[mage lang="" source="flickr"]employment law minimum wage[/mage] If you work a job that only pays commission, do you file taxes differently. Why don't minimum wage laws apply
Is there some other type of employment that this falls under so that the companies don't have to pay minimum wage?
He gets a paycheck and a w2 from the company he works for. There is just no base pay, so if he sells nothing he makes nothing. Otherwise he gets commission on what he sells. I don't think that would be self employed would it?
its called self employed and you are responsible for your own taxes (best advice is pay on your earnings quarterly) most sales positions are like this
Labor investigates vets' overtime issue
The U.S. Department of Labor will investigate alleged overtime pay violations at a suburban Cincinnati animal hospital run by a veterinarian and his daughter. Definition of Sweat Shop: cut a stone with this old blade!
religious practices such as wearing certain clothing:
a.) need not be accommodated by the employer.
b.) must be allowed only if the position does not involve interaction with the public.
c.) need not be accommodated if other employees object.
d.) must be accommodated y the employer unless it would cause undue hardship.
Must be accommodated.
Some examples for clothing might be jobs that require specific uniforms.
HEADWEAR CAPS HATS BEANIES FIRE RESCUE POLICE ARMY NAVY MARINES - WWW.BHFASHIONCO.COM
How do I comply with tax and employment laws when hiring a full time housekeeper?
My father-in-law needs to hire a full time housekeeper and he wants to know if there is a resource out there that can help him comply with all IRS tax laws and department of labor laws. Also, he's like to know if he needs insurance or any other things he should be concerned about. Thanks for the advice!
IRS Schedule H Instructions describe Household Employment Taxes:
Usually the person hired as you describe would be an employee, so your father would have to do as instructed on Schedule H. If your father hires someone from a service, he would just pay that service, no 1099 would be issued. It is unlikely that a full-time housekeeper would be considered an independent contractor/sole proprietor.
If your father needs a full-time employee to help him because of a medical condition, some of those expenses may be deductible as medical expenses. Read about medical expenses here (see Nursing Care, Home Care):
what are the rules of self employment or sub contracted?
im a hair dresser . i pay own tax and ni. we dont get paid holidays and treated as self employed but have to work 9 to 5 even if we dont get clients in but then we dont get paid. we only get paid for the work we do. we are now told we are subcontracted to work those hours. what are the laws and where do we stand
This is a big con. If you HAVE to work the hours specified by the salon, you can't be self employed. Its a way of employer's not having to pay holiday pay and NIC, etc. I would contact your local tax office and ask to be put in touch with the status inspector and ask them to give a ruling on your status. It's shameful the way employers try to dodge their responsibilities.
The sub contract situation the previous answerer speaks of relates to the construction industry.
[mage lang="" source="flickr"]california employment law payroll[/mage] In California Law??
Can the EDD (Employment Development Department) keep a 17 year old supposed lien on me,I always paid my unemployment paid, even had a payroll doing this. They took $1,000.00 from me that was mine- the supervisor of the jerk I talked with gave me a false phone number for her, I had to call the fraud unit just to get her phone number. She sounded nice and is to call me back on this Tuesday, can they put a lien on my house? Attach wages etc....they say I owe them over 14 thousand dollars and do not know what to expect....Please Help.........Thank You. I do not even have records from 17 years ago and have never heard from them............
No one can give you an answer because you have given no relevant facts except the amount of the debt.
In general, if the debt is valid then yes, a lien can be placed on any real property.
Court Backs Schwarzenegger On Minimum Wage Pay For CA State Employees
[mage lang="" source="flickr"]labor and employment law nj[/mage]
Commercial construction services
Commercial construction refers to construction of commercial projects such as office buildings, shopping centers, sports complexes, hospitals, schools and luxury hotels. Commercial building construction is not an easy task; it involves visualizing a concept and translating into reality which needs to be innovative as well as application of engineering brilliance.
Often when it comes to commercial constructions, huge capital finances are involved and invested. In fact, investments in capital property are a widely used method of retaining capital. When huge finances are involved, the legal aspects are another important aspect that needs careful consideration. Any real estate used exclusively or in parts for business purposes are considered as commercial properties. Hence, it is vital that you satisfy all the legal formalities, rules, norms and regulations that need to be adhered to in your locality before you start construction.
Companies or vendors offering commercial construction services need to sign the commercial construction agreement or contract in which a party agrees to furnish all labor materials, equipments, supplies and do all things necessary for the construction and completion of a commercial building. Essentially, the core aspect of the agreement remains the same in all countries/regions subject to a few modifications depending on the local governing laws in that area or locality or country. They must also ensure compliance with a wide range of regulatory requirements such as environmental standards, legal employment practices and such like.
As we all know, most commercial building construction require huge capital investment as well as employment of skilled employees in various departments. In the construction industry, safety regulations need to be adhered strictly. Many workers who work during the construction process need to be protected against any accidents or physical damage during the course of their work. Hence, safety is a major concern in the real estate business and companies or vendors are required to maintain a safe jobsite and minimize or avoid any health risk to their employees through proper planning, training and regular inspections. Planning ahead allows workers to see and avoid mishaps before they occur.
Implementing a successful commercial project requires a great deal of work at all levels of the project; right from conceptualization to the delivery of the project. While overseeing a building construction, a thorough knowledge of the budgets, materials and staying right on schedule ensures a successful and complete project.
About the Author
Richmond Johnson an editor of http://www.hire-a-contractor-now.com website, writes articles about Home improvement, home renovation, Bathroom remodeling, kitchen remodeling and roofing contractors. He specializes in saving the money by advising on effective constructional theories.
Stephan T. Mashel - Morganville, NJ
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HAWAII EMPLOYMENT LAW ALERT: DEPARTMENT OF LABOR TO INCREASE AUDITS
HAWAII EMPLOYMENT LAW ALERT: DOL TO INCREASE AUDITS
On March 24, 2009, the Department of Labor (“DOL”) issued a statement making clear that employers, including Hawaii employers, can expect an increase in DOL audits. The statement, issued through Secretary of Labor, Hilda Solis, can be found at the DOL’s website, http://www.dol.gov/opa/media/press/esa/esa20090324.htm.
Among other things, Ms. Solis stated that she is "committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”
In addition:
The department's Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.
Finally, Ms. Solis stated that: “I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country."
Given the expressed intent of DOL, it is critical that Hawaii employers take the necessary steps, now, to both reduce the risk of potential liability connected to a possible audit AND to prepare for audit itself.
Thus, Hawaii employers should at a minimum take the following steps prior to and during the audit:
Review pay practices and policies to ensure compliance with both federal and Hawaii state law, including minimum wage, overtime, and classification of employees (engage local counsel to help identify problem areas);
Ensure your policies and recordkeeping are consistent with the law;
Update job descriptions consistent with the actual performance of the duties and responsibilities of the positions at issue;
Keep supervisors in the loop and informed of the potential of an audit. Your supervisors are the eyes and ears of the Company and can assist it in identifying potential problem areas;
Review areas outside of wage and hour issues about which an employee could complain to a field investigator;
Establish a point person for dealing with the investigator and have all requests for information go through that person. Such person needs to have the ability to maintain the professionalism and courtesy necessary to deal with DOL, but at the same time can be firm when necessary;
As the “voice” of the Company, the representative needs to be educated on what to expect and the proper way to answer specific inquiries by the investigator;
To the extent possible, cull and make available the records requested by the investigator in advance and in a room separate from the main operations of the business;
Make employees available for interview during work hours so they are not contacted at home;
Document all conversations with the investigator and maintain copies of the documents provided to him/her throughout the audit process;
Ensure that the Company attorney is present during all interviews with supervisory employees.
After the audit is completed, it is critical that the Company not repeat any errors in policies or procedures identified by DOL. Accordingly, any necessary revisions should be made promptly with assistance of counsel.
Verify if there is such a thing as a Health card class issed by Health department in California?
QUESTION: Is there such a thing as a health card in California or not? There is some discrepancy and gray area due to different states having different laws, OK:
a Health card, being a card issued by the health department after taking a short class on clean +safe food/beverage handling procedures in the food industry for the purpose of obtaining employment (also requires a blood test for Hep.)
The health card DOES exist in Las Vegas and it is almost mandatory to work anywhere around food or drink, but does it exist in CA is my question, and is it something that may be to the benefit of a bartender to get.
Do you think the health department issues these, or the department of health services? If they even exist in CA.
One thing that I learned about requirements in California is that the requirements are not uniform through out the state. You would need to check with the Health Department for the county requirements. I can tell you that the blood test for Hep is usually not a requirement from the county, rather check with the employer to see if it is something that they require.
Sacramento Attorneys, California Lawyers, Bowman & Associates
Will Obama EMBRACE the Court's ERADICATION of REVERSE DISCRIMINATION or will Obama DEFEND his QUOTA system..?
Obama as a poster child of Affirmative Action, what you can achieve simply based on your color rather than your qualifications and experience, will he acquiesce with the will of the Court or will he challenge it?
The Supreme Court may decide that, in light of new empirical evidence suggesting some racial progress, the inflexible vision of racial equality that Congress embraced in the '60s is outdated. If so, the decisions could represent an opportunity for Obama to offer a more convincing alternative. Accepting the Court's invitation to focus on current rather than historical patterns of racism, Obama could insist that the law can respond legitimately to voting and employment policies that have discriminatory effects, but only to those where there is clear and contemporary evidence of actual racist behavior.
Oh he will defend affirmative action and color discrimination(black on white) for always..... it got him elected... the blacks are counting on him to make their lives better... Didn't you see the crying thousands at the inauguration.. saying how good their lives would be now that a black was in the White house?
Oh no, he will not stop until the blacks, even tho there are less of them in this country.. are dominant in every facet of the society whether they earn it or not.
When a black kid can get in to college without the proper educational background.. just because he is black.. over a white or , red or yellow kid.. then something is wrong.
And yes.. Obama made it that way.. so did his wife...he will keep it.. even if it isn't and has never been fair.
Human Resources : Federal Labor Law Poster Requirements
[mage lang="" source="flickr"]labor and employment law oregon[/mage]
Unlike most Chinese immigrants of his time, Gin Lin found respect and a mountain of gold
The last thing Chinese were generally despised, discriminated against and performing dangerous, backbreaking work for 60 to 75 cents a day in the American West, Gin Lin stood out in the crowd. He not only gained the respect of the business and civic leaders of southern Oregon but also became wealthy beyond most men's wildest dreams.
Fast clipper ships carried the news of the 1848 gold strike at Sutter's Mill across the Pacific. Peasants toiling in China's rice paddies heard that gold had been discovered in California almost as soon as factory workers in Boston and New York did. Soon the Chinese were calling America's West Coast Gum Shan, or the "Mountain of Gold." By February 1849, the first of the Far Eastern gold-seekers had landed in San Francisco. Hordes would follow
Like thousands of his countrymen, Gin Lin fled crushing poverty, war, overcrowding, disease and civil unrest in his homeland to seek his fortune in the gold fields of America.
Living conditions in mid- 19th-century China were almost unbearable, particularly in Kwangtung (Canton) province. For thousands of years the fertile delta of the Pearl River in southeast China had been the country's rice basket, but farms that once flourished had been subdivided and parceled out to generations of descendants, leaving plots too small to support a family. Squalor and filth along the teeming waterfronts caused typhoid, malaria, cholera and plague to run rampant. Social unrest and civil war added to the misery The Taiping Rebellion, which lasted from 1851 to 1864, claimed more than 20 million lives.
Young men who could only hope to make 10 cents a day in China, if they could find employment, jumped at the chance to earn 60 to 75 cents a day as miners or railroad workers in the New World. Not even the dangers of a Pacific voyage or the uncertainties of living in a foreign land could deter them.
Unlike most European emigrants, who came to America seeking freedom and hoping to build a new life, the Chinese came as temporary residents intent upon improving their economic plight and returning to China. Known as sojourners, they were strangers in a strange land. About half the men were married, but very few brought their wives. They sent much of their earnings home. Only 5 percent of the Chinese who came to America in the mid-1800s were women, most of those having been orphaned or sold by their families.
Ill-clad and unprepared for cold weather, some of the early sojourners froze to death. Their standard wardrobe consisted of loose-fitting light-blue denim pants, blue tuniclike shirts, white stockings, skull caps and cloth shoes with paper soles. Many wore the large conical straw, or "coolie," hats that provided some protection from sun and rain as well as storage space. Later arrivals added coats and boots to their attire. The queue, or long pigtail, which hung down the middle of the back from an otherwise shaven head, was not a fashion statement but considered a necessity. Manchu dictators forbid returning workers to re-enter China without them.
The main staple of the Oriental diet was rice supplemented by a few fresh vegetables and dried fruit when available. Because they boiled their water to make tea, the Chinese often avoided the diseases that swept through the mining camps.
The clannish ways and strange customs of the sojourners caused the white population to mistrust and resent them. One Chinese practice the whites found especially disgusting was that of exhuming their dead so the bones could be transported back to China. Father Francis Xavier Blanchet, an early resident of the gold-rush town of Jacksonville, Ore., wrote: "Whenever a child of the deceased leaves for China to visit or on business, they dig up the body, scrape the bones, and carefully transplant them in China so that their souls will go to Paradise."
Violence was commonplace in the mining camps, and the sojourners were often blamed for anything that went wrong. Since nonwhites were not allowed to testify against whites until 1862, and often did not get fair treatment in the courts even after that time, Chinese were frequently beaten, robbed and even killed with impunity. In some mining camps, shootings were almost a nightly occurrence.
Following the gold rush north, the first Chinese began trickling into southern Oregon shortly after the 1852 strikes were made on Jackson Creek, where the rowdy town of Jacksonville mushroomed almost overnight. More strikes quickly followed in the Siskiyou Mountains, as well as along the Applegate and Rogue rivers and their tributaries. By 1870 there were between 2,500 and 4,000 Chinese miners in southern Oregon.
The sojourners were welcomed to Jackson County with a $2-per-month head tax in 1857, and it was doubled in 1858. In addition, the state adopted a law in 1862 that directed every Negro, Chinaman, Kanaka (Hawaiian), and Mulatto" living in Oregon to pay an annual $5 poll tax. As if that were not enough, any Chinese engaged in any kind of trading was charged a $50-per-month fee. An article that appeared in the September 1, 1866, issue of The Oregon Sentinel, Jacksonville's Republican newspaper, expressed the resentment and open hostility directed toward the Chinese: We hope that during the present legislative session, the very important question of taxing the Chinese miners will not be overlooked.... It seems an unwise policy to allow a race of brutish heathens who have nothing in common with us, to exhaust our mineral lands without paying a heavy tax for their occupation. These people bring nothing with them to our shores, they add nothing to the permanent wealth of this country and so strong is their attachment to their own country, they will not let their filthy carcasses lie in our soil. Could this people be taxed as to exclude them entirely, it would be a blessing."
Those whites who put aside their prejudices long enough to get to know the Chinese found them, on the whole, to be peaceable, respectful, friendly dependable, generous and very hard-working. Celebration of the Chinese New Year was always observed with fireworks and candy that the sojourners happily shared with their non-Oriental neighbors. Although the mining camps and "shanty towns" in Oregon were filthy, Chinese miners practiced better personal hygiene than most of their white counterparts, taking daily baths with soap and warm water and changing their clothes before dinner.
Some may have drifted in from California on their own, but most sojourners arrived in Oregon under contract to a Chinese boss who farmed them out to work for white mine owners. The mine owner paid the boss in a lump sum and he, in turn, deducted any amount the worker still owed on his transportation across the ocean. All purchases of food and supplies were also made through the Chinese boss.
Gin Lin was such a boss. His arrival in southern Oregon went unnoticed and unrecorded, but it was soon apparent that he was different from most of his countrymen. Elmira McKee Thurman, an earlyday Oregon resident, remembered him as dark, heavy-set and rather youthful looking. Instead of the usual queue, he sported a full head of bushy hair.
Oregon did not allow Chinese to stake mining claims or own mining property yet by 1864 Gin Lin managed to buy mining property from John Wilson near the settlement of Buncom at the confluence of Sterling Creek and the Little Applegate River for $900.
White men were frequently eager to sell what they considered "played out" mines to Chinese. "The white man's philosophy was to get as much gold as he could and then move on," says Marjorie Edens of the Southern Oregon Historical Society. The industrious Chinese seemed happy to take over "played out" mines, and when they moved on to richer diggings, the claims they left behind were truly worthless.
Soon many of the laborers Gin had formerly contracted out to other mine owners were working for him on the Little Applegate River. He treated his men with honesty and fairness, even helping some of them purchase their own claims. He made sure the claims were legally recorded by Jacksonville attorney Charles Wesley Kahler and that the proper taxes were paid.
Gin's crew worked hard for him. Rich veins of gold were uncovered at his mining operation, and the Gin Lin Mining Company began to play an important role in southern Oregon's economy.
Gin continued to work his Little Applegate mine through the 1870s until the deposits waned. In 1881, he purchased more claims in the Palmer Creek and Flumet Flat area farther up the Applegate River.
As Gin Lin's wealth grew, so did his status among Jacksonville's citizenry. The sight of him driving a handsome buggy pulled by a high-stepping horse around town became a familiar one. He became friends with several of the area's most prominent business leaders, including pioneer photographer Peter Britt, who took several photographs of him; banker C.C. Beekman; attorney Wes Kahler; and cabinetmaker David Linn.
David Linn's son, Fletcher, described the Chinese miner in his book Memories: "Gin Lin was a large, robust character, not at all like the 'Coolie' or laboring Chinese who constituted the laboring force in his operations; and on one of his visits to 'China Town,' he came across the street to meet father, and introduced himself as 'Gin Lin alle same Dave Linn's cousin,' and he and father became quite good friends."
Gold deposits found along the Applegate River and its tributaries were soon depleted; new mining methods had to be developed to excavate the yellow metal buried in ancient streambeds along the hillsides. Hydraulic mining was the answer, and Gin Lin was the innovator of this type of mining in southern Oregon. He had the equipment he needed hauled in by pack train from Crescent City Calif, and set his Chinese crew to digging water ditches.
Hydraulic mining used pressurized water to loosen the packed gravel of the slopes. The success of hydraulic mining depended upon a reliable source of water. In order to divert water from the larger streams to the mining operations, the Chinese used picks and mattocks to dig hundreds of miles of ditches through the dense brush and rocky slopes of the upper Applegate Valley Many of these ditches can still be seen.
Water from the ditch flowed into a large wooden structure called a"headbox" From the headbox it was diverted into a penstock made of riveted steel pipes that lined a trench leading downslope. The abrupt drop in elevation increased the water pressure. The penstock pipe delivered the water to a large nozzle the miners called a "giant." Water blasted from it into the exposed hillsides. Loosened material was washed through a series of sluice boxes, or wooden troughs, which separated the gold-bearing silt from the gravel. Worthless gravel and cobbles were cast aside into tailing piles.
Fletcher Linn told about visiting Gin Lin's hydraulic mining operation: "When I was home from college for a brief visit on Christmas in 1887, father suggested that I join him on a Sunday trip to visit Gin, as he had often asked father to do. We hitched a horse to the light buggy, and started very early as the mine was ten or twelve miles from Jacksonville, over the hills into the Applegate Valley When we arrived, the operation was closed down for a 'clean-up'; so we missed seeing the operation, but 'Gin' surely entertained us in showing us some of the results of his week or ten days run. I had seen several other hydraulic operations, but never one to equal this one of 'Gins.' The work done, and earth removed by those huge Hydraulic Giants, was really amazing. The 'clean up' was the largest of its kind that I ever saw; and the Chinese workers were carrying out the gold in small buckets full, under the protection of a couple of armed guards pacing the upper ledge or rim of the mine. All 'Gin' would say as he glanced at the buckets and then to father, was 'Putty good, Cousin, Putty good.' We had a fine visit with 'Gin' and a mighty interesting day"
As a result of his mining activities in the Applegate Valley Gin Lin deposited between $1 million and $2 million worth of gold dust and nuggets in the Beekman Bank in Jacksonville. He became a familiar face in town.
Gin Lin went to great lengths to keep good relations with the white people of the community even employing several white men in his mines. He was known to shut down operations periodically through the summer months so farmers could use the water from his ditches to irrigate. It is also said that when an Indian burial was exposed, he ordered that the area be left undisturbed.
It is known that Gin Lin had at least four different wives while in southern Oregon. He made several return trips to China, each time bringing back a delicately featured, almond-eyed beauty dressed in fine silks and brocades and younger than her predecessor. He would then simply sell his former spouse to one of his men. Gin Wye, born in Jacksonville, was the son of Gin Lin's youngest and last wife, Gen Shen.
When the gold grew scarce in southern Oregon as in other parts of the West, most of the Chinese went to work on the railroads. They provided the railroad bosses with a reliable yet inexpensive source of labor.
Of the several thousand sojourners residing in southern Oregon during the height of the gold-mining era, only a handful remained by the turn of the century The 1900 census counted a mere 43 Chinese residents in Jackson County
No one is exactly certain of Gin Lin's fate, but he disappeared from southern Oregon in the late 1800s. He may have left because of racism or simply because he had made enough money and wanted to return to his homeland, or, as Marjorie Edens says, "all of the above." One story says that he sold his Oregon holdings, withdrew his money from the Jacksonville bank (hiding it on his person) and sailed in 1894 for China, where he was robbed and fatally beaten as he stepped off the ship onto the wharf at Canton. Another version of the story says he lived in China three years with his wife and son before his death in 1897.
Although Gin Lin's fate may never be known, his legend lives on in southern Oregon. Today the U.S. Forest Service maintains the Gin Lin Trail above the Applegate River where visitors can take a self-guided tour of Gin Lin's Palmer Creek operation. Part of his story is etched on the moss-covered tailing piles, the overgrown water ditches and the hydraulic cuts in the "mountain of gold" that made him rich.
Wonkbook: Dems release immigration proposal; Lindsey Graham upset; Goldman facing jail time
Top Stories: Democrats release immigration proposal: "Their new proposal provides for a path to citizenship for some of the estimated 11 million people in the U.S. illegally, and it creates a guest-worker program," reports Laura Meckler. "But the measure also calls for more federal enforcement a... Overtime Exempmt Part 2: The Administrative Exemption
[mage lang="" source="flickr"]employment law osha[/mage] Do people here realize Corporations exist to make a profit?
The main goal of a Corporation is to make money for its owners (Shareholders). It is NOT to provide employment for people.
I read many people complaining about shipping jobs overseas, for $1.50 a day, an hour, whatever.
Is that $1.50 BETTER than what they would have if the Corporation did NOT move its facilities there? If we impose OUR minimum wage standards on other countries, and OSHA laws, child labor laws on other cultures, is that a form of "Nation Building", or America forcing it's way on the rest of the world?
I am not in favor of 5 year olds losing their arms, or lives in a factory over the other side of the world.
The same people complaining about jobs being moved overseas will be the same people complaining when bananas cost $2.50 per pound instead of $.79 because of the increased cost of labor.
So what is the solution, people??
Thank You, As Always
It wasn't always. There was a time when Wal-Mart was all "Made in the USA." We used to be able to be proud of our American institutions. But since then, they took the profits we made for them working hard, and fired us and hired Mexicans, Illegal Immigrants, and Chinese Children to work in their factories.
Downsizing the prison-industrial complex
California has created, through its laws and policies, a hugely bloated correctional system, says Barry Krisberg, a well-known advocate of criminal-justice reform. With 170,000 prisoners held in dozens of overcrowded facilities located mostly in rural areas, the system is financially unsustainable -- setting the stage, potentially, for smarter policies, says the Berkeley Law distinguished senior ... Texas Sen. leaves Austin law office, joins another
[mage lang="" source="flickr"]california employment law overtime hours[/mage] Is there a limit on overtime hours for a salary worker in California?
My husband gets paid salary and plugs in more than 8 hours a day (10-12 hours sometimes). He doesn't demand to get paid for it, he does it because he needs to get all his work done. However his employers keep saying that he will get them in trouble because he is working beyond a "maximum limit" of hours. Is this true? Is there such a law, or does it depend on the employment contract also?
To answer your question, first, let’s remember that it doesn’t matter whether your husband is salaried or whether he is paid by the hour. The real question is what are his duties. If his job duties don’t make him “exempt” under California law, then he is entitled to overtime pay for any hours worked over 8 hours in any one day. He is exempt from overtime compensation only if his rate of pay computed by the hour is at least $16 per hour, and, he is a manager or supervisor, or is a professional such as a licensed engineer, or is directly involved in administering company policy at the highest levels of the company.
When his employer is commenting about your husband working long hours, the employer may be concerned about whether your husband will l want to be paid time and one half for his overtime hours. If your husband is what we called non-exempt, in other words is not an exempt employee under one of the categories I mentioned above, then his employer would have to pay him overtime. If he is an exempt employee, there is no law which would limit the maximum hours of work.
For help with any employment law issue, visit our website at www.rjtlawfirm.com
Wage and Overtime Disputes Lawyer Lancaster, California
[mage lang="" source="flickr"]employment law lunch hour[/mage] Can anyone help with UK employment law ?
I'm currently employed to work 40 hours per week from 8:30 to 17:00 monday to friday with half hour lunch unpaid, And Saturday mornings from 8:30 to 12:30 on a rota basis. The position is salaried (no overtime applicable). My gripe is that I do not get paid at all for working Saturdays. I spoke to my boss and he said that if I don't work Saturdays then I should find another job.
Is this Legal?
Any advise would be great.
What does your contract say? If it says 40 hours then that takes care of Monday-Friday and saturday should be paid in addition. Your boss simply cannot make you work extra hours without pay, especially on a regular basis. However if youre on a salary, and youre contract doesnt stipulate the exact hours (which it should, either the times or hours per week) you need to multiply your gross pay x 12 and divide by 52 (to get a weeks wage) then divide by 40+ the average hours you do on a rota ie +2 if its every other saturday, +1 if its once a month, then youll have your hourly pay which should be over the nmw which is £5.25 over 22 (i think).
If its less than national minimum wage, you can complain to an Industrial tribunal as this is a breach of your statutory rights (as you can if your contract doesnt state the hours).
To not pay you is also a breach of your statutory rights, its an 'illegal deduction from wages' and you can also take your boss to a tribunal to get this back.
Best bet is to contact your local CAB or ACAS or an employment solicitor if you have any in your area. To do anything you need to first put in a grievance to your employer and there are specific procedures to follow if you want your case to be successful.
So, business managers up and down the country are preparing to bid farewell to 2008 and usher in a whole new year. Over the last 12 months, we've seen changes to flexible working, dispute resolution and even how companies that cause a person's death are dealt with. What's in store for 2009? Well, here are a few changes to business law that we will definitely see occurring, so prepare to update all your employment contracts and business documents as necessary!
Redundancy and Unfair Dismissal Becomes More Expensive
At a time when there may be many thousands of redundancies, the cap for maximum redundancy and unfair dismissal payments have been increased. When it comes to calculating the weekly wage for statutory redundancy pay, the maximum has increased from £330 to £350. The maximum statutory redundancy payment or basic award is now £10,500, up from £9,900, and the maximum compensatory award for unfair dismissal has gone from £63,000 to £66,200.
Right to Time Off for Public Duties Expanded
In April 2009, the rights to time off for public duties will be extended to include membership of a wider range of roles including youth offender panels, court boards and probation boards. It's worth noting that although they will be given the time off, there is no obligation to pay them for this time.
Right to Request Flexible Working Expanded
Currently, the right to request flexible working hours in employment contracts is only open to parents with children under the age of six or who are disabled. In April next year, this right will be extended to parents of children all the way up to 16, opening up the option for some 4.5 million more parents. Under the legislation, employers won't be obliged to grant the request but they will have to have legitimate reasons to reject it.
Trainee Doctors get Reduced Maximum Working Hours
In August, the notoriously overworked trainee doctors will have their working hours reduced in the final stage of the phase-in to a 48 hour week. In 2004, the maximum was reduced to 58 hours, and in 2007 it was reduced to 56.
Tips no Longer Count Towards Minimum Wage
Under current rules, employers can process service charges and gratuities paid through the payroll as part of their obligation towards minimum wage. From 2009 this will no longer be allowed.
Minimum Holiday Time Increased to 28 Days
In 2007, the minimum days paid leave for most UK workers went up to 24 days including bank holidays. In April 2009, the second part of this act is passed and it is raised to 28 days including bank holidays. This will have no effect on those giving bank holidays in addition to the minimum holiday day allocation, but if you are only giving your employees 24 days in total at the moment, be sure to update your business documents and employment contracts to reflect the changes.
Acas Code of Practice for Discipline and Grievance Procedures
April also sees the revised Acas Code of Practice on disciplinary and grievance procedures introduced. This means that where there is a breach in the Code of Practice, a tribunal can change the award granted by 25% up or down.
Centralised Vetting System for Workers Dealing with Children and Venerable Adults
In October, the Safeguarding Vulnerable Groups Act will come into force, creating a centralised vetting system for those banned from working with both vulnerable adults and children. Employers will be able to make checks online using a constantly updated database and, where possible, employers will be informed if an individual in their employ is added. There will be fines of up to £5,000 for employers who either knowingly employ people from the list for these roles, or fail to make relevant checks.
Health and Safety Offences Act
At the very start of 2009, the Health and Safety Offences Act will come into effect. As long as you are doing everything that needs to be done with regards to health and safety already you can safely ignore this one, as it only changes the available punishments. From January 16th, a maximum 2 years imprisonment and/or a maximum £20,000 fine will be available to those who breach Health and Safety regulations. Additionally, while such offences were only available for prosecution in the Magistrates Court, from January they can be tried in the Crown Court. With such hefty punishments soon to be available, it might be a good idea to ensure your business documents pertaining to health and safety are fully in order, just in case!
These aren't the only laws and regulations changing in the next 12 months, but they are amongst the most important to most business owners. Make sure that you're aware of the upcoming changes that apply to you and get your business documents and employment contracts in order for when the laws change!
About the Author
Iain Mackintosh is the Managing Director of Simply-Docs. The firm provides over 1100 UK documents covering all aspects of business from holiday entitlement to employment contracts
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Workers Compensation NewsLine Video Report for 10/23/2007
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Sexual Harassment Policy Guidelines Part I
Sexual Harassment Policy Guidelines – Part I
Permission is hereby granted to modify and use the information in this draft sexual harassment guideline, provided you include reference to the author as shown at the end.
We shall take all reasonable steps to see that this sexual harassment policy is followed everyone in our organization who has contact with employees. This prevention plan will include training sessions, ongoing monitoring of the work site and a confidential employee survey to be conducted and evaluated each year.
Sexual harassment refers to all types of unwanted sexual attention. Sexual harassment does not mean occasional compliments of a socially acceptable nature. Sexual harassment refers to conduct which is offensive to the individual, which harms morale, and which interferes with the accomplishment of our organization mission. This includes pressure to provide sexual favors, and offensive, intimidating comments or actions concerning one's gender or sexual orientation.
Four basic types of sexual harassment:
1. Verbal harassment: Sexually suggestive comments, e.g., about a person's clothing, body, and/or sexual activities; sexually provocative compliments about a person's clothes or the way their clothes fit; comments of a sexual nature about weight, body shape, size, or figure; comments or questions about the sensuality of a person, or his/her spouse or significant other; repeated unsolicited propositions for dates and/or sexual intercourse; pseudo-medical advice such as "you might be feeling bad because you didn't get enough" or "A little Tender Loving Care (TLC) will cure your ailments"; continuous idle chatter of a sexual nature and graphic sexual descriptions; telephone calls of a sexual nature; derogatory comments or slurs; verbal abuse or threats; sexual jokes; suggestive or insulting sounds such as whistling, wolf-calls, or kissing sounds; homophobic insults.
2. Physical harassment: Sexual gestures, e.g., licking lips or teeth, holding or eating food provocatively, and lewd gestures such as hand or sign language to denote sexual activity; sexual looks such as leering and ogling with suggestive overtones; sexual innuendoes; cornering, impeding or blocking movement, or any physical interference with normal work or movement; touching that is inappropriate in the workplace such as patting, pinching, stroking, or brushing up against the body, mauling, attempted or actual kissing or fondling; assault, coerced sexual intercourse, attempted rape or rape.
3. Visual harassment: Showing and distributing derogatory or pornographic posters, cartoons, drawings, books or magazines.
4. Sexual favors: Persistent pressure for dates, unwanted sexual advances that condition an employment benefit upon an exchange of sexual favors.
It is not permissible to suggest, threaten or imply that failure to accept a request for a date or sexual intimacy will affect an employee’s job prospects. For example, it is forbidden either to imply or actually withhold support for an appointment, promotion or change of assignment or suggest that a poor performance report will be given because an employee has declined a personal proposition. Also, offering benefits such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations or reclassifications in exchange for sexual favors is forbidden.
Any employee found to have violated this policy shall be subject to appropriate disciplinary action according to the findings of the complaint investigation. If an investigation reveals that sexual harassment has occurred, the harasser may also be held legally liable for his or her actions under provincial and federal law. Anyone making a false claim of sexual harassment will also be subject to disciplinary action.
Any employee bringing a sexual harassment complaint or assisting in investigating such a complaint will not be adversely affected in terms and conditions of employment, or discriminated against or discharge because of the compliant. Complaints of such retaliation will be promptly and thoroughly investigated.
Sexual harassment can occur in any situation, but is especially common in situations where there is a power imbalance between the perpetrator and the victim, due to gender, race, sexual orientation, status or rank differences. Sexual harassment, however, can also occur between peers. Both women and men can be victims of sexual harassment, although it is most common for women to be harassed by men. Sexual harassment also occurs between members of the same sex.
Sexual harassment differs from healthy sexual attraction because it is unwelcome and unsolicited. Sexual conduct becomes unlawful only when it is unwelcome. The challenged conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. NOTE: An employee who was previously involved in a mutual consenting intimate relationship with another person maintains his or her entitlement to protection from sexual harassment, but s/he should inform the other party that any further sexual advances are unwelcome.
Sexual harassment degrades all persons and creates a hostile work environment. It is extremely costly for employers as well as damaging to employees. The effects of sexual harassment on the complainant may include loss of self-confidence and self-esteem, physical symptoms of stress, diminished work productivity, and low morale.
To fight sexual harassment, remember four tactics: confront, report, document, and support.
CONFRONT the harasser. Say No Clearly. Inform the harasser that their attentions are unwanted. Make clear you find the behavior offensive. If it persists, write a memo to the harasser asking them to stop; keep a copy.
REPORT the problem immediately, verbally and/or in writing directly to your supervisor, or to the supervisor of the accused, and to your union steward. Our door is always open and anyone who has been harassed or thinks harassment is occurring, can seek our confidential advice. We will speak with the accused at your request and inform them about illegal conduct and its consequences. We have a zero-tolerance policy for sexual harassment. If the incident is confirmed, the offending employee faces the following possible sanctions: verbal or written reprimand, negative evaluation, denial of promotion, poor recommendations, suspension, demotion, forced resignation, and termination. We will make every effort to create an atmosphere of comfort for recipients of sexual harassment to request assistance in the resolution of complaints, but at the same time we will also protect the rights of the accused until proven guilty.
Note: A single sexual advance, unless severe, may not constitute harassment unless it is linked to the granting or denial of employment or employment benefits. The unwelcome, intentional touching of a person’s intimate body areas is sufficiently offensive to be considered severe, and even a single incident can be considered as harassment. Asking someone for a date is not considered severe. But a repetitive series of non-severe incidents will be considered harassment if the offender was told to stop. It is important for the victim to communicate that the conduct is unwelcome, particularly when the alleged harasser may have some reason to believe that the advance may be welcomed such as a previous consenting relationship.
SEXUAL POLLUTION
There are some acts perceived by the recipient to have a "sexual nature" that are offensive and annoying, but may not be sexual harassment. These offensive behaviors in the workplace pollute the working environment. Therefore, these acts have been labeled sexual pollution. Sexual pollution has the potential of becoming a sexually harassing act. It is an offensive act and should be considered improper. Examples of sexual pollution are: continuous "pet" name calling, such as "baby," "sweetie, "or " honey"; referring to an individual as a "hunk," "fox," or "broad"; referring to men in general as "dogs," "swine," or to women as "bitches," "wenches, " or "chicks"; remarks of a sexual nature, open displays of written and pictorial erotica, or nude photographs or posters (such as a nude magazine centerfold) in the workplace, and continuous gift giving with the intention of getting sexual favors in return.
A single act of sexual pollution by itself may not constitute sexual harassment. However, continuous acts with the appearance of a sexual nature probably would be. The "reasonable person” standard will be used to determine if it is or not.
DOCUMENT the harassment. While the incident is still fresh in your mind, write down what happened, where, when, and how you responded, if possible, word for word. Include the names of witnesses, if any. Keep notes in a journal or notebook to show a continuous record. Send a dated, certified, return-receipt letter to the harasser, asking that the harassment stop, and keep a copy for yourself. Use your telephone answering machine to tape phone calls from the harasser, and save phone messages that are left for you. Keep the records in a safe place, away from work. Documentation will be essential if you must defend yourself in court or before an administrative hearing panel. Document your work. Keep copies of performance evaluations and memos that attest to the quality of your work. The harasser may question your job performance in order to justify his behavior.
SEEK SUPPORT from others. Talk to a friend, colleague, or relative, an organized group, or counselor, and your supervisor or someone in personnel that you trust. Not only will you benefit, you may learn of others who have had similar experiences who can offer strategies for dealing with the harassment and support. Look for witnesses and other victims. You may not be the first person who has been mistreated by this individual. Ask around discretely; you may find others who will support your charge. Two accusations are much harder to ignore. Get the union steward involved right away.
REMEDIES AVAILABLE TO VICTIMS OF SEXUAL HARASSMENT
If you have been discriminated against on the basis of sex, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay and other remuneration. You may also be entitled to damages to compensate you for future pecuniary losses, mental anguish and inconvenience. Punitive damages may be available, as well, if an employer acted with malice or reckless indifference. You may also be entitled to attorney's fees.
ARE YOU THE HARASSER?
Those accused of sexual harassment are often surprised to learn how their behavior is perceived by those who feel victimized by such behavior.
• Review your attitudes and actions toward others. Examine how others respond to what you do and say. Is your behavior sex-neutral and bias-free?
• Imagine yourself a victim of unwelcome sexual attention by someone having control over your career or livelihood.
• Consider the impact you have on other's attitudes toward their work and self-esteem.
• Do not assume that your colleagues, peers or employees enjoy sexually oriented comments about their appearance, or being touched or stared at.
• Do not assume that others will tell you if they are offended or harassed by what you say or do.
• Be aware of other's feelings and responses to sexual harassment. Could your behavior cause others to experience the vulnerability, powerlessness, and anger described by victims?
Permission is hereby granted for you to modify and use the information in this article provided that you include a reference as follows:
Al Link and Pala Copeland own and operate 4 Freedoms Relationship Tantra. They regularly host lover's romantic weekends near Ottawa Canada, and weeklong retreats in exotic locations. For more info Visit www.tantra-sex.com, www.sexyspiritualrelationships.com and their blog www.askaboutloveandsex.com or send email: 4freedoms@tantraloving.com
True or False about California and federal lwa require you take aids test prior to new employment?
California and federal law may require that you take an "AIDS test" as a prior condition for new employment or to obtain medical benefits for the first time. TRUE or FALSE?
this does not mean that every employer asks, do they have the RIGHT by LAW to require it?
It's medical testing and subject to medical privacy laws. Such laws permit such tests in certain industries and positions out of necessity for the public safety.
For medical benefits, you cannot be tested for one specific medical condition in order to qualify for coverage, whether for employment or for private insurance. You could be required to take a general physical test which covers a range of conditions. but HIV/AIDS cannot be singled out for exclusive testing.
Bryan King on the 2008 California Employment Law Update
July 14 (Bloomberg) -- Jiang Bo says he drove a cement truck for China’s Shenzhen Antuoshan Investment & Development Co. 12 hours every day for seven years without overtime pay.
A national labor contract law implemented Jan. 1, 2008, was supposed to limit work hours and ensure severance pay. A week later, the concrete company asked Jiang to sign a contract setting his base salary at 810 yuan ($119) a month, 45 percent less than he usually earned, to avoid additional overtime costs, he says. Jiang refused and was let go without compensation.
Employers ignoring a law designed to mute labor discontent prompted Chinese workers to file double the number of claims last year with courts and arbiters, the government says. The trend leaves international manufacturers open to potential consumer backlash that may stem from any abuses. U.S. companies such as Wal-Mart Stores Inc. and Nike Inc., main Chinese manufacturer of shoes, said they’re training Chinese suppliers on the rules and inspecting them for compliance.
Beaverton, Oregon-based Nike held workshops with contract factories after the law took effect to ensure they understood its ramifications and Nike’s expectations, said Kate Meyers, a spokeswoman for the sportswear company.
Apple Suppliers
Apple Inc., which relies on Chinese manufacturers for its iPhones and iPod music players, found 45 of the 83 factories it audited last year didn’t pay proper overtime and 23 provided less than minimum wage, according to its 2009 progress report on supplier responsibility. The Cupertino, California-based company required them to adjust practices to ensure correct payments, it said in the report.
Apple has been auditing how its Chinese suppliers treat their workforce since 2006, spokesman Steve Dowling said. The number of units audited more than doubled last year from 39, and the company trained more than 400 of its employees to monitor compliance with its factory standards, according to the report. Apple also instructed more than 27,000 Chinese supplier employees and managers on worker rights and social responsibilities, the report found.
Little Incentive
The Electronic Industry Citizenship Coalition, whose members include several Meitai contractors, said in an April 3 statement that corrective actions were to be taken. The plant is making improvements, Meitai spokeswoman Catherine Lien said.
Meitai is not a direct Chinese supplier for Round Rock, Texas-based Dell or Palo Alto, California-based Hewlett-Packard, spokeswomen for each company said. Both companies asked their direct Chinese suppliers to do an investigation and changes are being implemented, they said.
Chinese suppliers have little incentive to abide by the rules, said Bama Athreya, executive director of the International Labor Rights Fund in Washington.
Worker rights abuses have long been an issue for U.S. and European companies that turn to developing nations for cheap labor, slashing prices for consumers. They have attempted to protect themselves by setting codes of conduct for Chinese suppliers and instituting audits to measure compliance.
[mage lang="" source="flickr"]california employment law termination pay[/mage] Immigration: H1B Primer -- Your guide to the H1B working visas for specialty occupations
This is the first of a two-part question and answer series on H1B working visas for specialty occupations. Hayward Employment Law Attorney Harassment Lawyer California
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California Business Law Attorneys – How Important are They
Legal services are often deemed unnecessary and are often seen as mere additional expense. But you may be overseeing the fact that California business law attorneys can help a great deal in corporate dealings and operations.
They are not only good in issues of litigation such as when you are being investigated for securities fraud by the Security and Exchange Commission or when a customer charges against you for product liability. Business attorneys can also prevent various legal issues that can come out of forming a business, whether a small start-up or a large corporation.
Engaging in the world of business can involve tremendous tasks, from hiring employees to tax issues, from registering and licensing to negotiating business transactions, so on and so forth. It entails so many concerns that it will just be impossible to get your hands on all these alone. You may ask, what makes it so important to seek help from a lawyer?
• A business attorney can make sure your company is in observance with corporate official procedures. A business attorney can draft resolutions, contracts, minutes, etc.
• A business attorney can present direct access to legal guidance with familiarity of your business in times of setbacks to assess circumstances when they happen and give you timely proposals and assistance.
• A business attorney can modify or re-establish crucial agreements like shareholder, operating or purchase agreements.
• A business attorney can advice you with your legal options and ways to resolve disputes
• A business attorney can give a classified sounding board to aid, evaluate, and develop company issues, strategies and plans.
• A business attorney can organize employee policies/handbooks and employment agreements defending you from unlawful termination and discrimination charges.
• A business attorney can identify probable problems that you may not expect with your company, its operations, its employees, policies and procedures.
• A business attorney can arrange and examine business documents and contracts. Even though there are a number of pre-printed forms and self-help legal guides, you must not depend on these resources completely. Business law can be complex, and errors could be costly.
• A business attorney can negotiate on your behalf for the sale of your company or the possession of another company or its assets.
• A business attorney can negotiate financial arrangements.
• A business attorney can help you in getting State and Federal licenses your business may call for.
• A business attorney can help you protect your company’s creative works and intellectual property.
How do you choose the right business law attorney in California? Hiring a corporate legal counsel you can trust and rely on is of utmost importance. You need to be at ease enough with your lawyer to discuss confidential matters with him or her. You also need a counsel whom you can have confidence with.
In addition, find an attorney who you can communicate with easily, one who can keep in touch with you regularly, and a person who finds time to meet or talk with you personally to discuss your concerns.
It is highly advisable that you get a business attorney who has the necessary background experience that will meet your legal needs. Seek one who has expertise with business laws, and who is well versed, knowledgeable and skilled with business legal matters.
Though hiring a business attorney does entail financial expense, the little amount you would be spending will not compare to the thousands of dollars your company would be paying in case you are faced with contractual or employment disputes. Having appropriately arranged contracts at the onset may avert the matter from ever proceeding to a lawsuit.
Our California attorneys have solid background in handling various cases involving the Business Law. For free evaluation of your case, log on to our website and fill out our form.
About the Author
Jinky once aspired to become an hotelier. Now, she hopes of becoming a successful doctor. She intends to pursue this dream in the near future. In the meantime, she’s glad for the opportunity to enhance her writing skills while working as a content writer.
CA State Capitol Rally for the Employee Free Choice Act - Harley Shaiken of UC Berkeley
have lnformation concerning,suit to be filed against major city major bank,all idividuals involved.
regaurding civil rights violation,civil lawsuit employment law suit
If your suit is going to make any lawyer drool, you can go under your state's web page and there is usually a list of lawyers who do Pro Bono work. You can also find a link off of www.findlaw.com. It's a great website for legal info.
Overtime Law Violation Information: Find a Lawyer, Attorney,
Leaders shocked at vet aid gap
When a veteran acquaintance showed up at his front door on Christmas Day, threatening to end his life, Allan Morrison said he saw a seriously broken safety net in Wasco County and surroundings for gorge-area veterans. vzume.com - Sean McMahan Employment Interview (law,sf,ca)
Mexican official to update on security issues
Eduardo Arnal, consul general of Mexico, will update the Americas Executive Forum on security issues in Mexico, 11:45 a.m. Thursday at the Crowne Plaza Hotel, 1450 Glenarm Place. For details, call 303-462-1560. Number of Reed-Smith Labor and Employment Lawyers Doubles in California
Blarney Castle chief: Tourists want to be served by Irish staff
THE owner of one of Ireland’s biggest visitor attractions has claimed the tourism industry needs to keep Irish people instead of foreigners to curb the loss of overseas visitors. Overtime Pay / Atty. Bruce Coane
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With social inclusion and improving human resource development continuing to top the government’s political agenda, Prime Minister Manmohan Singh promised to find resources to convert the promise of Right to Education law into reality. You Are Not Alone Anymore
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Small business employees FAQ
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Employment Law Requirements
Are you paying attention to employment law requirements? If you aren't, you should be. Not only are you required to follow specific regulations concerning employment law, but you are also required to notify your employees of their employment law rights by placing an employment law poster in a conspicuous place in your business where your employees will be likely to see it, such as an employee break room. There are eight basic Federal employment laws that you should be aware of and understand.
The first of these is Title VII of the Civil Rights Act of 1964. This employment law prohibits discrimination on the basis of race, color, religion, national origin and sex. In addition, sex discrimination on the basis of pregnancy and sexual harassment is also prohibited under this employment law.
Next, there is the Civil Rights Act of 1966. This employment law prohibits discrimination based on race or ethnic origin.
The Equal Pay Act of 1963 prohibits employers from paying different wages to men and women that perform essentially the same work under similar working conditions.
Most employers have heard of the Americans with Disabilities Act, but do not understand how this employment law can impact them. This law prohibits discrimination against persons with disabilities.
The Immigration Reform and Control Act of 1986 prohibits discrimination on the basis of national origin or citizenship of persons who are authorized to work in the United States.
The Age Discrimination in Employment Act, also known as ADEA, prohibits discrimination against individuals who are age 40 or above.
The Equal Employment Opportunity Act prohibits discrimination against minorities based on poor credit ratings.
The Bankruptcy Act prohibits discrimination against anyone who has declared bankruptcy.
In addition to these employment laws, you are also subject to the following employment laws.
The Occupational Safety and Health Act provides specific regulations regarding the safety and health conditions of employers and employees in all 50 states as well as the District of Columbia, Puerto Rico and other U.S. territories
FMLA, the Family Medical Leave Act, allows employees to take unpaid leave from their jobs under specific conditions.
Under the Employee Polygraph Protection Act Labor Law, private employers are not allowed to use lie detector tests for either pre-employment screenings or during the course of employment.
FLSA, the Fair Labor Standards Act, provides for minimum wage and overtime pay standards as well as recordkeeping and child labor standards in private as well as public employment.
Beyond the major Federal employment laws, you will also need to make sure that you are in compliance with state employment law as well. Each state may provide for employment laws in addition to the federal employment laws mentioned above. For example, California employment law covers several areas such as unemployment labor law insurance, temporary services or leasing labor law and state disability labor law.
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Ed Koch: Questioning Sexual Orientation Is Out of Bounds
May 17, 2010 Solicitor General Elena Kagan's sexual orientation is the subject of much discussion in blogs and mainstream newspapers. The White House response denied... Measure 49 Public Hearing Oregon Legislature on Measure 37
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The Essence of Employment Law
We work to live; we do not live to work.
As early as early adulthood, employment is one of this life’s major concerns. Actually, there are thousands federal laws and state statutes, administrative regulations and jurisprudence in the United States which deal with labor or employment law.
Employment law is very broad. But the most important specific areas include the following:
Collective bargaining
Employment discrimination
Unemployment compensation
Pension
Workplace safety
Workmen’s compensation
COLLECTIVE BARGAINING
The National Labor Relations Act is the main law governing collective bargaining. It expressly gives employees the right to collectively bargain and join unions. It is applicable to most non-agricultural employees and employers who are engage in some aspects of intestate commerce.
Collective bargaining is composed of negotiations between the employees and the employer to determine the conditions of employment such as wages, work hours and compensation and benefits, among others.
Most states have laws, which further regulate collective bargaining and make collective agreements enforceable under state law.
EMPLOYMENT DISCRIMINATION
Discrimination laws prohibit discrimination based on race, gender, religion, national or ethnic origin, physical disability, age and sexual preference by employers.
Bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment are discriminatory practices.
The Federal Constitution and some state constitutions give additional protection where the employer is a government agency or the government has taken significant steps to foster the discriminatory practice of the employer.
UNEMPLOYMENT COMPENSATION
This is insurance for those who are unemployed because they are terminated without the fault of their own. Monetary payments are given to terminated employees until such time that they find a new job.
PENSIONS
Employees continuously receive this monetary compensation from their employers even after retirement.
There are two main forms of pensions, they are:
defined benefit plan
defined contribution plan
Defined benefits plan is based on the length of the employee’s service and his wages.
Defined contribution plan is based on the employer’s regular deposit into an account secured for each employee.
WORKPLACE SAFETY
Workplace safety laws establish regulations designed to eliminate personal injuries and illnesses from happening in the workplace. These laws are primarily composed of federal and state statutes.
The Occupational and Safety Health Act (OSHA) is the main law which protects the health and safety of workers in the workplace. It is Congress which enacted this law.
All private employers who are engaged in interstate commerce are subject to the regulations promulgated under OSHA.
WORKMEN’S COMPENSATION
For those who are injured or disabled on the job, these laws give them fixed monetary award as a matter of right without the need of an action in courts.
Under these laws, dependents of workers who were killed while working or suffered work-related illnesses and died will also be given benefits.
While majority of these laws can be considered pro-employees, some were also designed to protect employers by limiting the amount an injured employee may received from the former.
Jamil Estorninos is currently jumbling work and law school. He is now only 5 units away from his law degree but 1.5 million miles away from his dream – to become the next John Grisham. He writes while waiting to become a force to reckon with in the legal world.
Palin to Obama: 'Do your job, secure our border'
Former vice presidential candidate Sarah Palin joined the national battle over Arizona's controversial new immigration law Saturday, appearing with Gov. Jan Brewer in Phoenix to denounce the Obama administration's criticism of the law. (CNN) - Former vice presidential candidate Sarah Palin joined the national battle over Arizona's controversial new immigration law Saturday, appearing with Gov ... Law Talk Today: Episode 13 (Part 1/3)
Viewers, actors will miss ‘Law & Order’
“Law & Order” is as dead as its weekly homicide victims: NBC has canceled the series, the network announced Friday, just as it was creeping up on “Gunsmoke” as the longest running prime time drama ever to appear on television. Clang-clang. We are stunned. We’re speechless. We called a serious … PROCEDURES TO GET FMLA LEAVE
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Know Different Acts In Employment Law
As there are many countries in this world, there are several employment laws, which apply. Such laws have been drafted so as to look after the rights of workers. They are also a source of employment advice to both employees and employers. Here are some of the federal laws.
Civil Rights Act Of 1866 And 1991: This particular employment law came into practice in 1886 but was however revised in 1991. Its aim was to make sure that all citizens from all states had equal employment rights. The rights in question were related to making or enforcing the contract documents, for suing and also giving evidence. All citizens are expected to get the same punishment or penalties for all felonies or crimes committed. Changes that were made in the 1991 amendments however made it possible for employees to sue the state for changes in conduct after the contract has been signed.
Occupational Safety and Health Act: The laws aim is to make sure that any dangers in the places of work are minimized. Training programs and holding of workshops are used to teach the employees on various safety and heath precautions that should be upheld in the work place.
Fair Labor Standards Act: This federal employment law ensures that the minimum wage that is paid to employees is 5.15 per hour. Those who are under the age of twenty can be paid a minimum of 4.25 per hour. The overtime payable to a worker should be one and a half times more than the regular pay for every hour you work overtime. The overtime should not be more than forty hours in a week. Men and women are supposed to get the same payment for work done and the only difference in payment should come about because of the level of skill that an employee has.
Worker Adjustment & Retaining Notification Act: This act makes it necessary for companies to give their employees two months notice before closing down a plant. The notice that is provided should be made known to the employees directly or through their union officials. The information given should be in writing and specific.
Disabilities Act: This act states that any person with disabilities of any kind should not be discriminated against during employment. The disabilities may be in form of mental or physical challenges.
Age Discrimination in Employment Act: An employee is not supposed to be discriminated against because of age. This is a law that protects those who are above the age of forty. As long as someone has the necessary skills, age is not a factor.
About the Author
Frank Griffin, the CEO and tribunal advocate advises people on employment laws and legislation. His website http://www.hrlaweasyanswers.com/ is very helpful, as his team ensures that clients are provided with federal Employment Law answers that are legally accurate and practical.
Labor law posters-why you should post?
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[mage lang="" source="flickr"]usa employment law minimum wage[/mage] Republicans take House, but Senate looks unlikely
The Republican Party has regained control of the House of Representatives in Tuesday's mid-term elections, but their ambitious goal to take control of the Senate appears to be unlikely. Marangi Doubts FCC to Act in News Corp.-Cablevision Spat
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California Labor Law Poster Related To Employment Law
California labor law poster gives a lot of information to the employees and it also makes sure that employers are paying necessary attention to the requirements given in the employment law. It is necessary that they follow the rules and regulations of the employment law or else they can be penalized for it. The employer should tell the employees about the employment law rights by pasting a law poster in a place where it is visible to the employees. Essentially, there are eight basic Federal employment laws that an employee should know about.
The first employment law is related to the Title VII of the Civil Rights Act of 1964 which prohibits all employers from discriminating on the basis of their, religion, national origin race etc which is a wrong practice and should not be encouraged at any workplace. The employment law also prohibits sex discrimination towards women and sexual harassment.
The second employment law is the Civil Rights Act of 1966 that discourages any kind of discrimination amongst employees on the basis of ethnic origin and race which every employer should follow in the organization as it will bring in a healthy working environment in the workplace. The California labor law poster combined with safety posters deals with this.
The third law is very interesting and is the Equal Pay Act of 1963 that directs employers to pay same wages to men and women who perform the same task under similar conditions and thus no discrimination is allowed.
The Californialabor law postersstates the Disabilities Act and prohibits employers from discriminating against persons with disabilities and is certainly a law that needs to be encouraged at all workplaces in America and around the world at large.
This particular employment law stops employers from discriminating against employees on the basis of national origin or citizenship who have the authority to work in the United States. Such employees feel safe to have a law like this.
Then there is an employment law called the Age Discrimination in Employment Act or the ADEA that discourages discrimination against persons who are 40 years of age or above in any organization.
Similarly, there are a few more basic employment laws that take care of the interests of an employee and prove beneficial to them.
About the Author
IDSTC provides MLM Software , Network marketing software for MLM, direct sales industry. Get business solutions with Multi Level Marketing Software, Direct Sales Software, party plan software .
[mage lang="" source="flickr"]california employment law violations[/mage] if someone has a probation violation in Alabama for marijuana possesion, but is now in california, will califo?
I would like to know more about the extradition laws. Alabama is abusing its legal system by holding people in the court appointed programs for extra money. This process denies the individual from regaining basic privileges like a drivers license. This also makes it impossible to gain employment. Yet people with multiple dui's lose their license for less than 90 days. Marijuana possession even at home revokes ones license for 6 months!!
It seems that you are asking if Alabama can extradite you from California for the probation violation, and the answer would be yes they can but they will not because extradition is very expensive and time consuming, however they will issue a warrant and if you ever return to Alabama and come into contact with a law enforcement officer the warrant will show on NCIC and you will be arrested, most warrants for minor infractions have a geographical limit on them and law enforcement will not arrest you if you are outside of those limits.~
It is ideal for every employer to issue employee handbooks to each of his employees especially if the company is relatively large. The purpose of providing employees of such handbooks is to inform them of their rights and duties as well as the standards of the company. Handbooks are useful especially if you are a contractor because it gives employees a convenient access to these rules in the duration of the term or until fulfillment of the project. Here are some ideas which a good handbook should contain:
1. Employee handbooks are books of instructions and information about the company and the respective tasks of each department and position of employees. By specifying each department tasks and position, confusion when it comes to the performance of a specific task will be avoided. It will also bolster accountability in the success or failure of a specific task.
2. It embodies the rules of conduct and regulation which every employee should follow so that order and efficiency in the workplace is maintained. Proper decorum, dress code, behavior inside the workplace should be observed in order that internal conflicts, miscommunication, or altercation among employees will be avoided.
3. The handbook should also provide the sanctions or penalties involve for the violation of the rules and regulation contained therein in the employee’s handbook and lawful orders of the superiors of the company.
4. It is also a reference of the employees of the needed qualifications like years of training, sales quota, among others, in order to entitle them to a promotion. Not only the old employees but also those individuals will have an idea what are the needed skills, experience, or educational attainment is needed by the company for a specific position. This will also provide the other companies who wish to employ the services of the company an idea of the competency of the people who work in the company they wish to hire.
5. The handbook is a written evidence of the employer exercising control of his company. Hence, it should contain the standard concerning each and every employee’s output or contribution as well as guidelines on how their specific task should be accomplished. It should contain as much as possible, a detailed instruction on how a task is properly done according to the company’s standard.
6. For the protection of its employees, the handbook must also contain the proper safety measures in the performance of their task. It should inform the employees of the risks involve and the proper way to protect themselves from such danger.
7. The handbook should also contain as to how and where an employee can air his grievances, suggestions, claims, or comments concerning his work. It should be able to specify the proper procedures that each employee should follow.
8. The handbook should also contain the minimum benefits the employees are entitled to under the law. If the company is giving out additional incentives for good performance or quality or years of service, then, it is advisable that it be included therein so that employees will have something to aspire and look forward to.
[mage lang="" source="flickr"]labor and employment law employees[/mage] FEDERAL & STATE (PA) LABOUR LAWS regarding provision/distribution of benefits to F/T / P/T employees?
- WHAT DOES THE LAW DICTATE?
- Does Federal/State Law trump company policy?
-Whats the statute of limitations (time window) on a suit?
- Can the cost of future health expenses of the litigant (those directly related to the suit, and those directly resulting from denied heath benefits during the time of employment) be incorporated into the suit on the premise that those expenses would never have existed had those health benefits been provided?
You should probably contact an attorney about these questions, especially if you have a specific problem which needs to be resolved.
Eugene Volokh: Freedom of Speech vs. Workplace Harassment Law -- A Big Free Speech Win in the Ninth Circuit
I've long written about how workplace harassment law sometimes violates the First Amendment, so I was especially pleased to see today's Rodriguez v. Maricopa County... Law Videos - Employment Law - Chapter 2
Can a prosecutor call a defendant's job and threaten to do a press release if the defendant isn't fired?
I was arrested over the weekend. When I went into work the next week, I was told by my boss that she received a call from "someone" who stated that I was arrested and that they were going to do a press release about it and name my current employment if I wasn't fired. I just found out that it was the prosecutor on my case who did this. Not only that, he also faxed my boss a copy of my charges and disclosed that I had a prior conviction over a decade ago. Can a DA do that? My position isn't one in which I have financial control or work with seniors or children so there is no danger to the public. The only thing that would be accomplished is I would lose my job and be unable to pay for my attorney. Can they do that? Is there somewhere I can get a copy of the laws governing DA's and their actions? This occurred in California
I don't think so. That's awful.
Ernest Tintorer on the 2008 California Employment Law Update
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Corporate Social Responsibility
Meaning of CSR: - Social responsibility is fundamentally a philosophy or a vision about the relationship of business and society. It is treated as an investment and not a cost. It is a process of continuous improvement, not a fad, which begins small & grows and expands overtime. It is inextricably linked to profitability, as there can be no social responsibility without profits.
Importance of CSR: - This is a time of more Turbulence for a business & accelerating change. The challenges faced by today’s business include the following.
Globalization of markets, consumer preferences, financial flows. Globalization is having momentous effects on the economies of all countries and on corporation in most sectors.
Increasing intensity of competition: - The Global completion today has created more challenges and instability
Technology: - Rapid technological changes are transferring the markets, enabling greater customization of production, & contributing to high labor displacement.
Shift from Industrial Economy to a knowledge & information based economy. Human capital has become more important resource.
Environmental challenges caused by pollution & resources depletion, Business are called upon to play an important role in meeting these challenges.
Life style changes, expectation on the part of employees, customers and communication as a whole changing
Hence as the world business environment changes, so do the requirements for success & complititiveness. Because of the forces at work, building deeper and more strategic relationship with customers, supplies, employees, communities and other stakeholders can become central to competitiveness & survival. Building these relationships can form the foundation of new, progressive & people centered corporate strategy. This brings us to the increased importance of CSR.
Now having understood the meaning & importance of CSR let us understand the responsibility of corporations towards its stakeholders. Hence CSR is all about how to manage these responsibilities.
Stakeholders
Internal External
- Shareholders - Consumers
- Employees - Suppliers
- Management - Creditors
- Competitors
- Environment
INTERNAL STAKEHOLDERS:
(i) Shareholders: - Share holders are the members of the company who help to achieve the company’s goals by investing in the business. They are entitled to the share in the profits of the company. This share of the profits is given to the shareholders in return for their investments in the form of shares. Hence the organization must honor the trust of the shareholders, therefore the responsibilities of the organization towards shareholders are:-
Managing company effectively in order to secure fair & competitive return on the owners’ investment.
Disclosing relevant information to shareholders.
Conserving, Protecting & increasing the shareholders asset.
Respecting the shareholders requests, suggestion, complaints & formal resolution.
Also, shareholders, also have certain obligation towards the organization which include.
Maintaining good relationship with management.
Exercising their voting rights.
(ii) Employees: - The relationship between employee and organization is considered to be important by society, because employees contribute their efforts and time towards the development of organization, which in turn improver society. In return of their work employees’ not only expect wages, but also security. Most Japanese firms provide security to their employees by offering lifetime employment.
Both business & employees have certain responsibilities towards each other. To foster a sense of belonging among all employees, organization should maintain a healthy work environment, where the employees & employee fulfill their responsibilities.
Some specific responsibilities of organization toward their employees are
To provide adequate compensation
To provide working conditions, that respect each employee’s health & dignity.
Encourage & assist employees in developing skills & knowledge that are required for accomplishing the task.
(ii) Management: - Any decision taken by the managementhas an impact on the stakeholders. On the one hand, management’s stakes are like that of employees, with some explicit & implicit employment contract. But, on the other hand, management are entrusted with the duty of safeguarding the welfare of the corporation. In short, the role of the management involves in balancing the multiple claims of different stakeholders.
EXTERNAL STAKEHOLDERS:
(i) Consumers: - Consumers / customers exchange resources for the products of the firm and in return receive the benefits of the products. Customers help in survival of the company. By paying attention to the customers needs, management automatically addresses the needs of suppliers & owners.
The responsibilities of corporations towards their consumers are supplying right quality, right quantity product / service at right time, at right place and at right price.
Few responsibilities of organizations towards the consumers are
Producing goods / service according the needs.
Improving standard of living by producing goods & services of high quality.
Treating customers fairly in all aspect of business transactions.
Customers’ satisfaction in essential for the success of a corporation. Customers increase sales of a product by spreading positive “word of mouth” about the company product or brand.
(ii) Suppliers: - Often, suppliers are not included in the list of a firm’s stakeholders. But suppliers play a pivotal role in the success of any business since raw material they supply will determine the final products quality & price.
In this era of global competition, ability to control costs rather than the ability to increase sales in the key to profitability. Good relationship with suppliers can reduce costs.
In many instances, major companies have refused to use certain suppliers because of unethical act. Levi Strauss, the famous clothing firm refused to use suppliers from china because of allegations covering the use of forced child labor by Chinese suppliers.
A company’s relationship with suppliers and subcontractors must be based on mutual respect. When dealing with suppliers, organization must.
Seek fairness & truthfulness in all activities, including pricing & licensing.
Ensure that business & activities are free from coercion & unnecessary litigation.
Foster long-term stability in the suppliers’ relationship in return for value, quality, competition & reliability.
Share information with suppliers & integrate them in the planning processes.
Pay suppliers on time & in accordance with agreed terms & trade.
(iii) Creditors: - Creditors play an important role in organization. Usually organization buy goods on credit from suppliers, organization often delay in repaying credit to the creditors. The late payment of creditors has become a common problem all over the world. In Aug 1992, trade indemnity conducted a quarterly survey of 700 UK firms. The survey revealed that large firms with a turnover of 50 million pounds were paid on an average, 15 days late, while small business firms with a turnover under 25 million pounds were paid, on an average, 29 days late. It is the responsibility of the organization to make timely payment for goods that have already been delivered.
(iv) Competitors: - Business Corporations are equally obliged to other business firms as they are towards stakeholders. In this era of competition the firms compete with each other to grab a major share on all possible fronts. In this connection, the competitive practices adopted by firms can sometimes be questionable.
Therefore the responsibilities of the organization towards the competition are
Refrain from either seeking or participating in questionable payments or favors to secure competitive advantage.
Respect both tangible & intellectual property right.
Refuse to acquire commercial information by dishonest & unethical means.
(iv) Community: - The community gives the business the right to build or rent facilities, benefit from the tax revenues raised in the form of local services; infrastructure etc. In return for these services, the firm should act in a responsible way. The firm can’t expose the community to unreasonable hazards in the form of pollution and toxic waste. A firm’s responsibility towards the society includes.
Respecting human rights.
Supporting public policies and practices that promote human development through harmonious relation between businesses.
Collaborating with such activities that aim at improving the standard of health, education, workplace safety and economic well being.
Promoting and stimulating sustainable development and playing a leading role in preserving and enhancing the physical environment and conserving the earth’s resources.
Encouraging charitable donations, educational and cultural contribution and employee participation in community & civic affairs.
Role of Business in society:
Critics of the role of business in society argue that,
Corporation care little for the welfare of the workers, and given the opportunity will move production to sweatshops in less regulated countries.
Unchecked, companies will squander scarce resources.
Companies don’t pay the full cost of their impact. For example, cost of cleaning pollution often fall on society in general. As a result profits of the corporations are enhanced at the expense of social or ecological welfare.
Regulations in the best way to ensure that companies remain socially responsible.
Present day businesses are expected to shoulder much more social responsibility. The effectiveness of the organization now a day depends on its ability to develop itself into a social organization. Corporate responsibility is considered the building block for any organization. As a result, organizations are evolved overtime to perform no of tasks in society. These are
(i) Financial tasks: - Corporationsare required to assure shareholders thatthey are acting in their interest. Thus the organizations need to be transparent in their financial matters, so that investors can invest with confidence.
(ii) Economic & Production tasks: - The tasks related to the creation & maintenance of wealth are referred to as economic & production tasks. All businesses that make up commercial world are associated with economic & production tasks. Companies in trying to maximize returns for shareholders may monopolize markets by buyouts, mergers, & unfair practices like market manipulations. Economically responsible corporations will always refrain from monopolizing the market.
(iii) Maintenance tasks: - The examples of such activities areeducational, religious & health welfare services. These are helpful in transmitting information to society, communicating knowledge & shaping the culture of the society. For example Microsoft Corporation announces donation of more than $1.7 million to software to ten national non profit organizations.
(iv) Adaptive tasks: - It means how organization adopts to the changes in the society. Organizations create products that are useful for society and these products are designed in accordance with changes in consumer preferences.
(v) Management tasks: - Corporations are expected to support and promote human rights, not to suppress basic freedom of speech, association etc. In some countries, businesses encounter problems because of the violation of human right. Since the primary responsibility of any organization is to operate efficiently, respecting the interest of the stakeholders. Companies can achieve this by upholding local laws in which they operate & must frame policies that are towards corporate social responsibility and should be available to all the stakeholders.
(vi) Environmental tasks: - Environmental tasks are necessary to curb certain unethical practices. Most companies have none established regulations to limit pollution by their factories. These all essential to prove a company’s commitment to CSR. Most of the industry associations have also established environmental codes of conduct. Companies have to develop detailed guidelines, policies to govern their activities and behaviors. These standards have to become part of the company’s everyday practice.
The Social Challenge:
A business is viewed as a profitable process of production, distribution & sale of goods & services. The idea of business having certain responsibilities beyond profit making gained importance in 19th century.
Private sector organizations can’t perform effectively in all the corporate responsibility activities like social tasks, economic tasks that include creation of job etc. Not all the organizations can perform effectively in fulfilling their tasks to the community. There are shortages in certain areas & limitations on application elsewhere, but their scope can be expanded by mutually beneficial partnership between companies & non profit organization for improving the community. In fulfilling these social responsibilities companies must select projects carefully & then ensure that sustained involvement & quality management backs them.
Clutterbuck has proposed a systematic approach for managing such activities as follows.
A company should first audit its resources and capacity so that it can add real value to its activities. It means,
Set practical, clear & achievable goals.
Identify primary aim of the program
Clearly identify what not to support.
Have fixed budget for specific program.
Appoint specialist and other staff for organizing and delivering the support.
Install system for report evaluation, feedback & change.
Processed information obtained from these activities have to be updated on a regular basis.
Besides taking up specific projects for fulfilling their social responsibilities, the corporate sector is also expected to create wealth & jobs. Different stakeholders of the company have different expectations of the company.
Table shows the expectation of the major stakeholders of a company.
Stake holders
Expectations
Primary
Secondary
Owners
Financial returns
Added value
Employees
Pay
Work satisfaction
Customers
Supply of goods & services
Quality
Creditors
Credit worthiness
Security
Suppliers
Payment
Long-term relationship
Community
Safety & Security
Contribution to community
Government
Compliance
Improved competitiveness
Fulfilling these expectations is a challenge for the organization. In Britain the success of the organization is based on how well it is accepted by the local community. Sometimes aim of the industry and community doesn’t match. This can result in hostility from the local community. To avoid hostility and to gain the support of the local groups companies can undertake activities that promote the welfare of the local community. The body shop owned by Anita Roddick won the goodwill of customers around the world by convincing them that the products were natural & that no animals have been used for testing their products.
Enterprises also have to face political pressure. Today there are many consumers groups that all building awareness among the general public about the responsibilities of corporation.
Standards & Values:
Business operating with social responsibility should have standard rules & regulations for efficient functioning. There are various examples where organization have undergone ethical dilemmas for e.g. When CFC was introduced for the usage in refrigeration, it had no knowledge of the long-term environmental impact.
Another example is in recent days the coca-cola has been criticised for having pesticides in the bottles, & also it was criticized for on other two major courts, the use of environmentally harmful hydroflurocarbons (HFCS) in Coca-Cola refrigerator & the one of environmentally harm caused by discarded coke bottles. In response to these, Coca-Cola announced it was committed to phasing out HFC refrigerators by 2004. These examples illustrator that, organization may not always be aware of the consequences of using a particular component in manufacturing a product. As implications and consequences of this decision become more evident manager are faced with challenge of ethical dilemmas. By establishing clear value systems organization can internalize responsibility.
To avoid ethical dilemmas manager can follow the approaches and mentioned:
Set a clear example
Publish code of ethics
Use reward and punishment mechanism
Include thick in all activities.
Reinforce policies through training & development
Establish openness & transparency into decision making process
To become a sum full with this, organizations have to liberalize behavior and at the same time ensure that employees behave responsibility
Through leadership at all levels, sustain a culture where ethical conduct is recognized valued and exemplified by all employees.
Example:
GE code of conduct
Obey the applicable law and regulations governing our business conduct worldwide.
Be honest, fair and trustworthy in all yours GE activities and relationships.
Avoid all conflicts of interest between work and personal affairs.
Foster an atmosphere in which fair employment practices extend to every member of the diverse GE community
Strive to create a safe work place and to protect the environment.
The Accountable business: The later 1990s have seen a massive growth of interest in corporate responsibility both among major corporations and across society. Concern about the social and ethical implications of organizations perceived as performing unusually well or badly.
Corporate performance on social and ethical, as well as financial, accounts can’t be hidden at least the large corporations. Demands for transparency, accountability & public reporting are steady increasing. As royal Dutch/ Shell have recognized, business has moved from a “trust me” world to “tell me” and increasingly “show me” world.
For the poor performers, especially the big ones, there is no place to hide, hence accountability looks at how business develop a corporate strategy that responds to stakeholders expectation, while ensuring long term profitability.
A process model for managing corporate responsibility and accountability
Identity company values & aspirations : This involves understanding what the company’s foundation values and missions are, understanding how the vision differs from the current reality, and making top level commitment and leadership visible throughout the organizations
Identifying shareholders & issues on which to focus : There are clearly far too many stakeholders and far too many issues to handle in detail. Hence it is necessary to identify the key stakeholders & the most important issues so that attention can be focused on these. This selection process be clearly identified & it should be documented for selecting a particular issue.
Select indicator & targets: This means select what to measure. Clearly it is also important to select targets so that performance can be measured & improved with time.
Data collections & analysis: For the purpose of an external report, it is helpful to balance quantitative data and stakeholder’s testimony. Existing information can be combined into a suitable audit framework & methods from other fields, such as environmental assessment, can be used to gather information on social issues.
Disclosure, performance appraisal & reporting: If a report is to make impact, it is important to be prepared to address controversial topics and to discuss the “undiscussable” – It is possible to take outside stakeholder by surprise by the honesty & openness of the published report.
Verification & review : External verification adds considerable value to a request & ultimately might be combined with a verification of financial environmental report. It provides and opportunity for comparison with external good practice and helps to give assurance to stakeholders that consultation procedures & other process are reliable. In addition to enhancing external credibility it allows recommendation on strength and weakness and areas for management action to be identified and appropriate changes put in place so that performance can be improved next time around.
Examples:
CSR initiative at INTEL
Overview: - Intel, challenge the status quo in everything they do. Over the past years Intel has worked to be more clear about what corporate responsibility means to them, By being clear about their priorities and the way they communicate them.
2005 highlights
Towards Education
Trained more than 800,000 teachers as part of INTEL teach to the future development program - for a total of more than 3 million trained worldwide since 2000.
Strengthened professional developments with several new Intel teach to the future program offerings.
Reached 1, 35,000 learners through Intel learn program. Intel’s after school program in government funded community technology centers.
Opened the 100th Intel computer clubhouse in Washington DC
Celebrated achievement of more than 1,400 young scientists from record 45 countries the ninth annual Intel International Science engineering fair.
Towards Environment:
Began to publish quarterly environmental health & safety (EHS) performance indicator
Announced that, energy efficiency will be key focus in product development. For Ex. The INTEL core Due processor is 35% more energy efficient that Pentium M Processor
Worked with industry peers to reduce energy consumption of note book LCD screens by approx 40%.
Reduced energy consumptions by 15% per production unit from 2004.
Further reduced hazardous materials such as lead in products, and recycled 57% of chemical waste & 75% of solid waste.
Towards Community:
Set new records for employee volunteerism and coordinated more than 35 projects involving thousands of Intel employees to support global earth day at INTEL sites around the world.
Launched the Digital transformation initiative for the Middle East. A comprehensive multi years program expanding economic education & technology related support throughout the region
Piloted the community PC & farmer PC, which are designed to meet the specific needs of rural remote & agrarian based communities in developing geographies.
Provides digital health care technology to village resource centers and mobile clinics in India & china
Provided substantial financial, employee & technology support for disaster relief
Intel comments:
As a part of our effort to be leader in corporate responsibilities, we believe in providing our stakeholders with accurate and thorough information regarding our performance on key social & environment issues. We are proud of the work we do in support of the environment, education & our communities. Our goal is to be an open & transparent company.
ITC’s E-Choupal Initiative:
ITC has come-up with a path breaking e-choupal intervention to provide information power to millions of farmer & rural folks in their vernacular languages. Information on weather forecasts, expert knowledge on best farming practices, agricultural input etc, are provided to the farmers. ITC’s e-choupal initiative has recently won the first world business award instituted by the international chamber of commerce at UNDP & HRH prince of Wales international business leaders forum.
ITC has also invested in rain water harvesting to bring the much required irrigation to the parched dry lands.
ITC has been empowering rural women & helping them to evolve as entrepreneurs.
ITC has also invested money for improving condition of village schools & make them more interesting for rural kids.
Hence, ITC has been able to create a major impact in terms of its image among rural folks, which is slowly building the faith of rural consumers in its products & services.
Conclusion:
As the world business environment is changing, the requirement for staying & succeeding in business is also changing. As a result large corporations are emphasizing the maintenance of strategic relationship with different section of the society. Hence the corporate social responsibility embraces multiple stakeholders. In today’s world corporations can’t isolate themselves from society in which they are operating, rather they are linked to the social, ecological & human fabric & therefore they are responsible in varying degree to all stakeholders. Companies with good social & environmental records perform better in the long run than those that don’t behave responsibility.
The article discussed about the various tasks of the organization. The social challenges of the organization have been discussed also the stanadard & values that an organization have to follow have been discussed.
Finally it is discussed about how to measure the social responsibility. What are the different steps which can be used to measure performance.Lastly the paper discussed the 2 success stories.
[mage lang="" source="flickr"]employment law california employees[/mage] Employment: Forum directed at small farms; poll: hiring up for restaurants
The Sonoma County Farm Bureau will be hosting a free labor and legal requirements seminar for small farms in late May. Sacramento Employment Contractors California Staff Link
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[affmage source="cj" results="5"]employment law california employees[/affmage]
what protection in employment law do volunteers in charities have regarding bullying and unfair treatment?
I am a volunteer working for the Royal British Legion in Spain and am having problems with bullying harrassment and abuse of the complaints procedures. What rights do Ihave under EU, UK or Spanish law.
Phone ACAS on 08457 47 47 47
There are several 'affecting' issues. One is that this a British based organisation and on several levels are bound by different countries laws. Also you do not say which country you are indigenous to...but no-one - volunteer or otherwise - should be subjected to bullying and harrassment.
Ironically, Charities have the worst reputation for abusing staff and the problem with most is that the people who hold the senior (and paid) positions are often unqualified to.
Don't put up with it. Keep going until you get the response that you need. Blow the whistle if you have to.
The plaintiff and the defendant entered into a two-year oral contract concerning a management employment position in an automobile dealership in Hawaii. The plaintiff, relying on the oral promises of the defendant, moved to Hawaii from California. After being employed for 2 months, the plaintiff was released from employment. He sued the defendant, who raised the defense of the statute of frauds.
Outcome ? Discuss what is the statute of frauds and if it applies. Even if we can’t sue for breach of contract, is the employee out of options? Discuss both the Statute of Frauds and Equitable Remedies
statute of frauds, promissory estoppel, part performance.
[mage lang="" source="flickr"]federal employment law eeoc[/mage] Can a current federal employee ask for more money in a federal civil lawsuit once his case is out of the EEOC?
I won in the Equal Employment Opportunity Comission and had to file a fedral civil lawsuit against Social Security who I work for. My attorney says I can only get what I won in the EEOC, but I thought when you filed in federal court, even if you are a current federal employee, you can get more monetary compensation than what is allowed in the EEOC because it is a civil trail and longer under control of the EEOC, I am right and what is the law or statue? Help!
I think you are right on this but run into problems with it being a federal organizations.. sorry can't help more.
[mage lang="" source="flickr"]labor and employment law michigan[/mage]
Preemption of State Law Intentional Tort Actions Under the Airline Deregulation Act of 1978
After years of tight government control over the airline industry, Congress chose to pursue a policy of economic deregulation, enacting the Airline Deregulation Act of 1978 (ADA). Areas formerly controlled by the federal government, such as the awarding of routes, the entry of new air carriers, and the setting of fares, were left to the airlines and the free market to determine. Congress, concerned that States might attempt to circumvent federal airline deregulation through their own state enforcement actions, included an express preemption clause in the ADA, which bars States from enforcing laws “related to a price, route, or service of an air carrier.” This apparently innocuous provision continues to cause confusion and divide courts over exactly what causes of action are preempted by the ADA.
Top-ranked Chicago personal injury attorney, Matthew A. Passen, examines one class of state-law based actions, intentional tort claims, and considers whether such actions are sufficiently “related to” an airline “service” for preemption under the ADA. For example, can a passenger who was refused boarding on a commercial airline and strapped to an immobile chair in the waiting area sue the airline for false imprisonment? Can a passenger detained by airline employees upon landing of an aircraft, wrongfully accused of stealing another passenger’s ring, and arrested by police, seek recourse against the airline for false arrest, intentional infliction of emotional distress or slander? Can an airline racially discriminate against a passenger or airline employee with impunity?
As the following discussion reveals, the answer to these questions often depends entirely on how broad or narrow courts interpret the ADA’s statutory phrase, “related to a . . . service of an air carrier.” If a narrow reading is adopted, plaintiffs will have their day in court. If, on the other hand, a court interprets the preemption provision broadly, airlines will essentially receive immunity from state-law intentional tort actions.
Often, the best answer to such questions of statutory interpretation is found by reconsidering the purpose of the underlying statute containing the preemption provision. Here, the purpose of the ADA is straightforward: economic deregulation of the airline industry.
BRIEF HISTORY OF THE ADA’s PREEMPTION CLAUSE
Prior to 1978, the federal government heavily regulated the airline industry.1 Beginning with the Federal Aviation Act (FAA) of 1958,2 Congress created a regulatory organization, known as the Civil Aeronautics Board (CAB), to serve three main functions: award routes to airlines, control the entry of air carriers into new markets, and regulate fares for consumers.3 Still, Congress preserved state common law actions against airlines by including a “saving clause,” which provided: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”4
In 1978, however, Congress changed courses with respect to airline regulation, determining that “maximum reliance on competitive market forces would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . . of air transportation services.”5 Accordingly, Congress enacted the Airline Deregulation Act of 1978 (ADA),6 which gradually ended economic regulation of the airline industry in a series of steps over the years, including the elimination of the CAB.7
The ADA, unlike its predecessor, contained express federal preemption clause to ensure that “States would not undo federal deregulation with regulation of their own.”8 The ADA’s preemption clause states:
Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or serviceof any air carrier that may provide air transportation under this subpart.9
This preemption standard, while simply stated, has proven far more difficult to apply than Congress could have anticipated.
One source of confusion is Congress’ retention of the “saving clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 10 Some courts have found Congress preserved this clause in order to protect the states’ ability to control non-economic matters involving airlines within their respective borders.11 Still, the Supreme Court has referred to the saving clause as “a relic of the pre-ADA/no pre-emption regime,” without power to supersede the specific substantive preemption provision of the ADA. 12
The greatest source of confusion surrounding the ADA’s preemption clause concerns the ambiguous language of the statute itself. In particular, courts have struggled to advance a coherent framework for what types of causes of action are “related to a price, route, or service” for preemption under the ADA. Congress neither defined the terms nor specified what types of state action are preempted, and the Supreme Court has not drawn any distinct preemption lines.13 Consequently, lower courts have been left to apply their own, often conflicting, interpretations of the ADA’s preemption clause. Regardless of statutory interpretation, courts remain guided by fundamental principles of preemption doctrine.
BRIEF INTRODUCTION TO PREEMPTION DOCTRINE
The foundation for federal preemption of state law is based on the Supremacy Clause of Article VI of the Constitution, which provides: “This Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”14 As a general rule, federal law preempts state law in three situations:15 (1) Express preemption: where Congress has explicitly preempted state law;16 (2) Field preemption: where Congressional intent to preempt may be inferred generally from the pervasiveness of a federal regulatory scheme in a particular area;17 and (3) Conflict preemption: where state law conflicts with federal law or interferes with the achievement of congressional objectives.18
Where Congress has included an express preemption clause in a statute, courts “typically do not consider the issue of implied pre-emption,” and instead simply “determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress.”19 In other words, according to the Supreme Court:
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.20
Because Congress included an express preemption clause in the ADA, courts look to the specific statutory language in order to determine whether a particular state action is preempted. Unfortunately, the literal text of the ADA’s preemption clause is ambiguous; and the Supreme Court has not resolved the uncertainty.
SUPREME COURT INTERPRETATION OF
THE ADA’s PREEMPTION CLAUSE
The United States Supreme Court has interpreted the ADA’s preemption provision only twice since 1978. In Morales v. Trans World Airlines, Inc.,21 the Court decided whether the ADA preempts States from regulating deceptive airline fare advertisements through enforcement of state consumer protection statutes.22 The Court held such actions were indeed preempted by the ADA.23
In reaching its decision, the Court focused on the statutory phrase “related to” in the ADA’s preemption provision. First, the Court looked to Black’s Law Dictionary for guidance, concluding that “the words thus express a broad pre-emptive purpose.”24
Second, the Court examined the similarly worded preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA),25 which the Court had previously interpreted as having a “broad scope.”26 Therefore, the Court held: “Since the relevant language of the ADA is identical [to the ERISA preemption clause], we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted” by the ADA.27 Although the Court in Morales declined to define with particularity the circumstances under which a state law “relates to” airline services, it held the state consumer protection guidelines at issue were sufficiently “related to” airline “price[s]” because enforcement of such guidelines would compel or restrict airline price advertising.28
Notably, however, the Court recognized there are limits to the scope of the ADA’s preemption clause.29 Specifically, the Court explained that state action affecting the airlines in “too tenuous, remote, or peripheral a manner” will not be preempted by the ADA.30 The Court declined to expand on this notion, instead stating, “[t]he present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line.”31
In 1995, the Supreme Court revisited the ADA’s preemption clause in American Airlines, Inc. v. Wolens.32 Here, the plaintiffs brought claims against American Airlines for breach of contract and for violations of the Illinois Consumer Fraud Act following the airline’s unilateral devaluation of frequent flyer mileage credits earned by the plaintiffs.33 Rather than focusing on the “related to” language of the ADA’s preemption clause, the Court examined the phrase “enact or enforce any law” in the provision.34
First, in accord with Morales, the Court held that the plaintiffs’ claims based on the Illinois Consumer Fraud Act were preempted by the ADA.35 The purpose of the Illinois statute, according to the Court, was “to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers.”36 Therefore, because the plaintiffs sought to “enforce [a] law” regulating “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,” the plaintiffs’ claims under the Consumer Fraud Act were preempted.37
Second, the Court carved out an exception to ADA preemption for the plaintiffs’ breach of contract claim. The Court explained: “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.”38 Because the plaintiffs’ breach of contract claim (based on American’s modification of its frequent flyer program) sought to enforce the terms of a voluntary undertaking by the airlines, and did not seek to “enforce any law,” the claim was not preempted by the ADA.39
COURTS OF APPEALS’ CONFLICTING DEFINITION OF “SERVICE”
Although the Supreme Court interpreted the “related to” phrase in Morales, and the “enact or enforce any law” language in Wolens, the Court has not defined the term “service” of an airline, as it is used in the ADA’s preemption clause. Instead, the United States Courts of Appeals have been left to define the term, resulting in conflicting approaches.
In Charas v. Trans World Airlines, Inc., the Ninth Circuit adopted a relatively narrow definition of “service.”40 Because the term “service” is inherently ambiguous, the court looked to the purpose behind the ADA, which Congress enacted to protect “the economic deregulation of the airlines and the forces of competition within the airline industry.”41 As such, only state laws that interfere with economic deregulation and the forces of competition within the airline industry should be preempted.42 Conversely, ADA preemption should not “displace state tort law in actions that do not affect deregulation in more than a ‘peripheral manner.’”43
With these principles in mind, the Ninth Circuit defined “service,” as referring to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.”44 This definition includes “such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided.”45 This definition of “service” does not, however, encompass things such as “the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions,” which the court found only peripherally affect airline deregulation or competition.46 Any broader a definition, according to the court, “effectively would result in the pre-emption of virtually everything an airline does. It seems clear to us that that is not what Congress intended.”47 This approach to ADA preemption has been followed by the Third Circuit.48
In contrast, the Fifth Circuit adopted a much broader definition of “service.”49 In Hodges v. Delta Airlines, Inc., a female passenger was injured when another passenger opened an overhead compartment and dislodged a case of rum. She brought a state law personal injury claim against Delta Airlines based on alleged negligent operation of the aircraft.50 In order to determine whether the plaintiff’s claim was preempted by the ADA, the Fifth Circuit adopted the following definition of “service”:
“Services” generally represent a bargained-for or anticipated provision of labor from one party to another . . . Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provisions of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.51
This definition of “service” is clearly far broader than the Ninth Circuit’s definition in Charas.
Still, the Fifth Circuit held the plaintiff’s claims were not preempted by the ADA. The court distinguished between claims related to the “operation and maintenance of the aircraft,” and claims related to airline “services,” holding that claims falling in the former category are not preempted by the ADA.52 With respect to the plaintiff’s claims, the court explained: “One uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation.”53 The court rejected Delta’s arguments that the plaintiff’s injuries arose out of the “service” of baggage handling and boarding.54 Instead, the court found: “Whether certain luggage may be placed in overhead bins and whether the flight attendants properly monitor compliance with overhead rack regulations are matters that pertain to the safe operation of a flight.”55
Thus, while the Fifth Circuit adopted a broad definition of “service,” it added another layer of confusion with an almost untenable distinction between “service” and “operation and maintenance.” 56 Nevertheless, at least three other Circuit Courts of Appeals have adopted the Hodges court’s definition of “service.”57
SUPREME COURT DECLINES TO DEFINE “SERVICE”
In late 2000, the Supreme Court declined the opportunity to resolve the conflict concerning the appropriate definition of “service” within the meaning of the ADA’s preemption clause.58 Earlier that year, in Duncan v. Northwest Airlines, Inc., the Ninth Circuit held that a class-action lawsuit challenging Northwest’s smoking policy was not preempted by the ADA.59 Relying on its earlier narrow definition of “service” in Charas, the Ninth Circuit held that allowing smoking on Northwest flights does not constitute a “service” because such decision does not deal with “the frequency and scheduling of transportation, [or] the selection of markets to or from which transportation is provided.”60 Northwest appealed the Ninth Circuit’s decision, and the Supreme Court denied the petition for a writ of certiorari.61
Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented to the Court’s denial of certiorari. In her dissent, she notes how the Courts of Appeals have “taken directly conflicting positions on this question of statutory interpretation.”62 Given these contradictory interpretations, the dissenting Justices would have granted certiorari in order to “provide needed certainty to airline companies.”63
APPLICATION OF THE ADA PREEMPTION CLAUSE
TO STATE-LAW INTENTIONAL TORT CLAIMS
Also in her dissent to the Court’s denial of certiorari in Duncan, Justice O’Connor suggests that while the underlying case involved a state law personal injury claim based on an airline’s smoking policy, “the legal principle at stake,” namely, the correct definition of “service” within the meaning of the ADA’s preemption clause, “has ramifications for a host of other tort actions against airline,” including “false imprisonment,” “intentional infliction of emotional distress,” and “defamation.”64 This section examines how courts have analyzed and should analyze these types of actions. Such cases often include state law discrimination claims.
DISCRIMINATION CLAIMS
The United States Supreme Court has not decided whether actions against airlines alleging state discrimination violations are preempted by the ADA.65 For lower courts examining this issue, the preemption outcome largely depends on the court’s definition of “service.”
A. Employment Discrimination Actions
Generally, discrimination suits brought by former airline employees bear “too tenuous, remote or peripheral” a relation to airline rates or services for preemption under the ADA, regardless of the court’s definition of “service.”66 Courts refusing to preempt such actions stress the purpose of the ADA, which “was concerned with the states’ attempt to regulate airline fares, routes and services, not employment practices.” 67
For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.68 As the Second Circuit explained in Abdu-Brisson: “Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [Wolens], whether an airline discriminates on the bases of age (or race or sex) has little or nothing to do with competition or efficiency.”69
In other contexts, however, enforcement of state discrimination laws may appreciably “relate to” airline “services,” warranting preemption by the ADA. For instance, in 1996, the Michigan Court of Appeals held that state law weight discrimination claims brought by a baggage handler who was terminated for failure to comply with the airline’s height and weight standards were preempted by the ADA.70 Applying the Supreme Court’s broad interpretation of the phrase “related to” in Morales, the Michigan Court of Appeals held the plaintiff’s discrimination claims "related to" the “services of an air carrier,” and were preempted accordingly.71 In this case, as well as in other disability discrimination actions where the state law arguably “relates to” airline “service,” the scope attached to these statutory terms ultimately determines the preemption outcome.
B. Passenger Discrimination Actions
Cases addressing the scope of ADA preemption in discrimination actions brought by airline passengers provide a less coherent body of case law.72 Ultimately, whether or not a discrimination claim is preempted depends on the court’s definition of “service.”
Generally, courts have found such claims entirely unrelated to the performance of airline services, and therefore outside the scope of ADA preemption.73 For example, in Doricent v. American Airlines, Inc., a male passenger alleged that prior to his flight’s departure from Haiti, American Airlines employees referred to him using racial epithets, threatened to remove him from the plane, and physically assaulted him.74 The court held the plaintiff’s state law race discrimination claims did not “relate to” airline “services” under the Supreme Court’s precedent in Morales.75 While the airline employees’ behavior might “arguably constitute ‘services’—poor services, to be sure,” the court found this behavior had “nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service.”76
Still, in other contexts, discrimination claims may have some legitimate bearing on an airline’s ability to render safe and efficient “service.”77 In such cases, even those involving alleged race discrimination, the plaintiff’s discrimination claims might be preempted by the ADA.
For instance, in Huggar v. Northwest Airlines, Inc., the United States District Court for the Northern District of Illinois held that an airline passenger’s race discrimination claims against Northwest were preempted by the ADA.78 The plaintiff, a 21-year-old black male was removed from a Northwest flight after removing another passenger’s luggage from an overhead bin and throwing it on the floor, threatening to physically assault the passenger, and claiming he could “buy” the passenger.79 The plaintiff’s ten-count claim against Northwest alleged that his ejection from the flight was racially motivated, and included a claim for a violation of the Illinois Human Rights Act.80
In determining whether the plaintiff’s state law race discrimination claims related to Northwest’s “service” of providing airline transportation, the court employed the following analysis: “the critical inquiry is [sic] the underlying nature of the actions taken, not the manner in which they were accomplished. Therefore, a court should not look to the subjective motivations of the employees because they are irrelevant to determining what constitutes ‘services’ within the meaning of the [ADA].”81 According to the majority, because the plaintiff’s actions clearly posed a safety threat to the other passengers, the airline’s decision to eject him from the flight “related to” the “service” of boarding and seating passengers, notwithstanding the airline employee’s subjective, allegedly discriminatory motivations.
As the above case highlights, the preemption outcome in passenger discrimination cases often depends entirely on whether a particular jurisdiction employs a broad or narrow definition of “service.” In order to find the plaintiff’s claims preempted by the ADA, the Huggar court first had to include “boarding and seating decisions” as cognizable “services” under the ADA’s preemption clause. In a similar case, the U.S. District Court for the District of Massachusetts held that a passenger’s lawsuit alleging he was discriminated against on account of his handicap in connection with boarding on a particular flight was preempted by the ADA.82 Necessary to the court’s decision was its reliance on the Fifth Circuit’s broad definition of “service,” which explicitly refers to “boarding.”
Conversely, jurisdictions employing the Ninth Circuit’s narrow definition of “service” will reach the opposite result under identical scenarios. For instance, the Ninth Circuit held a plaintiff’s disability discrimination claim against American Airlines based on the airline’s refusal to allow the plaintiff to board without a doctor’s certificate (she was in a wheelchair and had a heart problem) was not preempted by the ADA.83 The court’s analysis was probably over-simplistic; it simply held, “the term ‘service’ does not refer to alleged discrimination to passengers due to their disabilities.”84 Consequently, whether a passenger discrimination lawsuit is preempted by the ADA may ultimately depend on the court’s definition of “service.”
FALSE ARREST/ IMPRISONMENT
Several courts have addressed the issue of whether the ADA preempts false imprisonment and false arrest claims, reaching divergent conclusions.85 These cases can, however, be reconciled.
Where the courts have held a plaintiff’s claim for false arrest or false imprisonment is preempted by the ADA, such cases involve incidents where the airline refused or failed to provide a service relating to the transportation of a passenger.86 In these cases, “where the crux of the claim was the airline’s refusal to transport the passenger,” the courts have concluded that the claims related to the services of the airlines, and were therefore preempted by the ADA.87 This makes sense because all Circuit Courts of Appeals agree that “transportation” of passengers is a cognizable “service” under the ADA.
Conversely, where the basis of a false arrest or false imprisonment claim “is that the airline caused the passenger to be arrested by authorities without a proper factual basis,” courts have held that such claims are not “related to” an airline “service.”88 For example, if “an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted.”89
OTHER INTENTIONAL TORT CLAIMS
The Circuit Court of Appeals for the Seventh Circuit, in Travel All Over The World, Inc., examined whether a travel agency’s intentional tort claims against Saudi Arabian Airlines, arising out of the travel agency’s unsuccessful attempts to arrange flights to Saudi Arabia for its clients, were preempted by the ADA’s express provision.90 The court organized the plaintiff’s claims into two categories: (1) defamation and slander; and (2) “other” intentional tort claims.91
With respect to the first category, the Seventh Circuit acknowledged that courts have reached “divergent results” concerning whether claims for slander and defamation are preempted by the ADA.92 Here, the plaintiff based its defamation and slander claims on the airline employees’ making knowingly false verbal and written statements about the travel agency to the agency’s clients; specifically, that the agency “was not a reputable company, that [the agency] had not booked seats on Saudi for many of them, that [the agency] often lied to its clients about reserving seats for them, and that” the agency’s president would not be there to help them.93
Even after adopting the Fifth Circuit’s broad definition of “service,” the Seventh Circuit held the statements themselves were not airline “services” within the meaning of the ADA.94 Citing the Supreme Court’s opinion in Morales, the court explained: “It is difficult for us to envision how tort claims based on an airline’s knowingly false statements about a travel agency would have even a ‘tenuous, remote or peripheral’ economic effect on the rates, routes, or services that the airline offers.”95 Furthermore, although the statements refer to the travel agency’s services, the court held they certainly do not refer to the airline’s rates, routes, or services.96 Therefore, the plaintiff’s defamation and libel claims were not preempted by the ADA.
With respect to the second category of “other” intentional tort claims, including intentional infliction of emotional distress, tortious interference and fraud, the Seventh Circuit reached a different opinion. Only where these claims are based upon the same slanderous and defamatory comments that the court already found not preempted, could such claims withstand preemption scrutiny.97
Yet, the Seventh Circuit doubted this would hold true for the plaintiff in Travel All, as with most plaintiffs. Instead, the “other” intentional tort claims were most likely “based, at least in part, on [the airline’s] canceling the confirmed tickets of [the agency’s] clients and requiring these clients to purchase their tickets directly through [the airline].”98 To the extent that the plaintiff’s intentional tort claims rely on this “conduct” of the airline, rather than the airline employee’s allegedly slanderous and defamatory “comments,” the court held such claims “expressly refer to airline ‘services,’ which include ticketing as well as the transportation itself,” and are therefore preempted by the ADA.99 Again, this holding depends entirely on the court’s adoption of the Fifth Circuit’s broad “service” definition in Hodges, as opposed to the Ninth Circuit’s narrow definition of “service” in Charas.
CONCLUSION
The ADA’s preemption clause continues to cause confusion and divergent opinions throughout our nation’s courtrooms. The fundamental problem concerns the seemingly benign phrase “related to a price, route, or service” of an air carrier. The Supreme Court has done little to clear the fog surrounding this issue. Aside from expressly declining the opportunity to define “service,” the Court’s interpretation of the phrase “related to” has recently come into question.
In Morales, the Supreme Court interpreted the “related to” language of the ADA broadly, based largely on the “broad scope” previously applied to the similarly worded ERISA preemption clause.100 Yet, in recent years the Supreme Court has been narrowing the reach of ERISA’s preemption provisions.101 Indeed, the phrase “related to” in ERISA’s preemption clause “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the ERISA legislation.”102 Although the literal text of ERISA’s preemption clause is “clearly expansive,” like the ADA, the Supreme Court has held that for practical purposes the statute must be interpreted more narrowly, “lest its reach stop nowhere.”103 Analogously, it is unclear whether the ADA’s “related to” phrase should likewise receive a narrower interpretation to mean: whether state law actually interferes with the purpose of the ADA.
The larger question involving the ADA preemption clause concerns the proper definition of “service.” The Supreme Court has expressly declined to answer the question, despite the objections of three Justices.104 If the Court is not going to answer this question, Congress should. A clear definition of “service,” from either the Supreme Court or the Legislature, “would provide needed certainty to airline companies.”105
The question becomes: What definition of “service” should the Supreme Court or Congress adopt for the ADA’s preemption clause? This question must be answered in light of the fundamental purpose behind the underlying statute—courts should look to the objectives of the ADA as a guide to the scope of state law that should survive. The ADA is an economic deregulation statute designed to promote competitive rates, routes and services among the nation’s airlines.106 As such, only those actions directly impacting the airlines’ ability to provide competitive rates, enter new markets, and provide effective transportation to consumers should be preempted by the ADA.
The Ninth Circuit’s narrow definition of “service,” which encompasses the “prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” best aligns with the purpose of the underlying ADA statute. Furthermore, this definition comports with the Supreme Court’s approach to express preemption clause analysis: “the familiar principle of expression unius est exclusio alterius.”107
Neither the language nor the history of the ADA suggests that Congress was attempting to displace all state law tort causes of action against the airlines; nor should the preemption clause act as a safe harbor against claims having only a tenuous impact on airline services.108 The vast majority of state law intentional tort claims cannot be said to frustrate the goal of economic deregulation in the airline industry. Furthermore, such claims do not affect a particular airline’s competitive posture any more so than a lawsuit affects any corporation in America. Accordingly, such actions should fall outside the scope of federal preemption under the ADA.
1 For a good discussion of the ADA’s legislative history, see Daniel H. Rosenthal, Legal Turbulence: The Court’s Misconstrual of the Airline Deregulation Act’s Preemption Clause and the Effect on Passengers’ Rights, 51 Duke L.J. 1857, 1869-1872 (2002).
2 Pub. L. No. 85-726, 72 Stat. 731 (later codified as amended at 49 U.S.C. §§ 40010-44310 (1994)).
3 Matt Andersson, The New Airline Code 62-64 (iUniverse, Inc. 2005).
4 49 U.S.C. § 1506 (current version at 49 U.S.C. § 40120 (c)).
5 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (citing 49 U.S.C.App. §§ 1302 (a)(4), 1302 (a)(9)).
6 49 U.S.C. app. §§ 1301-1557 (1988).
7 Matt Andersson, The New Airline Code 67 (iUniverse, Inc. 2005).
8 Morales, 504U.S. at 378; See also Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996) (stating that the purpose of ADA’s preemption clause was to prevent states from interfering with the development of an air transportation system driven to higher levels of innovation and efficiency by economic competition).
9 49 U.S.C. § 41713 (1997) (emphasis added).
10 49 U.S.C. § 40120 (c); Chrissafis, 940 F. Supp at 1296.
11 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995); Morales, 504 U.S. at 425 (Stevens J., dissenting).
12 Morales, 504 U.S at 385.
13 See Matthew J. Jelly, Federal Preemption by the Airline Deregulation Act of 1978: How do State Tort Claims Fare?, 49 Cath. U. L. Rev. 873 (2000).
14 U.S. const. art. VI § 1, cl. 2.
15 See Susan D. Hall, Preemption Analysis After Geier v. American Honda Motor Co., 90 Ky. L.J. 251 (2002).
16 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983).
17 Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947).
18 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).
20 Id.; Cipollone v. Liggert Group, Inc. 505 U.S. 504, 517 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)); compare Grier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (existence of express preemption provision does not mean that implied preemption cannot exist where the express preemption does not apply).
21 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).
22 Id. at 378.
23 Id. at 391.
24 Id. at 383.
25 29 U.S.C. § 1144 (a).
26 Morales, 504 U.S. at 384 (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).
27 Id. (emphasis added).
28 Id. at 390.
29 See John T. Houchin, Harris v. American Airlines: Flying Through the Turbulence of Federal Preemption and the Airline Deregulation Act, 51 U. Miami L. Rev. 955, 966 (1997).
30 504 U.S. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 (1983) (emphasis added)).
31 Id.
32 American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).
33 Id. at 224.
34 Id. at 226.
35 Id at 228.
36 Id.
37 Id. (emphasis added).
38 Id. at 228 (emphasis added); see alsoWilliams v. Midwest Airlines, Inc., 321 F. Supp. 2d 993, 996 (E.D.Wisc. 2004) (holding the plaintiffs’ breach of contract claim was not preempted because the airline’s agreement to transport plaintiffs to New York City “was a self-imposed undertaking, and plaintiffs’ attempt to enforce it does not involve the enforcement of any state law”).
39 Wolens, 513 U.S. at 232-33. The Court stated that this distinction makes sense in light of the ADA’s saving clause, which does not prevent states from “affording relief to a party who claims and proves that an airline dishonored a term that the airline itself stipulated.” Id.
40 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).
41 Id. at 1261.
42 Id. at 1263 (citing Gee v. Southwest Airlines, Inc., 110 F.3d 1400, 1410 (9th Cir. 1997) (O’Scannlain, J., concurring).
43 Id. at 1265.
44 Id. at 1261.
45 Id. at 1265-66.
46 Charas, 160 F.3d at 1266.
47 Id.
48 See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998); Duncan, 531 U.S. 1058; compare Abdulla v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that the entire aviation industry is field preempted).
49 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc).
50 Id. at 335.
51 Id. at 336 (citations omitted) (emphasis added).
52 Hodges, 44 F.3d at 336-37. The court found that claims relating to the “operation and maintenance of the aircraft” concern matters of “air navigation.” Id. at 338 (citing 49 U.S.C.App. § 1301(31) (1998)).
53 Id. (emphasis added)
54 Id. at 338-39.
55 Id. at 339.
56 The Firth Circuit admits that “the provinces of ‘services’ and ‘operation and maintenance of aircraft’ overlap somewhat conceptually; no strict dichotomy exists.” Id. at 339.
57 SeeDuncan, 531 U.S. 1058; Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).
58 Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (cert denied)
60 Id. at 1115 (quoting Charas, 160 f.3d at 1265-66).
61 Duncan, 531 U.S. 1058 (2000) (cert denied).
62 Id.
63 Id.
64 Id.
65 Lynette M. Bledsaw, The Express Preemption Provision of the Federal Aviation Administration Authorization Act Does Not Reach State Civil Rights Claims of Race Discrimination, American Bar Association (2000).
66 SeeBranche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (former airline employee’s state court claim for retaliatory discharge was not preempted by the ADA); Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (former airline employee’s race discrimination claim was not preempted); Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1467-68 (11th Cir. 1998) (plaintiff’s age discrimination claim was not preempted by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997) (holding Hawaii law barring physical disability discrimination was not preempted by the ADA); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84 (2d Cir. 1997) (holding New York age discrimination action was not preempted by the ADA).
67 Id.; (citing Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S2d 253, 257 (1996);
68 Ryan L. Bangert, When Airlines Profile Based On Race: Are Claims Brought Against Airlines Under State Anti-Discrimination Laws Preempted By the Airline Deregulation Act?, 68 J. Air L. & Com. 791, 801(2003); see Thomas v. United Parcel Service, 241 Mich. App. 171 (2000) (holding that former African-American employee’s race discrimination claim was not preempted by the ADA).
69 Abdu-Brisson, 128 F.3d at 84; Wellons, 165 F.3d at 496; Thomas, 241 Mich.App. at 181; see alsoWellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (“State law claims of racial discrimination—as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual’s ability to render service safely and efficiently—are not preempted, in our view; they bear ‘too tenuous, remote, or peripheral’ a relation to airline rates or services.”); Thomas, 241 Mich.App. 171, 181 (2000) (“Plaintiffs’ race and gender are wholly unrelated to defendants’ services”).
70 Bledsaw, supra note 65; Fitzpatrick v. Simmons Airlines, Inc., 218 Mich. App. 689 (1996).
71 Fitzpatrick, 218 Mich. App. At 692. See alsoBelgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992) (“any law or regulation that restricts an airline's selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one ‘relating to,’ the services to be rendered by the airline”)
72 Bangert, supra note 22 at 803.
73 Bledsaw, supra note 65 at 5.
74 Doricent v. American Airlines, Inc., 1993 WL 437670 (D.Mass 1993).
75 Id.
76 Id. at *5.
77 Bledsaw, supra note 65 at 5.
78 Huggar v. Northwest Airlines, Inc., 1999 WL 59841 (N.D. Ill. 1999).
79 Id. at *1; see also Bangert, supra note 22 at 805-06.
80 Id.
81 Id. (citations omitted).
82 DeTerra v. America West Airlines, Inc., 226 F. Supp. 2d 274 (D.Mass. 2002).
83 Newman v. American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999).
84 Id. at 1131;
85 Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298 (N.D. Ill. 1996).
86 Id.; seeWilliams v. Express Airlines I Inc.,, 825 F. Supp. 831, 832-33 (W.D. Tenn. 1993) (holding that plaintiff’s claim for false imprisonment after he was denied admittance to a flight and then strapped to an immobile chair in the airline waiting area was preempted by the ADA); Lawal v. British Airways, PLC, 812 F. Supp. 713, 715 (S.D. Tex. 1992) (holding that plaintiff’s false arrest and false imprisonment claims where airline personnel detained the plaintiff and forced him to purchase a new ticket were preempted); Galbut v. American Airlines, Inc., 27 F. Supp. 2d 146 (E.D. N.Y. 1997) (holding that plaintiff’s false arrest and false imprisonment claims arising out of airline’s refusal to permit plaintiff to upgrade using stickers the airline had falsely alleged were stolen and the demand for payment for the upgrade were preempted by the ADA); Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (passenger’s claim for false imprisonment based on the airline’s refusal to permit him to board due to the airline’s failure to ask for photo identification at the point of original departure was preempted).
87 Chrissafis, 940 F. Supp. at 1298.
88 Id.; see Diaz Aguasviva v. Iberia LineasAereas 902 F. Supp. 314, 316 (D. Puerto Rico 1995) (permitting a passenger to pursue a claim that airline personnel falsely identified the passenger as an illegal alien, causing police and customs agents to arrest and detain her); Curley v. American Airlines, Inc., 846 F. Supp. 280, 281-82 (S.D.N.Y. 1994) (holding that plaintiffs claim that the flight crew had falsely arrested the passenger for smoking marijuana, causing him to be strip-searched, was not preempted); Bayne v. Adventure Tours USA, Inc., 841 F. Supp. 206, 207 (N.D.Tex 1994) (refusing to preempt a passenger’s claim that an airline pilot made misrepresentations to police, causing the plaintiff to be taken into custody, detained, and subjected to a luggage search); Rombom v. United Airlines, Inc., 867 F. Supp. 214, 224 (S.D.N.Y. 1994) (finding that false imprisonment claims stemming from the airline’s decision to have plaintiff arrested, allegedly motivated by spite, were not preempted).
89 Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1289-99 (N.D. Ill. 1996)
90 Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).
91 Id.; see also Chrissafis , 940 F. Supp. 1292 (recognizing this distinction). In addition to defamation and slander, the “other” intentional tort claims included tortious interference with a business relationship, fraud, intentional infliction of emotional distress, and tortuous interference with a business relationship.
92 Travel All Over The World, Inc., 73 F.3d. at 1433; compare Fenn v. American Airlines, Inc., 839 F. Supp. 1218, 1223 (S.D. Miss. 1993) (finding claims for slander unrelated to airline “services”) with Chukwu v. Board of Directors of British Airways, 889 F. Supp. 12, 14 (D.Mass. 1995) (finding specific claims for slander related to airline “services”) and Pearson v. Lake Forest Country Day Sch., 262 Ill.App.3d 228 (1994) (same).
93 Id.
94 Id. at 1433.
95 Id. citing Morales, 504 U.S. at 383-85.
96 Id. at 1433.
97 Travel All Over The World, Inc., 73 F.3d at 1434..
98 Id.
99 Id. (citing Hodges, 44 F.3d at 336); see alsoDeTerra, 226 F. Supp. 2d at 277 (finding handicapped passenger’s claims for intentional and negligent infliction of emotional distress in connection with his denial of boarding on a particular flight was preempted); Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D.Mass. 1995) (concluding that plaintiff’s claim for intentional infliction of emotional distress based on the allegation that he had been improperly denied boarding on a flight was preempted by the ADA).
100 Morales, 504 U.S. at 384.
101 See Abdu-Brisson, 128 F.3d 77, 82 (2d Cir. 1997); DeBuono v. NYSA-ILA Medical and Clinical Serv., 520 U.S. 806, 816 (1997).
102 Abdu-Brisson, 128 F.3d at 82 (emphasis added); citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Boggs v. Boggs, 520 U.S. 833 (1997) (“We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects).
103 Travelers Ins. Co., at 655 (Too expansive an interpretation of “relate to,” according to the Court, “would be to read Congress's words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”).
104 SeeDuncan, 531 U.S. 1058 (cert denied).
105 Id.
106 See Morales, 504 U.S. at 378.
107 See Cipollone, 505 U.S. at 517 (quoting Malone, 435 U.S. at 505).
108 Smith v. America West Airlines, Inc., 44 F.3d 344, 346-47 (5th Cir. 1995).
About the Author
Matthew A. Passen is an experienced Chicago Personal Injury Lawyer with Passen Law Group. Prior to joining Passen Law Group, Mr. Passen was an associate in the litigation department of Jenner & Block LLP.
Mr. Passen received his B.A. magna cum laude, Phi Bete Kappa, in Economics from the University of Michigan in 2002. Mr. Passen obtained his law degree, summa cum laude, from DePaul University College of Law in 2006, where he graduated Order of the Coif. During law school, Mr. Passen was as a member of the DePaul Law Review.
During the 2003-04 academic year, Mr. Passen clerked for the Honorable Ronald A. Guzman, United States District Court for the Northern District of Illinois. He also spent the following semester clerking at the United States Attorney's Office, Northern District of Illinois.
Mr. Passen is a member of the Illinois Bar. He is a member of the Chicago Bar Association, Illinois Trial Lawyers Association, Illinois State Bar Association, and the American Association for Justice. Mr. Passen also works with elementary teachers and students in Chicago-area public schools, as a volunteer in the Constitutional Rights Foundation of Chicago's "Lawyers in the Classroom" program.
Experts on Topic: Dr. Cheryl Maranto, Marquette University
Research Suggests Open Borders Are Economic Growth Tool
Countries that restrict labor movements from other countries might be missing out on a great economic development opportunity not only locally, but for the world as a whole, according to a University of Iowa economist. Anthony Haller on American Law Journal: Women at Work Debate
[mage lang="" source="flickr"]california employment law and regulations[/mage] Fitness center laws in california?
Do you have to be 18 to work at a fitness center?
My parents are the managers of one and theyre considering buying it from the owner. If I have CPR and AED training and everything is it legal for me to work at the front desk? I cant seem to find a website on CA Fitness Center Regulations, but CA's Minor employment laws seem to say its okay. Its not like a hazardous environment or anything.
Shouldn't be a problem for you.
Biola MOL presents "Changes 2009", CA labor law update
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About Workers Compensation Law Los Angeles
Workers’ compensation refers to insurance provided to employees through their employer to cover medical expenses or any loss in the course of employment, workplace accident or the like.
In California, employers need to carry Worker’s Compensation Insurance or qualify for self-insurance to cover any type of injuries or loss in the workplace. Work related injuries refer to carpal tunnel syndrome or leg injuries or illnesses which include hypertension, excessive stress, and insomnia, heart and lung diseases due to over exposure to harmful chemicals and toxins. Although there are laws existing regarding workers’ compensation, determining one’s eligibility and compensation can give rise to complex issues and insurance companies denying your claims. The compensation includes benefits for time off during recovery from an injury, medical reimbursements and compensation for a long term disability or impairment.
If you personally experience any work related injury, and find difficulty in acquiring workers’ compensation benefits, the right person who can help you out is a Workers’ Compensation Attorney. Some situations arise when your employer or insurance denies your claim in spite of producing valid medical papers and your medical expenses. A Workers’ Compensation Attorney knows the legal intricacies and can make you aware of your legal rights and duties you were otherwise unaware of.
For a reliable and experienced Worker Compensation Attorney, log on to www.geklaw.com. We are a leading name among law firms in California and specifically in the Los Angeles area, handling personal injury cases, workers’ compensation cases and accident claims. Backed with 30 years of professional experience and expertise, we have helped many persons obtain worker’s compensation benefits for clients suffering from on-the-job injuries.
Sometimes workplace injury cases involve someone other than the two parties; employer and employee. A third party lawsuit may be filed and can add to a successful settlement. Such complicated cases are executed by the combined effort and expertise of our Workers’ Compensation Lawyer and Personal Injury Lawyer ensuring the best possible settlement.
Our attorneys also work for sustaining a healthy and productive work environment, work closely with Southern California’s labor unions and employer groups to improve the quality of working environment, working conditions and employee’s rights. For more information, visit www.geklaw.com.
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A Christian MBA in Human Resources Can Inspire Labor
Within the departmental structure of a company, the human resources (HR) office is responsible for selecting, training and effectively managing the employees of an organization. In times past, HR was viewed as specifically dealing with administrative tasks relating to personnel. Primarily, these tasks were of a disciplinary or police-like nature; human resources dealt with employees who violated company policy or the law, in some instances.
Today, the way HR conceives of itself is changing dramatically. Instead of processing employees for termination, advancement, or hiring, HR as a discipline is becoming more customer-oriented. Consequently, human resource workers are taking the role of employee sponsors, strategic partners in company management, and as advocates for changing policies to better reflect customer needs. This shift in human resources management does not change the basic tasks of day-to-day functions, such as coaching, performance management, policy recommendation, salary and benefits management, etc.
Being successfully hired for a position in human resources involves at least undergraduate-level academic preparation. Typical courses recommended for a career in HR are topics in finance, sociology, psychology and business. For individuals who wish for higher positions within the company hierarchy, graduate-level coursework is required. Commonly, a Christian MBA in Human Resources provides the necessary training needed to carry out the duties of any higher position.
There is an aspect to human resources that is often overlooked, despite the endless investigation into possible improvements in management. This aspect is the spiritual/ethical side of human resources. To be sure, the challenge of employment law in recent decades has necessitated an inflated focus by HR departments on legal responsibilities and liabilities. However, in many instances, this results in missing the forest for the trees. Christian spirituality in the development and management of organizations is starting to have a big impact, "for example on creating culture and climates in organizations that encourage moral behavior and a focus on the common good and well being, and others focus on spirituality as an intensively private and personal experience."
There is another question that must be answered: What can students do to prepare themselves for handling human resources with the Christian perspective in mind? The best way to do so is to apply for a quality Christian MBA program focusing on human resources. A MBA program built upon Christian faith and principles will contextualize the practice of business as serving God to the best of one's capacity. This way of viewing one's work transforms HR from management into service, which is a much more powerful way of looking at one's job.
Human resources management today is already known for demanding high standards. From the perspective of faith, the most important part of the actual work of human resources is respecting employees as human beings. This work breaks down into ensuring that oneself as well as fellow employees are accountable for their actions, treat everyone with fairness and an even hand, and make sure that no one is cheating, putting down or harassing anyone else.
These principles, if followed exactingly, can result in employees gaining respect for the business and the management team. This respect bears loyalty. Bringing Christian faith into one's human resources management results in both the quality of work and the quality of results improving.
About the Author
The Christian MBA is a magazine-style web site providing articles of interest to MBA students, from current events to developing your own management style sponsored by Liberty University.
Salary Ranges & Benefits Research Tips : How to Research Salary Ranges & Benefits for an Attorney
Payroll Florida Unique Aspects of Florida Payroll Law & Practice
Florida has No State Income Tax. There for there is no State Agency to oversee withholding deposits and reports. There are no State W2s to file, no supplement wage withholding rates and no State W2s to file
Not all states allow salary reductions made under Section 125 cafeteria plans or 401k to be treated in the same manner as the IRS code allows. In Florida cafeteria plans are not taxable for unemployment insurance purposes. 401k plan deferrals are taxable unemployment purposes.
The Florida State Unemployment Insurance Agency is
Agency for Workforce Innovation 102 Caldwell Bldg. 107 E. Madison St. Tallahassee, FL 323990211 8504887228
The State of Florida taxable wage base for unemployment purposes is wages up to dollar7,000.00.
Florida requires Magnetic media reporting of quarterly wage reporting if the employer has at least 10 employees that they are reporting that quarter.
Unemployment records must be retained in Florida for a minimum period of five years. This information generally includes name social security number dates of hire, rehire and termination wages by period payroll pay periods and pay dates date and circumstances of termination.
The Florida State Agency charged with enforcing the state wage and hour laws is
Agency for Workforce Innovation 107 E. Madison St. Caldwell Bldg. Tallahassee, FL 323990211 8502457105
There is no provision for minimum wage in the State of Florida.
There is also no general provision in Florida State Law covering paying overtime in a nonFLSA covered employer.
Florida State new hire reporting requirements are that every employer must report every new hire and rehire. The employer must report the federally required elements of
Employees name Employees address Employees social security number Employers name Employers address Employers Federal Employer Identification Number EIN
And
Date of hire Optionally Date of birth
This information must be reported within 20 days of the hiring or rehiring. The information can be sent as a W4 or equivalent by mail, fax or electronically. There is a no penalty for a late report in Florida.
The Florida new hire-reporting agency can be reached at 8888544791 8506563343
Florida does not allow compulsory direct deposit
In Florida there are no statutory requirements concerning pay frequency or the lag time between when the services are performed and when the employee must be paid.
Florida has no general provision on when terminated employees must be paid their final wages.
Deceased employees wages plus travel expenses up to dollar300.00 must be paid to the surviving spouse, children over 18 or the deceased parents in that order.
Escheat laws in Florida require that unclaimed wages be paid over to the state after one year.
The employer is further required in Florida to keep a record of the wages abandoned and turned over to the state for a period of five years.
There is no provision in Florida law concerning tip credits against State minimum wage.
In Florida the payroll laws covering mandatory rest or meal breaks are only that minors must have a 30 minutes meal period after four hours of work.
There is no provision in Florida law concerning record retention of wage and hour records therefor it is probably wise to follow FLSA guidelines.
The Florida agency charged with enforcing Child Support Orders and laws is
Office of Child Support Enforcement Department of Revenue P.O. Box 8030 Tallahassee, FL 323148030 8006225437 httpsun6.dms.state.fl.usdorchildsupport
Florida has the following provisions for child support deductions:
When to start Withholding 1st pay period after 14 days from service When to send Payment Within 2 business days of Payday. When to send Termination Notice Promptly Maximum Administrative Fee dollar 5 for 1st payment then dollar 2 each Withholding Limits Federal Rules under CCPA.
Please note that this article is not updated for changes that can and will happen from time to time.
About the Author
Did you find this article useful? For more useful tips and hints, points to ponder and keep in mind, techniques, and insights pertaining to Internet Business, do please browse for more information at our websites. http://www.adsence-dollar-factory.com http://www.100earningtips.com
[mage lang="" source="flickr"]employment law federal statutes[/mage] Do the airlines have access to sealed and expunged criminal records during employment screening?
Hi, I am a pilot about to move up to the regional airlines from my job as a flight instructor. When I was younger (18) I had several criminal records expunged and sealed. To my understanding of state and federal statutes any employee who is not holding a position in public office such as an attorney or police officer need admit that he or she has ever had a criminal conviction if that conviction is sealed or expunged. Are pilots required by law to disclose information regarding sealed and expunged records? If yes or no please post the appropriate federal statute in your response to my question so that I may refer to it for reference. Just curious...I have heard two sides to this story and no proof of either. If you have the black and white on this that would be great.
I would really appreciate your help with this to any aviation attorneys out there.
Well, 'yes and no'.
The *airlines* do not have access to sealed or expunged records. BUT.... TSA does.
Since you're moving into a job where you'll need airside access, you're fairly soon going to need to apply for a TWIC -Transportation Workers Identification Credential - which is issued by the TSA. TWIC is currently only being used at maritime ports, but expansion to airports is starting very soon.
The bad news is that TSA has access to sealed or expunged records in order to approve or deny TWIC requests. The good news is that only pretty serious offences are grounds for denial.
QUOTE:
What are the permanent disqualifying criminal offenses?
Per 1572.103(a):
(1) Espionage or conspiracy to commit espionage
(2) Sedition or conspiracy to commit sedition
(3) Treason or conspiracy to commit treason
(4) A federal crime of terrorism (18 U.S.C. 2332(g)) or comparable State law
(5) A crime involving a TSI (transportation security incident). Note: A transportation security incident is a security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area. The term "economic disruption" does not include a work stoppage or other employee-related action not related to terrorism and resulting from an employer-employee dispute.
(6) Improper transportation of a hazardous material under 49 U.S.C. 5124 or a comparable state law
(7) Unlawful possession, use, sale, distribution, manufacture, purchase...or dealing in an explosive or explosive device
(8) Murder
(9) Threat or maliciously conveying false information knowing the same to be false, concerning the deliverance, placement, or detonation of an explosive or other lethal device in or against a place of public use, a state or government facility, a public transportations system, or an infrastructure facility
(10) Certain RICO (Racketeer influenced and Corrupt Organizations) Act violations where one of the predicate acts consists of one of the permanently disqualifying crimes
(11) Attempt to commit the crimes in items (a)(1)-(a)(4)
(12) Conspiracy or attempt to commit the crimes in items (a)(5)-(a)(10)
Note:
- Convictions for (a)(1)-(4) are not eligible for a waiver.
- Convictions for (a)(5)-(12) may be eligible for a waiver if the applicant is initially disqualified
What is an interim disqualifying criminal offense?
Conviction within 7 years of TWIC application, or a finding of not guilty by reason of insanity of an interim disqualifying criminal offense
Release from incarceration for an interim disqualifying criminal offense within 5 years of application
Under want, warrant, or indictment for an interim disqualifying criminal offense (until the want or warrant is released or the indictment is dismissed)
Interim disqualifying crimes are eligible for a waiver - see next question
What are the interim disqualifying criminal offenses?
Per 1572.103(b)(2):
(i) Unlawful possession, use, sale, manufacture, purchase, distribution...or dealing in a firearm or other weapon
(ii) Extortion
(iii) Dishonesty, fraud, or misrepresentation, including identity fraud and money laundering (except welfare fraud and passing bad checks)
(iv) Bribery
(v) Smuggling
(vi) Immigration violations
(vii) Distribution, possession w/ intent to distribute, or importation of a controlled substance
(viii) Arson
(ix) Kidnapping or hostage taking
(x) Rape or aggravated sexual abuse
(xi) Assault with intent to kill
(xi) Robbery
(xii) Fraudulent entry into a seaport
(xiii) Lesser violations of the RICO (Racketeer Influenced and Corrupt Organizations) Act
(xiv) Conspiracy or attempt to commit crimes above
Note:
- Applicants may be eligible for a waiver if initially disqualified for any of the above
[mage lang="" source="flickr"]california labor and employment laws[/mage]
EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS
EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS
It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with "immediate (or successively higher) authority over the employee." However, in cases where the employee does not suffer a "tangible employment action," such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.
Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.
Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.
While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s--that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.
The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.
I. The Importance of Having an Effective Harassment Policy
A. The Faragher/Ellerth Defense
Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”).
Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. "A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits." Ellerth, supra.
The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court's decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.
A zero-tolerance harassment policy must fit the environment and employees. The Ellerth court stated:
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it ... [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.
Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.
B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.
(1) Write in simple English.
(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.
(3) State the company’s "zero-tolerance" philosophy in the policy regarding all forms of harassment,
(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.
(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.
(6) Provide a "clear chain of communication," allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.
(7) State that employees who report prohibited conduct will be protected from retaliation.
(8) State that the employer will promptly investigate the matter in an objective and discrete manner.
(9) Provide the form of disciplinary action to which offenders can expect to be subjected.
(10) State that the employer will also take remedial action.
(11) Train your management employees and line employees on the policy and procedure.
(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.
C. The Faragher/Ellerth Defense and Hawaii Law
Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.
Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:
§12-46-109 Sexual harassment.
(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:
(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual's employment; or
(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or
(3) That conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.
(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee's failure to give such notice may not be an affirmative defense.
D. Problem Areas for Employers
* Inadequate complaint procedure
* Failure to disseminate policy
* Employer on notice of harassment
* Failure to promptly investigate
* Failure to take appropriate disciplinary action
* Failure to apply it even-handedly
* Failure to review and revise when necessary
* Failure to provide training
E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?
In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.
The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”
In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor. The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.
The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances. The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”
According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.
II. The Importance of Conducting EEO Training
Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.
Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.
Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment. See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).
Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer's complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.
Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.
A. Training as a Tool for Prevention
The EEOC's Policy Guidance on Sexual Harassment states:
An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.
The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).
As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.
In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.
Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization - this may preserve the employer's right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.
Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.
B. Training and the Faragher/Ellerth Defense
Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.
The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.
C. Training and Damages Issues Under Hawaii Law
Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.
Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).
Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.
D. Training to Reduce Exposure to Punitive Damages
In Kolstad v. American Dental Association, the Court held that "in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's 'good-faith efforts to comply with Title VII.'" Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.
Roman Amaguin, Esq. is a employment law lawyer in Hawaii who also regularly practices in the areas of labor law and civil litigation. Mr. Amaguin regularly appears in regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission. He understands now is the time for the legal profession to reconsider the manner in which it provides services to the community. Accordingly, flat rate projects and other alternative fee arrangements are always explored with his clients.
Mr. Amaguin litigates a wide range of civil cases involving common law and statutory claims.
Visit his website at www.amaguinlaw.com
Workplace Sexual Harassment-Spanish (Equal Rights 101)
recently got " pulled " by management at work and was given a formal warning . my union are livid because the mistake was caused by someone else before me not closing a valve behind them and it was my fault because i never saw it, seems im being punished for someone else not doing their job ???
needless to say im totally appealling this one however management never took minutes of the meeting or volunteered to do so .
I think that this may be against employment law ???
Anyone know more about this ???
In addition, my union rep was present but havent been able to get hold off him as he is on holiday . like i said no minutes taken , so as far as im concerned no record as to what was really said. how can this be fair ???
I personally would appeal against this warning on the grounds that you feel you have been discriminated against. State that you feel a full investigation has not been completed and that you feel you are being punished for the failing of others. State also that you feel if the management team had done a full investigation that they would have found the root cause of the problem and therefore adjusted their policies and procedures management systems, to prevent this happening again.
Check the job description, training documents of the task you were doing at the time this happened and if neither of them mention "check the valve has been closed" then you have not failed and cannot be held accountable.
The fact that no minutes were taken could be in your favour you can always argue this at a later date if need be and again it will show as a management failing. Professional companies do take minutes. Always take a witness in with you and get them to make notes for you to keep.
Ask for the letter to be held on your personnel file which will balance any information they keep about the warning. Contact your union regional office just because your union rep is on holiday doesn't mean you can't have advice when you need it.
Employment rights, trade union freedoms & Morning Star 1/3
Ordinance will make it easier to enforce smoking law
The City Council has approved a new ordinance to make it easier to enforce a state ban on smoking in public places. The city ordinance will allow the Galesburg Police Department to prosecute the smoking ban, eliminating the state’s cumbersome enforcement mechanism. Employment Law: Overtime Wages
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Dangers Associated With the Welding Profession
With construction accidents on the rise over the last few decades, the U.S. Department of Labor (DOL) specifically focused on those in the welding sub-profession of construction to find an alarming increase in accidents and death among welders. According to the DOL, from 1992 to 2001, the death rate of a welder increased by 68 percent of all construction workers represented.
If an employee currently works, previously worked, or is in an area where industrial welding is being performed, chances are the employee was exposed to welding rod fumes. Recent medical research suggests that exposure to welding fumes may lead many health problems, including two serious illnesses, Parkinson's disease and Manganism. There are many court cases pending regarding this exposure, the hazards involved and the health impact on employees.
For example, in early September 2005 a Mississippi shipyard worker who claimed his neurological problems were caused by inhaling fumes from welding rods concluded his lawsuit by settling with the final two welding company defendants in his case. The worker's lawsuit against the two welding manufacturers was scheduled for trial the following week. The lawsuit was settled for more than one million dollars.
As stated, the two diseases most commonly reported in medical research from the exposure to welding fumes are Manganism and Parkinson's disease. A description of each of these diseases follows:
* Manganism, also known as secondary Parkinsonism, is a condition that develops when excessive levels of manganese injure that portion of the brain that controls body movements. Symptoms of this condition include fatigue, headache, slow or slurred speech, poor memory, impaired balance and tremors, delusions and hallucinations, disorientation and/or difficulty walking.
* In addition to Manganism, recent studies have found that exposure to manganese fumes is associated with the early onset of Parkinson's disease. In fact, research conducted at the Washington University School of Medicine found that welders developed symptoms of Parkinson's disease an average of 15 years earlier than the general population.
Many motor system disorders are caused by the decrease and eventual loss of brain cells that produce dopamine, which is imperative to the body. Of these diseases, Parkinson's is classified with these disorders. Of the four main symptoms of the illness is a seizure or tremble like movement that often occurs in the face and appendages including legs, hands and arms; rigidity, or stiffness of the limbs and trunk; slowness of movement; and balance as well as poor or wavering posture and coordination are among the other symptoms. As these symptoms become more pronounced, patients may have difficulty walking, talking, or completing other simple tasks. Early symptoms of the disease are subtle and occur gradually. Other symptoms may include depression and other emotional changes; difficulty in swallowing, chewing, and speaking; urinary problems or constipation; skin problems; and sleep disruptions.
It is advisable that legal consultation is sought out by those who have been or currently are working as a welder or for those who may have been in the area where welding has occurred. It is necessary to study work history records and evaluate medical records to determine whether there may be a valid claim against the manufacturers. It is advisable to contact a welding injury law firm as soon as possible because there is a statute of limitations on some claims.
About the Author
LegalView, http://www.LegalView.com, not only offers information on the welding accidents and injuries, but it also offers information for those who are in need of a mesothelioma attorney. Or, for information on other construction site accidents and injuries, visit http://construction.legalview.com/.
