Resources for TriCounty Community Network Attendees

Thanks for the opportunity to speak this morning at the TriCounty Community Network Meeting in conjunction with S.A.F.E.'s recognition of Domestic Violence Awareness Month.

I wanted to post a few resources I was not able to get to during our presentation this morning. Frankly, I enjoyed a broader panel experience (and abbreviated remarks) to provide a better variety of viewpoints on addressing the issue of domestic violence. I know that TCN will have contact information for the panel posted, so I won't repost that here.

However, here are some resources I mentioned (and a few which I did not):

1. This pamphlet, entitled "Be Safe Sensible Prepared" is a joint product of the American Bar Association Commission on Domestic Violence and the ABA Tort Trial & Insurance Practice Section. In addition, links to the two ABA groups are hyperlinked to their names above.

2. The Philadelphia Ordinance (Bill No. 090660-A) providing for leave for victims of domestic violence and/or sexual abuse may be found here. There's nothing in Federal or Pennsylvania law which would preclude individual municipalities from passing equivalent ordinances (except perhaps strident objections from local chambers of commerce.)

3. Information about two pieces of Federal legislation recently introduced can be found here ("Balancing Act of 2011") and here ("Healthy Families Act"). Since watching legislation made is like watching sausage being made (as Otto von Bismarck allegedly suggested), I cannot prognosticate the future for either bill.

4. In my research I also discovered this excellent piece called "Top 10 Things Employers Can Do About Domestic Violence" from the Crisis Connection, an organization located in Southern Indiana.

Finally, to restate my basic points:

1. Employers cannot ignore the problem of domestic violence, regardless of how "difficult" it is to address (as we heard this morning), liability is lurking around every corner;

2. Employers should have a policy and should plan for dealing with domestic violence (as more than one speaker suggested); and

3. There's lots of help available if you take the initiative.

A Little Press never Hurts

We were quoted in a recent article by Gabrielle Banks in the Pittsburgh Post-Gazette regarding lawyers' online conduct (and misconduct, as the case may be).

A thanks to Jennifer Ellis, Esquire, whose blog "Jennifer Ellis, JD" is a must read for any techno-lawyer.

I know I said something along the lines of "how much trouble can you get in 140 characters."

As many know, a heap of trouble is the answer ---- but not if you are careful (and have at least half a brain.)

I will return to my discussion of retaliation claims shortly, as well as be discussing how workplaces need to handle domestic violence, and a review of the U.S. Supreme Court's past and upcoming terms.

Five Things Every Employer Needs to Know About Retaliation Claims

1. Employers can be liable for retaliation even if ultimately there was no underlying discrimination.

Retaliation claims result from an employer taking an adverse action against an employee who has a ‘good faith’ belief that they have been discriminated against. That doesn’t require the employee to be right, only to have a good faith belief that he or she is right. If there is such a good faith belief, and if the employer punishes them for that belief, the employee can bring a retaliation claim and may even prevail.

2. Juries are much more likely to find in favor of the Plaintiff on a retaliation claim than the underlying discrimination claim.


Jurors do not like to use labels such as “bigot,” “sexist” or “liar.” On the other hand, jurors do have a deep sense of fair play, and even where they are unwilling to find discrimination, they will find retaliation if they believe that the employer has not played fair with the employee claiming discrimination.

3. Everyone connected with the investigation is protected from retaliation.

The U.S. Supreme Court has held that protection from retaliation even extends to employees who participate in internal investigations, even where those investigations don’t arise from the participant’s own complaints, and even where somebody other than the complainant is retaliated against!

4. An employer doesn't have to fire an employee to cause that employee to suffer an adverse employment action.


All kinds of consequences constitute “adverse employment actions” in the employment discrimination arena. Unpaid suspensions; demotions; discrimination in job assignments; shift changes; name-calling; use of certain discriminatory props (e.g. nooses) all can be interpreted as adverse employment actions, and thereby trigger retaliation claims. Any action which "may well dissuade" an individual from bringing a good faith claim of discrimination may constitute unlawful retaliation.

5. Employers can eliminate most claims with proper internal policies and procedures.

Where an employer has an internal procedure for addressing discrimination complaints and the employee does not utilize that procedure, the employer may be able to avoid liability altogether. In addition, prompt remedial measures and a competent investigation can reduce the likelihood of a retaliation claim.

I will explore further each of these points in upcoming posts.

To pay or not to pay.....employees who miss time on "snow days"

I happened to have a client ask me this very question this morning, so here’s my “official” response, and an unofficial one.

According to a letter advisory from the United States Department of Labor:

The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report for work for the day even though the employer is open for business, an absence for personal reasons. Such an absence does not constitute an absence due to sickness or disability. Thus, under the policy you described above, an employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions. Such a deduction will not violate the salary basis rule or otherwise affect the employee’s exempt status. Please note, however, that deductions from salary for less than a full-day’s absence are not permitted for such reasons under the regulations. If an exempt employee is absent for one and a half days due to adverse weather conditions, the employer may deduct only for the one full-day absence, and the employee must receive a full-day’s pay for the partial day worked, in order for the employer to meet the “salary basis” rule. See 29 C.F.R. § 541.602(b)(1).

A simplified approach to this is as follows:

1. Office closed: Salaried (i.e. exempt) employees' pay unaffected; Hourly employees may be docked.
   
2. Office open: Salaried employees' pay unaffected, leave time may be debited; Hourly employees may be docked.
3. Regardless of whether open or closed: Hourly employees can be docked for partial days; Salaried employees cannot.
   

See also the Department of Labor's Wage & Hour Division letter FLSA2005-41.

Of note is the following language:

Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the situation presented above, whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account or has a negative balance in the leave bank account still must receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.

A few thoughts, though, about how an employer approaches the issue:

1. Is there inclement weather where you are? (If there isn't ever inclement weather where you are, leave a comment about where you are so I can take a look at real estate nearby....) Every employer ought to have an inclement weather policy. Does your employer bother to at least post a list of “holidays” each year? (Most do). Just add a sentence or two about inclement weather.

2. Employers whose staff likes coming to work generally fare better in the marketplace. Ever heard of Zappos? Google? Employers should make a decision whether to be "open" or "closed," and not force employees to trudge to work through dangerous conditions or face a short paycheck. Employers will nearly always make more money with happy, productive employees than with employees who feel they are victimized.

3. Employers should consider setting a limit like school districts do. 3 days a year? 5 days a year? Make it part of employees' personal days if you like (since, as quoted above, Federal law does not require that an employer provide: (1) personal days; (2) sick days or (3) vacation days. (Note, we're Pennsylvania based here. Check your local jurisdiction to see whether your state or local law requires a mandatory offering of personal, sick and/or vacation days.)

And as Sergeant Phil Esterhaus used to say on Hill Street Blues, "Let’s be careful out there…."

Can an "honest mistake" be "willful misconduct?"

Yes, apparently, according to a sharply divided Pennsylvania Commonwealth Court opinion issued in Oliver v. Unemployment Compensation Board of Review.

Typically, unemployment compensation benefits are awarded to a claimant who is not responsible for willful misconduct. The burden of proving willful misconduct is on the employer.

Traditionally, willful misconduct has required a knowing action on the part of the claimant that his or her conduct was in violation of a known work rule. There is a case denying benefits that held that a negligent violation of a workrule might be sufficient. In that case, Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. Cmwlth. 1994), a claimant was aware of a rule requiring him to walk around the back of his truck before backing up. He failed to do so, and backed his truck into a light standard resulting in damage to the truck, after which he was terminated. The referee had granted benefits, finding that the light standard had been in the claimant's "blind spot," but the board reversed and the court affirmed finding that regardless whether the collision was "accidental" or not, the claimant had deliberately failed to walk around the back of the truck, and thereby had deliberately violated a workplace rule.

In Oliver, the claimant, a teacher at a pre-school, had been reminded two weeks earlier of the school's "zero tolerance policy" regarding failure to keep 100% of all children in their care under 100% control.

While exiting a playroom to lead her students outside, the claimant tripped then closed the door behind her accidentally leaving one of her students in the room. Several minutes later it was pointed out to her that she had only five of her six charges, and had left one of them alone in the playroom unattended. She was terminated, although she claimed that the violation had been an "honest mistake."

The Commonwealth Court ruled that "honest mistake" or not, the claimant knew that the policy existed, she had previously been warned, and she had nonetheless violated it when she left the student alone in the playroom. Of note was that the court considered all of the explanations the claimant offered, and still noted that her violation of the policy, regardless of whether accidental or deliberate, was "knowing," and accordingly justified a denial of benefits.

The moral of the story is that in order to prevail at UC hearings in Pennsylvania where an employer alleges "willful misconduct," it will be easier for employers to establish the employee's "knowledge" of the violated work rule and less important for the employee to explain the reasons behind the violation.

Whose Dream is it Anyway?

Last week, Glenn Beck shared, or I should say borrowed the venue at Martin Luther King gave his seminal "I Have a Dream" speech.

Beck claimed that the rally was to honor "our heroes, our heritage and our future." (While I hate to link to it, Beck's site is here.) He claimed the rally was a non-political event to pay tribute to America’s service personnel and "other upstanding citizens who embody our nation’s founding principles of integrity, truth and honor."

Perhaps I am plagued by the paranoia that afflicts some diasporan Jews, but his rallying cry to "restore honor" is eerily reminiscent of Hitler's early speeches in pre-war Germany.

I arrived at this juxtaposition on my own, but it appears I am not alone in seeing the pattern, witness here and here .

Fact is that Beck trades on his "commoner" image without any reasonable foundation. He is not one of his followers. He makes more than 20 million dollars a year spewing vitriol, hatred and paranoia. And he does so without shame, while invoking God.

As a civil rights attorney, I will defend his right to speak, regardless of the lack of any intellectual content to his drivel, but the fact that he appeals to anyone without cortical level impairment remaings frightening.

As one of my very favorite bloggers, Helen Philpot of "Margaret and Helen" wrote recently here:

"The greatest threat against America is not terrorism. It’s not a mosque in Manhattan. It’s not gay marriage. It’s not healthcare reform. And, believe it or not, it’s not even Beck or Palin. The greatest threat against America are the tens of millions of Americans who won’t turn out to vote this November effectively giving power to 87,000 angry assholes."

Nothing positive can come from such negative energy. Nothing positive ever came from Hitler either.

Employee or Independent Contractor? How much are you willing to bet?

A significant number of employers cut corners by classifying their employees as "independent contractors." These employers are also hoping to avoid considerable employment taxes which are due to Federal, state and even local departments of revenue. The New York Times reported yesterday that Federal and state officials are beginning to pursue aggressively those employers who misclassify employees as independent contractors, in an effort to address their deficits.

Professional firms are among the most notorious who do this. I know many law firms who treat their associates as independent contractors, issuing 1099's at year's end, and expecting their associates to file business tax returns in those municipalities where such taxes are required. In addition, many other service companies --- cleaning, contracting, delivery --- use the "independent contractor" approach to dodge paying employment taxes.

While case law varies from state to state, much of the legal analysis comes from a well-established United States Supreme Court decision United States v. Silk, 331 U.S. 704 (1947). In that case, the Court outlined several criteria which are still followed to this date in determining whether an employee is an employee or a genuine independent contractor:

1. The degree of the employer's control, that is, to what extent does the employer dictate how, when and where the job is performed?
   
2. The alleged independent contractor’s investment in facilities and tools. Does the employer supply the tools, equipment and supplies or does the independent contractor?
3. The independent contractor’s exposure to “profit and loss.” Is the alleged independent contractor dealing with costs versus sales or is their compensation thinly disguised piece work, hourly work, or salaried?
4. The permanency of the relationship between the parties. Is this a one shot deal? Have the two been working together for years? Is the employer "assigning" jobs to the independent contractor like a referral agency, or is the employee intrinsically part of the employer's operations?
5. The skill involved.

Courts have also considered collateral issues such as the independent contractor’s ability to work for others and the independent contractor’s ability to “determine their own direction in the marketplace” in assessing whether an individual is an employee or an independent contractor.

Remember that there can be individual liability on the part of corporate officers for unpaid employment taxes, and no corporate structure will adequately protect individuals from such liability. In addition, many states provide for criminal liability on the part of non-paying employers, and I know of more than one corporate officer with reporting probation while a past balance of unemployment compensation tax is paid off.

So, you may call those employees of yours independent contractors, but how much do you really want to bet?