Richmond Virginia Personal Injury Lawyer - Workplace Discrimination

Wal-Mart Settles Massive Wage & Hour Lawsuit

Zev Antell — Thu, 03 Dec 2009 15:59:17 GMT

According to an article in today’s Boston Globe, Wal-Mart has agreed to settle a wage and hour lawsuit which will net $40,000,000 to be divided amongst a class of tens of thousands of employees and former employees. The lawsuit alleged a cornucopia of violations including failure to pay overtime, denial of rest and meal breaks, and manipulation of employee time cards.

Companies that fail to pay overtime or who require workers to work “off the clock” run the risk of serious liability under state and federal law. Large companies like Wal-Mart with many different locations are wise to take stock of their wage practices because if violations exist, they are likely to be replicated throughout the company and not be isolated to a single location or even region.

Originally posted at InjuryBoard by Zev Antell

Department of Labor States Drug Reps are Entitled to Overtime

Zev Antell — Fri, 16 Oct 2009 10:48:53 GMT

The issue of whether Pharmaceutical Sales Representatives ("Drug Reps" as they are sometimes called) are entitled to overtime has been bouncing around and dividing the Federal Courts for several years. However, just yesterday the United States Department of Labor ("DOL") came out and affirmatively stated that Drug Reps are entitled to overtime compensation. In a current suit against drugmaker Novartis, the DOL issued an Amicus, or Friend of Court, brief stating that Drug Reps are non-exempt under the FLSA's Outside Sales Exemption and its Administrative Exemption. This a huge victory for Drug Reps seeking overtime compensation because the Federal Courts often defer to the DOL for proper interpretation of the FLSA. This means that Drug Reps who have previously been denied overtime could be entitled to millions of dollars in unpaid overtime compensation. In fact, it is not a stretch to think that other types of medical products representative may be entitled to overtime as well, provided they do no actual selling.

Originally posted at InjuryBoard by Zev Antell

Class Action Alleges Airline "Targeted" Military Pilots With Discrimination

Zev Antell — Thu, 03 Sep 2009 15:11:53 GMT

A recently filed lawsuit alleges that Continental Airlines discriminated against pilots actively engaged in service with the armed forces. According to an August 31 news report about the suit, it is alleged that Continental illegally failed to credit time toward seniority and provide benefits to pilots who were called away due to military obligations. The effect on seniority appears to be of particular importance because the length of tenure is determinative in deciding whether a pilot gets a desired route. The report also states that the lawsuit alleges harassment on the part of Continental against the pilots. Finally, there is also a claim that Continental failed to hire at least one candidate due to the fact that he was currently serving in the reserves. If true, any one of these allegations against the airline would be troubling on a number of levels. Those who choose to serve our country ought to be accommodated to whatever extent the law requires, if not to an even greater degree. Employers have a responsibility to recognize and respect the sacrifices made by these individuals.

Originally posted at InjuryBoard by Zev Antell

Delivery Drivers Win $22.75 Million Overtime Settlement

Zev Antell — Fri, 28 Aug 2009 18:04:00 GMT

According to an August 20th press release, a massive national Uniform provider, Cintas, came to terms recently on an almost $23 million settlement with a class of hundreds delivery drivers to whom it failed to pay overtime compensation.

The Fair Labor Standards Act (“FLSA”) is the Federal law mandating overtime compensation to persons who work more than forty hours a week. The law has a number of carve outs, more properly called exemptions, for broad groups of employees who are not entitled to overtime. The lawsuit alleged that Cintas misclassified the drivers as exempt employees under the FLSA. After an arbitrator ruled in favor of the drivers, the parties agreed to settle the matter for the above amount.

Many misconceptions exist about who is and is not entitled to overtime. For example, just because a person receives a salary does not mean they are exempt from overtime. Another mistaken belief is that “managers” cannot be entitled to overtime. The truth is that salary and title have little to do with the analysis. The law is far more concerned with an employee’s actual duties and responsibilities than anything else.

Originally posted at InjuryBoard by Zev Antell

Race Discrimination Case Wins Class Status at the Fourth Circuit

Zev Antell — Thu, 13 Aug 2009 10:08:22 GMT

The generally conservative Fourth Circuit Court of Appeals recently issued a ruling effectively granting class action status to a racial discrimination lawsuit originating out of South Carolina. The case involves alleged racial discrimination at a Nucor Steel plant. The Plaintiffs in the case claim, among other things, that African Americans were improperly denied promotions. They further allege that far more blatant incidents of racism took place at the plant as well. For example, the Plaintiffs contend that paraphernalia exhibiting the Confederate flag was available at the plant gift shop and that certain Caucasian employees openly used racial epithets while on the job.

Class status means that not only the named plaintiffs can be a party to a suit and that the interests of many, many affected people can be represented all at once. In this case, class status had been denied at the lower court level and was appealed to the Fourth Circuit. There, it was ultimately determined that the District Court Judge abused his discretion in refusing to certify the class.

The decision in Brown v. Nucor was just published on August 7, 2009 and can be found at Brown v. Nucor Corp., 2009 U.S. App. LEXIS 17643. For a number of reasons, the opinion may be significant. For starters, the case gives a clear roadmap on when and how a race class can win certification in the Fourth Circuit. Secondly, the opinion may signal a shift in how the Fourth Circuit Court of Appeals will treat similar cases going forward.

It is important to recognize that while this opinion marks a clear and decisive victory for the Plaintiffs, it says little about the merits of the case itself. The Court did not pass judgment on any facts or liability; it merely allowed the case to proceed as a class action. In laymen’s terms, the Plaintiffs won a big battle, but they have not yet won the war. It remains to be seen what happens next. Nevertheless, the precedential value of the Court’s opinion is undeniable as it will almost certainly play a prominent role in future discrimination actions where class status is sought.

Originally posted at InjuryBoard by Zev Antell

Census Report Confirms Race-Based Pay Disparities

Harris Butler — Tue, 28 Apr 2009 09:47:52 GMT

Companies continue to use discriminatory pay systems. Census figures released yesterday confirm that blacks and Hispanics continue to be paid less than whites for higher-paying jobs – and that the differentials are larger than they have been in a decade. Census income reports show:

• Blacks with four year college degrees earned $46,502, or about 78 percent of what comparably educated whites earned;

This is the largest pay disparity between professional blacks and whites since 2001, when the differential was 77%. By 2005, the differential had fallen to 83% but has increased since that time.

• Hispanics with bachelor’s degrees had an average salary of $44,696, or about 75% of what similarly educated whites earned.

Hispanics had closed the gap to 87% in 2000, but the trend seen with a widening gap also affected this group.

The gender pay gap is even greater: women with at least a bachelor’s degree earned an average salary of $43,127, about 60% the amount earned by comparably educated men.

It remains to be seen if the legislation aimed at correcting such pay disparities, the Lilly Ledbetter Fair Pay Act which was signed into law earlier this year, will decrease the disparities and bring about more pay equity. This law relaxes that time in which claims may be brought – discriminatory wage systems on race or gender may be preserved with a filing with the EEOC within 180 days of the last discriminatory pay check received (or within 300 days in Virginia and other states with “state deferral agencies”). Check with your local EEOC office to see which date applies to you).

For more information on the Lilly Ledbetter Fair Pay Act, see my earlier blogs on this important legislation on this site.

Originally posted at InjuryBoard by Harris Butler

Overtime Claims to be Emphasized by Obama Administration

Harris Butler — Sat, 25 Apr 2009 10:00:00 GMT

In two recent articles, the Wall Street Journal reports that businesses are fearing a crackdown by the Obama administration on workplace practices. The Department of Labor will hire 150 new investigators to enforce wage and child labor laws and an additional 100 investigators in its Wage and Hour Division (WHD) to address unpaid overtime and minimum wages under the Fair Labor Standards Act (FLSA). Those of us working to enforce the Wage and Hour laws knew that DOL had not actively enforced these laws during the Bush administration and recent hearings by the Government Accountability Office support this conclusion. Testimony provided in the hearing shows that complaints have not been promptly or adequately investigated by the WHD. Labor Secretary Solis has committed to ending this form of wage theft.

As everyone struggles through this economy, employees are finding that they are being asked to do more for less. Hours are increased and employers are cutting corners to save money. With the Administration and the courts more vigilant of employers who illegally cut corners which affect employees’ earned wages, employees should rest assured that the nation’s laws prohibiting unpaid overtime will be enforced.

Originally posted at InjuryBoard by Harris Butler

Gender Wage Claim Allowed for Failure to Grant Tenure

Harris Butler — Thu, 23 Apr 2009 15:59:02 GMT

A U.S. District Court ruled that a Jackson State University professor’s gender discrimination claim that she was denied tenure is timely under the recently enacted Lilly Ledbetter Fair Pay Act. This law extends the time to preserve a claim with an EEOC filing time to 180 days (300 days in states such as Virginia which have state deferral agencies) after the last paycheck including the discriminatory pay. Under the old rule (before the Ledbetter Fair Pay Act’s enactment), the professor’s claim would have been untimely unless brought within 180 days (300 in Viriginia) after the first discriminatory paycheck after being denied tenure.

This appears to be the first court applying the law to gender based pay differentials resulting from a denial of a promotion or, here, tenure. The professor, LaVerne Gentry, alleged that she was purportedly denied tenure because she had was not published, but that male professors who had not been published had received tenure and were promoted.

The Ledbetter Fair Pay Act clearly applies to discriminatory pay differentials and removes the argument that many employers had used to avoid such claims – that they were not brought within a short time after the first discriminatory check was issued. More often than not, employees who were paid less than men were not told this. The language of the Act allows challenges to gender based pay differences irrespective of when the decision was made to pay women less or when the first discriminatory check was received.

Originally posted at InjuryBoard by Harris Butler

Supreme Court Issues Ruling on Arbitration That Is Beneficial to Employees and Consumers

Bill Tucker — Wed, 11 Mar 2009 13:27:52 GMT

The Supreme Court of the United States recently issued a ruling that will likely prove helpful to employees and consumers when their employers or lenders seek to prohibit their access to court. Employers and consumer lenders, including credit card companies, have increasingly sought to preclude employees and consumers from bringing claims in court by including arbitration agreements in their contracts.

In Vaden v. Discover Bank, the Supreme Court ruled that a lender could not compel a consumer to arbitrate claims that were brought as counterclaims in state court. The lender had filed a state court suit against the consumer seeking to recover past-due charges, and the consumer responded by filing counterclaims based on federal law. The Supreme Court reversed the rulings of the trial court and the Fourth Circuit Court of Appeals, both of which ordered arbitration, and held that the case could not be compelled to arbitration unless the entire case was subject to federal jurisdiction. Because the lender’s claims were based on state law, and filed in state court, the claim could not be compelled to arbitration in federal court under the Federal Arbitration Act.

There are many shortfalls to arbitration provisions that are contained in form contracts that are offered on a take-it-or-leave-it basis. These provisions, which are frequently hidden in small type and written in language that is not easily understood, require the employee or consumer to submit the claim to a private arbitrator rather than a jury of their peers. Private arbitration costs consumers considerably more than the judicial system, and the rules typically allow less opportunity for the employee or consumer to discover evidence that will prove their claim. In addition, the provisions sometimes seek to allow the employer or lender to bring claims in court, while requiring the employee or consumer to waive their right to do so. Courts have refused to compel arbitration in cases where the terms are not mutual, the provisions are unfair, or the costs of arbitration are significant.

Originally posted at InjuryBoard by Bill Tucker

What is the Lilly Ledbetter Fair Pay Act?

Michael Phelan — Mon, 26 Jan 2009 14:47:36 GMT

On Thursday, January 22nd, the U.S. Senate passed S. 181, the Lilly Ledbetter Fair Pay Act. Swift action is expected in the House to pass the bill and present it to President Obama, who is expected to sign it into law. The effect of the new law will be to restore the 'paycheck accrual rule,' making every instance of pay discrimination, every paycheck, actionable discrimination. For a detailed analysis fo the Act, please read Lilly Ledbetter Fair Pay Act Passes Senate!, an excellent blog by my partner, Harris Butler.

Originally posted at InjuryBoard by Michael Phelan