This is part of the continuing series of debate questions being posted by employee- and management-side employment lawyers. These are my questions for Vice President Joe Biden.
Your opponents have supported efforts to roll back union rights and the strength of unions. You said this to the AFL-CIO: "We don't see the value of collective bargaining, we see the absolute positive necessity of collective bargaining. Let's get something straight: The only people who have the capacity -- organizational capacity and muscle -- to keep, as they say, the barbarians from the gate, is organized labor. And make no mistake about it, the guys on the other team get it. They know if they cripple labor, the gate is open, man. The gate is wide open. And we know that too." Why do you think it's important to have strong labor unions in America and what do you think your opponents propose that will harm working Americans?
Then I'd ask:
You said this about your opponents on Labor Day: "Ladies and gentlemen, you, organized labor, are one of the reasons why this country is coming back. Folks, let me make something clear and say it to the press: America is better off today than they left us when they left." How are working Americans better off than they were under George W. Bush?
I might want to know this (from all the candidates, really):
More and more states are passing laws to allow employees to bring their guns to work. They can't be fired for keeping weapons in their vehicles or for telling coworkers they've done so. What kind of legislation, if any, do you think we should have in this country to protect unarmed workers from coworkers who "go postal"?
I'd also want to ask:
President Obama signed the "VOW to Hire Heroes Act" into law on November 21, 2011. The Returning Heroes Tax Credit provides businesses that hire unemployed veterans a maximum credit of $5,600 per veteran, and the Wounded Warriors Tax Credit offers businesses that hire veterans with service-connected disabilities a maximum credit of $9,600 per veteran. This law also fixed a loophole in the law to make sure it is illegal to harass service members at work due to their military service. Why has your administration thought it was important to help veterans and military members get back to work and stay at work?
Showing posts with label military. Show all posts
Showing posts with label military. Show all posts
Wednesday, September 26, 2012
Friday, December 30, 2011
Donna’s Employment Law Predictions for 2012
I’m getting out my iPad’s magic 8-ball app and looking into the future. I see a big year for employment law issues in 2012. Here’s where I think we’ll see lots of litigation or legislation:
Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.
Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.
Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.
Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.
Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.
Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.
Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.
Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.
Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.
Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.
Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.
Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.
Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.
Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.
Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.
Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.
Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.
Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.
Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.
Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.
Friday, December 23, 2011
VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military
Remember back in May when I wrote about a court that said harassing people at work for their military service was not illegal? The case was one where airline pilots who are military members sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.” The 5th Circuit said USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.”
Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.
The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.
Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.
Donna’s tips:
a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.
b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.
c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.
So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.
Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.
The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.
Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.
Donna’s tips:
a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.
b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.
c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.
So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.
Sunday, May 22, 2011
Serving Your Country? Too Bad: Court Says It’s Legal For Your Employer to Mock Your Military Service
Airline pilots who are members of the U.S. Armed Forces Reserves and the Air National Guard sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.”
The court found that USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.” Um, okay. So harassment and insults don’t affect your status at work? Apparently not.
Two circuits have recognized constructive discharge claims under USERRA, but this would require showing that no reasonable person could have tolerated the working conditions. That’s really tough to prove.
This was the first federal appellate decision on this issue, but some federal district courts have held to the contrary, so more courts will be weighing in on this issue.
In the new political climate of employee rights under siege, can we all at least agree that we need to protect those who serve our country? We should not allow employers to make our military members miserable at work due to their service to our country. Will Congress fix this? Or will they continue to allow employees, even those in our military, to be the victims of vicious political maneuvering?
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