Employment Archive

But was it Sexual Harassment? Pleading Ignorance takes a look…

October 29th, 2010. By Kristine B

If you’ve read the news lately, you more than likely read that Clarence Thomas and Anita Hill are back at it again. If you’re like me, you may have wondered if we hadn’t somehow gone into some time warp, circa 1991. Well, as one could predict, it was the old ”he did it,” “she lied” debate. That debate won’t be tackled—or resolved—here at Pleading Ignorance—heck, I hardly have access to the pertinent information—but what we can discuss is what sexual harassment actually is—and is not.

“Hey babe, nice skirt…”

So is a remark like that sexual harassment—or not? Let’s see…

Sexual harassment involves unwelcome sexual advances, requests for sexual favors and other conduct (either physical or verbal) that is of a sexual nature. These activities become sexual harassment when the recipient’s submission to or rejection of the conduct affects his or her employment, interferes with work performance or creates an intimidating or hostile work environment.

The person being harassed does not necessarily have to fear the loss of a job for the situation to be deemed sexual harassment. Sexual harassment can involve promises of promotions or more favorable working conditions or, if the conduct is rejected, demotions or hostile work conditions.

Sexual harassment does not have to involve parties of the opposite sex. Furthermore, although the harasser can be the employee’s supervisor, the harassment can also involve Read the rest of this entry »

Tags: Pleading Ignorance, Sexual Harassment
Posted in Emerging Issues, Employment | 55042 Comments »2010-10-29+19%3A37%3A11Kristine+B

There Will be No Lawsuits in Chile

October 14th, 2010. By Hunter West

Last Miner Emerges in Chile (photo: csmonitor.com)

We’ve all been enthralled, inspired, mystified while watching the successful rescue of the 33 Chilean miners unfolding on our television screens this week. It’s a compelling story that is ready-made for Hollywood—and you want to bet it will be a movie and a series of books, the options for which have already been hammered out. It would make for a worthy introductory movie for Oprah’s OWN network when she launches next year.

The point is, an event that could have ended so tragically—didn’t. The grace of God has to certainly be a factor. So is luck. The president of Chile called it a miracle, and of course he is right. But the Chilean government and the mining authority did so many things right that by the grace of God and Lady Luck, they pretty much guaranteed a good outcome.

Miracles can, and do get helped along by good planning.

Compare what we have just witnessed on TV screens around the world to some disasters on our own shores—or just off them—that didn’t need to happen but did because someone, somewhere cut corners.

Look at the BP oil spill. Of course, there is inherent risk with any drilling attempt. But oil drilling R&D over the years has come up with a series of checks, balances and safeguards that serves to minimize that risk. In the BP case it is alleged and widely believed that a number of those safeguards were skipped in the interest of haste and cost. A final inspection that would have identified deficiencies leading to a catastrophic failure, was called off. The inspection team was on the Deepwater Horizon, ready to go, when they Read the rest of this entry »

Tags: Chile Miners
Posted in Employment, Personal Injury | 52432 Comments »There+Will+be+No+Lawsuits+in+Chile2010-10-14+14%3A39%3A28Hunter+West

Are Outside Sales Reps Exempt from Overtime Pay?

October 5th, 2010. By Kristine B

It’s one of the great conundrums facing employees today: determining whether or not they are exempt from overtime pay. For some, the answer is simple but for others, the answer is much more difficult. Many companies try to classify employees as exempt from overtime pay for obvious reasons—it saves them money. But that doesn’t make it right. This week, Pleading Ignorance looks at outside sales representatives and explains why (or why not) they should be paid overtime.

Outside sales representatives spend a lot of their time talking with clients and potential clients. They explain the company’s products, prices and the benefits their products have over a competing product. They may or may not leave free samples with the client (or potential client) and may follow up later to encourage the potential client to purchase the product.

Outside sales representatives are considered exempt from overtime pay, but there is a catch to this. Some sales reps may be misclassified as exempt from overtime pay when, in fact, they are not.

To be exempt from overtime pay as an outside sales person, the person has to directly affect the sale transaction.

Here’s an example: I market pens to you (let’s say you’re a doctor who needs pens). Because of my marketing of the pens, you decide to buy them. I have directly affected the sale of the pens and am, therefore, considered an outside sales person.

Now, consider pharmaceutical sales reps: They go to a doctor’s office and market a drug, drug X. But, the doctor doesn’t actually purchase drug X. All the doctor does is prescribe Read the rest of this entry »

Tags: Exempt, Outside Sales, Overtime Pay
Posted in Employment | 51492 Comments »2010-10-05+20%3A37%3A55Kristine+B

Employers vs Sick Employees: Whose Side Are You On?

September 14th, 2010. By Hunter West

The recent spate of incidents where employees have been unjustly fired for health issues through no control of their own leaves an unsavory aftertaste, and paints employers guilty of such conduct as mean-spirited. A case in point is the former employee of a Michael’s store who felt pressured to return to work early after a double mastectomy, only to be fired soon after while continuing to undergo chemotherapy.

As inconvenient as it might be to have a vital employee sidelined for health issues, basic human rights suggest that the employer has a moral obligation to stand behind an employee who is suffering. There are also legal requirements to that end.

Nor should an employee who has health issues through no fault of his own—but still capable of working—find himself shut out by an employer, and from a job he needs and is quite capable of doing, just because he is not the pristine specimen that may fit the company profile.

Employees who suffer health discrimination in the workplace can, and do fight back. Recently a breast cancer patient sued her former employer for what she claimed to be an unjust firing and was awarded millions in compensation.

But there are two sides to every issue—and it can go both ways.

To wit, employees have to take some responsibility for their own health. When they fail to do so, who can blame an employer for feeling angry and betrayed?

How long have we known that smoking kills? And yet there are those who smoke like a Read the rest of this entry »

Tags: Employment, Job Discrimination, Sick Workers, Wellness, Workplace Discrimination
Posted in Employment | 4942No Comments »2010-09-14+12%3A48%3A07Hunter+West

Riddle: How Many Make a Class for a Wal-Mart Class Action?

September 1st, 2010. By LucyC

Question: How many people does it take to make a class in a class action lawsuit?

Answer: That depends on how much money you have to spend.

Faced with a potential class action lawsuit over allegations that the world’s largest private employer discriminated (discriminates?) against its female employees, Wal-Mart has so far managed to avoid a trial by insisting that the roughly 1 million women who worked for them since 2001 don’t constitute a class. That’s nine years of legal wrangling and it ain’t over yet.

Just as a quick reference, according to one legal dictionary I checked the definition of a class is: “a lawsuit that allows a large number of people with a common interest in a matter to sue or be sued as a group.” That seems fairly straight forward to me. As indeed it did to a federal court judge in 2004, who ruled that the women do constitute a class. Wal-Mart, apparently having the funds available to drag this out—appealed the decision, but in April, the Ninth Circuit Court of Appeals also ruled that the 1 million women constitutes a class, and that the case could proceed.

But no. Not yet. Wal-Mart—the harbingers of “Save Money. Live Better.”—seem to be following their own advice to the letter, figuring it’s likely cheaper to fight this now than risk going to court or paying a settlement—both outcomes they are very familiar with—is taking the matter to the Supreme Court.

A recent editorial in the NY Times states this is “probably a smart legal move, given the Read the rest of this entry »

Tags: Discrimination, Employment, Fair Pay, Wal-Mart, Walmart
Posted in Employment | 48452 Comments »2010-09-01+15%3A31%3A16LucyC