Circumstances of the sale and your termination

Unless there is an agreement to the contrary, if the commission was earned prior to the date of the termination, the employer will likely be obligated to pay. If, however, the commission was not earned by the date of the termination, but the sales process has been initiated, the policy will be dictated by past practices. It is important to keep in mind, however, that the waters can get a bit muddy if the employee was fired for cause. That doesn’t mean that no commissions can be paid…it just makes things more complicated.

The Contract

If compensation is entirely or partially commission based, there should exist a clear commission schedule between the employee and employer. This payment schedule should include information about when commissions are paid on a closed sale, the impact of renegotiated or canceled sales, and guidelines for handling commission payments following termination. By reviewing this contract, a MA employment law attorney can help you determine if, how much, and when commissions should be paid. If you are still employed and you do not have a contract with clear commission policies, you should request one to avoid serious headaches in the future.

Save Emails

If you have exchanged emails with your supervisor, human resources, or anyone within your company prior to your termination, save these emails. Just as they say “one man’s trash is another man’s treasure,” what seems to you like an insignificant email could be a gold mine. Don’t delete. A Boston employment law attorney can help you determine how to proceed if you’re owed commission payments following a termination. Continue reading

Has Uber not heard about the dangers of fatigued driving? According to the National Highway Traffic Safety Administration (NHTSA), at least 100,000 annual motor vehicle accidents are likely caused by a fatigued driver. Yet, the company behind the driver-for-hire app is vehemently against the 70 hour workweek limit for its drivers. Could it have anything to do with the launch of its new accident insurance policy?

Yes, you read that correctly – Uber wants drivers to be permitted to work more than 16 hours in a single day, and it wants to further profit by insuring those drivers against accidents that are sure to occur as a result. The insurance plan is being tested in eight states; Massachusetts is among them. In exchange for coverage in work-related accidents, drivers will pay a per-mile fee to Uber.

No Workers’ Compensation?

The question isn’t whether or not Uber drivers should protect themselves with insurance; taxi-related jobs have five times the death rate as other occupations. The issue is with Uber’s decision to charge drivers for medical care and lost wages rather than purchase workers’ compensation insurance to cover all drivers. In addition, the benefits that will be provided by Uber’s accident policy will be less robust than those provided by traditional workers’ comp. According to press reports, the plan will cover up to half of the individual’s average weekly earnings, compared to workers’ comp benefits which cover up to 66 percent of lost wages.

Employees in other companies and industries get overtime pay, which acts as a deterrent to employers to overwork their staff. In addition, those workers are generally covered by workers’ comp. It is true that Uber’s drivers are independent contractors, not employees. However, state agencies in Alaska, California and Oregon have audited Uber, collected payroll taxes, and demanded real protections for the company’s drivers. A MA workers’ compensation attorney can help you determine if you are entitled to workers’ comp benefits.

Driver Fatigue

The NHTSA conservatively estimates that fatigue results in about 1,550 deaths, 71,000 injuries, and $12.5 billion in financial losses every year. The statistics below provide further insight into this serious problem.

  • Individuals between the ages of 18 and 29 are most likely to drive while drowsy.
  • Men are more likely to drive while drowsy than their female counterparts.
  • Adults with young children have a greater tendency to drive drowsy.
  • The AAA Foundation for Traffic Safety released a study revealing that individuals who get six to seven hours of sleep per night have double the risk of a fatigue-related crash than those who sleep eight hours or more.
  • A study in Australia revealed that a person who has been awake for 18 hours will have a level of impairment equal to someone with a blood alcohol concentration (BAC) of .05.

Other factors, including obesity, smoking, alcohol consumption and conditions such as sleep apnea weigh heavily when calculating the risk of driver fatigue. However, one thing is certain; driving for more than 16 hours in one day is unsafe. Consider asking your Uber driver how many hours he or she has been working the next time you go for a ride. And if you work for Uber and were injured on the job, a skilled Boston work injury lawyer can help you determine how to proceed. Continue reading

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