Friday, February 25, 2011

Unemployed Treated Disparately???

The Employment Opportunity Commission seems to have a lot of time on its hands.  The EEOC has decided to look into if companies may be excluding job applicants simply because they don’t have jobs.  EEOC Commissioners stated at a hearing this week that they are investing whether excluding unemployed applicants from applying for a job could have a greater effect minorities.

The EEOC noted that the overall unemployment rate is 9% equating to nearly 14 million people out of work. As compared to the general population, the unemployment rate is higher among percent among Blacks and Hispanics, 15.7% and 11.9% respectively.

So a friend asked what I thought about this.  Was the EEOC serious?  While it’s seems that the EEOC DOES have too much time on their hands, notwithstanding that, it is true that the racial discrimination cases can be supported by the use of statistics.  I wonder what the true motivation of the employers who employed these hiring methods. 

A counter to the EEOC’s position is that if the employer has a legitimate, non-discriminatory reason for its decision, it may avoid liability.  If the employers can create a rational business basis for not permitting ANY unemployed persons from applying for jobs, I suspect that the courts may not find a basis for allowing the suits to proceed to trial.  I guess we’ll see if how much money our government will spend on analyzing statistics rather than trying to figure out how to create incentives so business owners will create new jobs!

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Thursday, February 17, 2011

Delta Assessed A Record Fine

If you need assistance getting on or off a plane, think twice about Delta.

The U.S. Department of Transportation (DOT) assessed the largest civil penalty in its history, $2 million,  against Delta Air Lines for violating rules meant to protect air travelers with disabilities.  “Ensuring that passengers with disabilities receive fair treatment when they fly is a priority for the Department of Transportation,” said U.S. Transportation Secretary Ray LaHood.  “We take our aviation disability rules seriously and will continue to enforce them vigorously.”

The U.S. Department of Transportation requires all airlines to provide assistance to passengers with disabilities while boarding and deplaning aircraft.  Airlines are required to respond within 30 days to written complaints of disabled passengers and specifically address the issues raised in those complaints.  

An investigation of disability complaints filed against Delta revealed many violations of the requirement to provide Delta passengers with assistance getting on and off the airplane.  The complaint about Delta showed that it frequently did not provide an adequate written response to disability complaints nor did it properly report each disability complaint.

Delta will only need to actually part with $750,000 of the $2,000,000.  The balance may be used by Delta to improve its service to passengers with disabilities beyond what is required by law. Delta may the money toward the development and implementation of an automated wheelchair tracking system at the carrier's major hub airports, developing and distributing customer service surveys for passengers, and/or enhance its website to improve air travel accessibility.  The actual costs of these improvements by Delta is expected to be significantly greater than the credited amounts by the fine.

Monday, February 14, 2011

Impact of The Souza Settlement

So what does Dawnmarie Souza’s case against American Medical Response of Connecticut Inc. mean to Pennsylvania employers?  Most experts don’t think it will have much of an impact.  First of all remember than Souza was a union employee and a large part of the claims in her suit were that AMR violated the collective bargaining agreement.  Most of us don’t have collective bargaining agreements with our employers. 
The National Labor Relations Board’s website says that the Nation Labor Relations Act (NLRA) protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities.  Some examples of protected concerted include:

-       Two or more employees addressing their employer about improving their working conditions and pay
-       An employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions
-       Two or more employees discussing pay or other work-related issues with each other
-       Refusing to do any or all of these things

While an employee generally does not have a protected right to free speech when dealing with private employers, the NLRB tried to assert that Souza’s conversations with her co-workers on Facebook were in the nature of self-organization and collective bargaining.  Additionally as an "at will" employee, an employee can be fired for any reason as long as they are not fired based on race, age or other protected status.

In order for the same argument to be effective with a private employer, it is my opinion the NLRB will need to argue and prove that the Facebook postings were meant to initiate, advance, or discuss self-organization or collective bargaining otherwise it is not likely covered by the NLRA.  Nonetheless companies should periodically review their internet/social media policies to ensure that they are not overly broad.

Saturday, February 12, 2011

Can Your Facebook Posting Get You Fired?


Employee Fired For Facebook Posting “Wins” Lawsuit
The title of this posting is a little confusing to the average person but so is the case. 
Dawnmarie Souza, a paramedic for American Medical Response of Connecticut Inc., posted comments on her Facebook page on the same day she was suspended from work after refusing her supervisor, Frank Filardo's request to write up a report on a complaint about her own performance.   Souza Facebook remarks sparked supportive postings from her co-workers to which Souza responded with additional negative comments.  After the suspension, Souza was ultimately terminated.   Since Souza was a union employee she requested union representation which Management rejected.
The Souza case caught the attention of the National Labor Relations Board which claimed AMR “illegally terminated [Souza] who posted negative remarks about her supervisor on her personal Facebook page” and that the company “maintained and enforced an overly broad blogging and internet posting policy.”  Further contending that [Souza’s] Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provision, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in their right to engage in protected concerted activity.
AMR’s response was that Souza was terminated “based on multiple, serious complaints about her behavior” which included her negative Facebook postings related to her supervisor.
This case which some have called “groundbreaking” was scheduled for a hearing before an Administrative Law Judge on Tuesday, where the NLRB would have argued that Souza's firing was improper, in part because her Facebook postings about her supervisor, outside the workplace, were protected activities, even they were posted on the Facebook or the Internet.
Rather than participate in the hearing, AMR agreed to settle the case with Souza.  The terms of the settlement which have not been completely disclosed are reported to include payments to Souza and conditions she must meet as well as AMR’s agreeing to revise its "overly broad” policy regarding blogging, Internet posting, and communications between employees.  This position has obviously concerned many employers. 
Since Souza was a union employee, the legal community is questioning how this case will impact private employers in Pennsylvania.  My perspective … in the next blog.


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Sunday, February 6, 2011

Am I Entitled to My Unused Sick Leave and Vacation Pay?


This is a common question asked by employees who have been terminated by an employer.  Sadly, there is no specific Pennsylvania law which requires an employer to pay an employee for sick leave, vacation pay or provide severance pay.  The employer only has an obligation to pay employees these benefits if the employer has a policy to pay such benefits or a contract with the employee to pay these benefits. If an employer has a handbook or written policy which provides for the payment of such benefits, the employer must follow its own rules for these kinds of payments. 

If you think you are entitled to be paid for these types of benefits you can:

a)    Personally request payment from your employer

b)    Electronically file a request for payment utilizing the Pennsylvania Department of Labor and Industry – Here’s a link to the fillable, submittable form  http://tiny.cc/pjrlawwage

c)    Institute a legal action under the Wage Payment and Collection Law, Act of 1961, P.L. 637, No. 329.

For more information on Employment Law, visit our website: www.LawOfficesofPeterJRusso.com

Saturday, February 5, 2011

Saying Goodbye To Amber

For many of our clients, our receptionist Amber was the first and last person they saw when they visited our office.  Amber recently made the decision to move back to her hometown of Long Isand, New York.  Friday was her last day and she'll be missed by her co-workers as well as clients that came to depend on her.  We all wish her the best in her future endeavors and hope to see her again soon!

Tuesday, February 1, 2011

Most Common Tax Season Question:

Most Common Tax Season Question:

We frequently get asked which parent gets to claim a child on their taxes.  Communication is the first line of defense.  If the parents don’t discuss the matter and both parents file electronically, the one that files first will generally be accepted by the IRS.  The second return will be rejected because the child’s Social Security number will have already been used by that first return. 

If the second parent is entitled to claim the child, the rejected electronic return can be converted into a paper return and filed by mail.  If this is done, the IRS will start a review of both returns causing the IRS to review the relationship, age, residency; support, and joint return tests to determine if the child could be a qualifying child of more than one person.

While its possible for the child to be a qualifying child for more than one person, the IRS only allows one person to actually treat the child as a qualifying child.  Some or all of the following tax benefits could be available for the parent who can claim the child as a qualifying child:
• The taxable exemption for the child.
• The child tax credit.
• The ability to file utilizing head of household filing status.
• The ability to utilize tax credits for child and dependent care expenses.
• The exclusion from income for dependent care benefits.
• The claim an earned income credit

Since the “other parent” cannot take advantage of any of these benefits, if the parents can’t agree on which will use the “qualifying child” on their return, the IRS has established “Tiebreaker Rules” to determine which person can treat the child as a qualifying child to claim those tax benefits.

Some of the “Tiebreaker Rules” include:

If the child lived with both parents for the same amount of time during the tax year, the IRS will view the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for that tax year.
If neither parent can claim the child as a qualifying child, the child is viewed as the qualifying child of the parent who had the highest AGI for that tax year

If a parent can claim the child as a qualifying child but no parent actually does claim the child, the child is viewed as the qualifying child of the parent who had the highest AGI for that tax year, but only if that parent’s AGI is higher than the highest AGI of any of the child’s parents who can claim the child.

For more information, see IRS Publication 501