Yes, Conservatives, There Is Sexual Harassment

In the wake of the Herman Cain sexual harassment scandal, some conservatives are making outrageous and insulting statements about women who are sexual harassment victims. They ask, "Is there anyone who thinks sexual harassment is a real thing?" (National Review). "Experts" spout off nonsense like, "You know what sexual harassment is? You know what it really is? It's a political tool. . . . It's become an accredited way for malcontent women to score some money." (Rush Limbaugh) and "It always ends up being an employee who can't perform or who under-performs and is looking for a little green." (Laura Graham).

As an employment lawyer who has handled sexual harassment cases for 25 years, I want to make one thing perfectly clear: Yes, conservatives, there is sexual harassment. It's real. It happens every day. Twenty-nine percent of Americans say they've been sexually harassed at some point. And you don't want a world where it becomes legal.


SEXUAL HARASSMENT ESCALATES

Sexual harassment is almost never about sex. It's about power, plain and simple. Harassers, like rapists, like to exercise power over their victims. These are men (and sometimes women) who choose their victims carefully. They're sneaky. They know the danger of getting caught.

Read more in The Huffington Post. I'd love to see your comments there.





Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

What Is Color Discrimination And How Do I Prove It?

Even if your harasser is the same race, you can still complain about discrimination if they’re biased due to your color. Basically, color means the shade of your skin. If someone of your same race favors lighter or darker skinned employees, then that could be color discrimination. If your employer has 15 or more employees, then color discrimination is illegal under Title VII of the Civil Rights Act of 1964.

Evidence: how do you prove discrimination based on color? Biased comments by supervisors could be evidence that their decision was because of your color. Referring to you as being too tanned, too pale, or similar statements could show that they engaged in color discrimination.

Most supervisors aren’t that obvious. You can look at others treated differently under the same circumstances. If mostly darker people were kept on in a layoff and lighter employees are targeted, color discrimination might be involved.

Harassment: Anything that doesn’t affect you in the wallet is in the category of harassment. Your employer can’t make you miserable due to your color to try to get you to quit. You can’t be called names and made fun of due to your color either.

What to do?: If it’s harassment, you have to report it first under the company’s policy for reporting harassment and give them a chance to fix the situation. Only if they don’t fix it or if the harassment continues can you file a charge of discrimination with EEOC or your state agency.

If it’s an adverse employment action like denial of a promotion, demotion, suspension without pay, or termination/layoff, you must file a charge of discrimination with EEOC or your state agency before you can sue.

Donna’s tips:

c. If you’re presented with a severance agreement and think you’re targeted for layoff due to your color, contact an employment lawyer. They might be able to negotiate a better severance package for you.

d. Even if the boss is your same color, that doesn’t mean they can’t discriminate based on color. If they prefer lighter skinned employees over darker ones, or darker over lighter, it still might be color discrimination.

Everything You Wanted To Know About Your Employee Handbook (That You Didn't Bother To Read)

In most states, your company handbook isn’t a contract. They don’t have to follow their own procedures. However, some employers are starting to make employees sign them and add things like an agreement to arbitrate all claims against the employer or a waiver of jury trial.

You will want to read your handbook and understand your rights and responsibilities. Sections you’ll want to pay extra careful attention to are:

Discrimination policy: Where do you report discrimination? Who do you report it to if your supervisor is the discriminating person? If you’re a federal employee, your deadlines are extremely short, so be aware. Know your policies before you need them.

Harassment policy: Ignore that they’ll say to report all harassment. But do report harassment based on race, age, sex, national origin, disability, genetic information, religion, color, whistleblowing, making a worker’s comp claim, or taking Family and Medical Leave. Follow the published policy to the letter (except if it says to report verbally, make sure you also report in writing).

Sick leave/personal leave: Understand who you have to call and how far in advance. Don’t give them an excuse to fire you.

Family and Medical Leave: The employer has to publish the process you must follow to take FMLA leave. Make sure you follow all the steps and get them whatever medical certifications you need to provide.

Donna’s tips:

a. Knowing your handbook makes sense. These are the employer’s rules and you have to follow them.

b. Make sure you keep your copy of the handbook. If the employer wants you to sign saying you’ve received it but they won’t let you keep it, sign, then write, “saw briefly, not allowed to keep a copy.”

c. Pay attention to those updates that the employer sends around in memo form.

d. If it’s a contract for one party, it’s a contract for both. Be careful what you sign. If your company wants you to sign away your rights, have a lawyer take a look, or make sure you understand what you’re agreeing to.

e. If the company fails to follow its own policies, that might be evidence of discrimination or retaliation if they follow the policies for other employees.

Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

Just like the Tea Party on the other side, the Occupy Wall Street movement is on the brink of having real political power. Everyone wants to know -- what do they want? What changes will they ask for? With unemployment still hovering at 9% and people scared they will lose their jobs for blinking wrong, America needs real changes to its employment laws. When I wrote my article, 10 Workplace Rights You Think You Have -- But Don't, many commenters were angry -- with me. They thought I must be wrong. I wasn't.

It's time workers started paying attention to the laws that protect them, and the laws that ought to. As a lawyer who has practiced employee-side employment law for over 25 years and who has seen how bad law can devastate hard-working Americans, here are some changes I'd suggest if I were advising the Occupy Wall Street movement.

Read more in The Huffington Post. I'd love to see your comments there.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

My Employer Defamed Me!

So your employer called you incompetent. Or you disagree with your write-up. You're hopping mad. It's a lie! You're ready to sue. Slander. Libel. It has to be something you can sue for, right? Meh. Probably not. Slander and libel are in the general category of defamation. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation. But most statements, even false ones, probably aren't defamation.

Here's what you need to know about defamation in the workplace:

References: Some states have statutes protecting job references to some extent, but even then the employer generally cannot give out knowingly false information. A statement that the employee was an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

Qualified privilege: Employers also have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged.

Publication: The information must have been “published” to a third party, which only means that it had to be said to someone other than you. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies (such as unemployment), and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific.

Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact. Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

Donna’s tips:

a. Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b. Defamation claims against employers can be tough. Many judges just don’t like them.

c. Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you.

d. If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.

Give Thanks To The Labor Movement

In honor of Jobs Week on AOL Jobs, I want to speak up in praise of an entity that has taken a beating this year – the labor union. Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you.  . . . Read more on AOL Jobs.



 Thanks to Gina Misiroglu of Red Room for putting me in touch with AOL!