Ex-UPS Worker's Pregnancy Discrimination Case Is Going To The Supreme Court

December 2, 2014 by Jim Higgins

This case has been winding its way through he courts for eight (8) years. It may have a significant impact on the rights of pregnant workers. Considering almost half of our labor force are women and over 40% are the bread winners in the family this case is important to so many families.

According to this case, Peggy Young, a former employee of the United Parcel Service or UPS, was pregnant with her daughter when UPS informed her that she could not be given a temporary assignment in order to avoid lifting heavy packages as ordered by her doctor. UPS had employed Young as a part-time driver who was to deliver overnight letters by 8:30 am. This job requires drivers to be able to lift up to seventy pounds. She was informed by her doctor not to lift more than twenty pounds. She stated that, "They told me basically to go home and come back when I was no longer pregnant.” She filed a lawsuit against the Atlanta based company for discriminating against pregnant women.

Young’s lawsuit is about the Pregnancy Discrimination Act, which was passed by Congress in 1978 to include discrimination against pregnant women as a violation of the 1964 Civil Rights Act. Congress stated that workplace rules that excluded pregnant workers from disability benefits and insurance coverage did not amount to sex discrimination under the landmark civil rights law. Young’s lawsuit is to determine if UPS violated the law through its own policies that provide temporary light work jobs only to employees with on the job injuries that have a disability under federal law or to those employees that have lost their federal driver certification.
UPS spokeswoman Kara Gerhardt Ross said the law is on the company's side. "UPS did not intentionally discriminate," Ross said. UPS also noted in their court filings that the Postal Service is an independent agency that receives no tax dollars but is subject to congressional control has similar policies when it comes to pregnant employees. The Postal Service did not comment.

Young argued that because UPS made accommodations for non pregnant employees with work restrictions, it should have done the same for her. The lower courts dismissed the suit, agreeing that Young did not prove UPS discriminated against her because of her pregnancy. The justices agreed in July to review the case. Young stated that, “I am fighting for my two daughters and I'm fighting for women who want to start a family and provide for the family at the same time."

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EEOC Sues Restaurant for Pregnancy Discrimination

November 17, 2014 by Jim Higgins

Tennessee employees and employees all across the United States are entitled to certain rights when applying for, interviewing and getting hired to perform a job. These rights include that a company or organization is not allowed by law to discriminate against employees because of race, gender, disability, sexual orientation or pregnancy. Unfortunately however, these types of discrimination occur all too often in the workplace. If you or someone you know has been rejected or fired from a job because of any type of discrimination, then you should speak with a Tennessee employment discrimination lawyer as soon as possible. They will review your case and make sure that you receive the compensation you deserve for the violation of your rights.

According to this lawsuit filed by the U.S. Equal Employment Opportunity Commission against the Crooked Investment Company doing business as Crooked Creek & Creekside Bar & Grille the job applicant had previous experience working in a restaurant. She applied for an available food server position in February of 2013. Her first interview with the Crooked Creek Company went well and she was asked to come back for a second interview. During the second interview, she told the company that she was pregnant. When this information was revealed, the Crooked Creek Company refused to consider her for the job.

If a company refuses to hire someone for a job because they are pregnant, this is a violation of the Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The Equal Employment Opportunity Commission first tried to settle this case through its pre-litigation process. When that failed to work the EEOC filed a lawsuit against the company. The lawsuit is seeking back pay, compensatory and punitive damages on behalf of the applicant and they are also seeking injunctive relief to help prevent any other cases of pregnancy discrimination occurring.

According to a statement by the EEOC’s trial attorney, "Women should not be forced to remove themselves from the labor market simply because they are pregnant.” “The EEOC will vigorously enforce a pregnant woman's right to be fairly considered for a job." The EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

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Publix Super Markets Inc. to pay $6.8 million to job applicants

November 4, 2014 by Jim Higgins

This lawsuit which is being processed in a Tennessee federal court claims that the Lakeland-based Publix Super Markets violated the Fair Credit Reporting Act by not making legally required disclosures about background checks to job applicants. Publix has denied that they did anything wrong and was not found to be liable in court but have agreed to a settlement because of the huge cost of litigation and the cost of disruptions to their business.

The main plaintiff in the case, Erin Knights, applied for a job at Publix in 2013 through an electronic kiosk at a store in Tennessee. The lawsuit states that Publix’s application process included an authorization for a background check but it violated the Fair Credit Reporting Act rule that requires companies that are receiving a consumer report for employment to notify the potential employee a document containing only the disclosure. The lawsuit states that, “disclosure requirements are important because they enable consumers to control and correct the information that is being disseminated about them by third parties."

The lawsuit also alleges that Publix included language in their job application that would lead to certain applications waiving specific legal rights concerning the background checks.

The settlement class totals 90,633 people who would receive roughly $48 each after lawyers' expenses. The settlement includes people who applied for work at Publix and were subjected to background checks during the period March 12, 2012, to May 13, 2014. Publix has stated that it has made changes to its applications about the background checks. A Publix spokesman declined to discuss the case.

When we apply for jobs it is easy to believe that all the forms we are completing are legitimate. Also, it can be difficult to question the forms because we want to please our prospective employers. Who wants to be someone as a “troublemaker”? It seems that it is just this position of power the employers often abuse. Fortunately, we have some laws in place that level the playing field. The Fair Credit Reporting Act is a great example of just such a law. A law that was put in place to protect all of our citizens against corporations that may abuse that information.

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Is Refusal to Provide Light Duty Work a Violation of the Pregnancy Discrimination Act?

October 16, 2014 by Jim Higgins

By Anne Hunter Williams

If you are pregnant and you have asked your employer for light duty work, and the employer refuses, has the employer violated the law? Most likely. In most situations, an employer must provide light duty work to a pregnant employee if light duty jobs are available. Here are a few examples:

Scenario A: Annette requests light duty because of her pregnancy. Her supervisor is aware that she is pregnant and knows that there are light duty positions available that she could perform. Nevertheless, her supervisor denies her request, telling Annette that having a pregnant worker in the workplace is just too much of a liability for the company.

Result: This is a violation of the Pregnancy Discrimination Act (PDA). Because the employer made derogatory comments about her pregnancy, she doesn’t need to produce evidence it is not necessary for Annette to produce any evidence that other workers who weren’t pregnant received light duty.

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Most Common Overtime Pay Myths

September 4, 2014 by Jim Higgins

The amount of overtime pay violations occurring in this country is staggering. In our office we refer to these cases as "wage theft" cases. In other words, they involve people that have worked hard for their employer yet they are cheated out of wages that they have earned. This can come in the form of working the employee off the clock or failing to pay the employee overtime wages for working over 40 hours per week. Recently, I was interviewed about common overtime myths that we see in our office. You can watch the interview below:

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Tennessee’s New Employee Online Privacy Act of 2014

August 4, 2014 by Jim Higgins

Do you ever worry that what you say, or post, online might haunt you at work? Recently some employers have requested that new, or even current, employees divulge which online community to which they belong and provide login information and passwords. Can they do that?
Tennessee recently passed the Employee Online Privacy Act of 2014 (Online Privacy Act) which will prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. This law will go into effect in January 2015.
The Online Privacy Act prohibits an employer from:
• Requesting or requiring an employee or applicant to disclose a password that allows access to a personal internet account;
• Compelling an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal internet account;
• Compelling an employee or applicant to access a personal internet account in the presence of the employer in a manner that enables the employer to observe the contents of the personal internet account; or
• Discharging, failing to hire, or taking adverse action or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.
There are, of course, some exceptions. Among other exceptions, an employer is allowed to:
• Discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
• Conduct an investigation or require an employee to cooperate in an investigation if there is specific information on the employee’s personal internet account regarding compliance with applicable laws or prohibitions against work related employee misconduct, or the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
• View, access or use information about an employee or applicant that is available in the public domain.
• Conduct an investigation or require an employee to cooperate in an investigation regarding compliance with applicable law or prohibitions against work related employee misconduct, or an investigation about the unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
Individuals whose rights are violated under this law may sue the employer and recover up to $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.

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What Does it Mean if Your Case is Chosen for Mediation at the EEOC

July 28, 2014 by Jim Higgins

The Equal Employment Opportunity Commission (EEOC) is the federal agency that administers many federal discrimination laws. After you file a Charge of Discrimination with the EEOC, they will ask you if you want to mediate your dispute with the employer. What should you do?

What is Mediation?

Mediation is an informal, confidential process for resolving disputes by using an impartial third-party (the mediator) who meets with the employer and employee. The mediator has no decision-making authority, but rather tries to assist the parties to resolve their dispute. Often, mediation is a great way to preserve or build a better working or parting relationship.
Neither party to a dispute is required to participate in mediation, or to agree to a resolution. Mediation typically includes an opening session, followed by a joint meeting of the parties, allowing both parties to explain their point of view. Then the parties usually go into separate rooms and meet privately with the mediator. Through the mediator the parties attempt to reach an agreement. When an agreement is reached, usually it is memorialized in an enforceable, written document signed by both parties.

Do I need an Attorney?

Each party may have an attorney, friend, relative, or other support person present at the mediation. Having an attorney present will help you make sure that your rights are protected. An attorney can also offer options and solutions that you may not have considered on your own. The attorneys at The Higgins Firm have represented clients and numerous EEOC mediations and are adept at protecting client rights while obtaining a positive resolution for them.

What if We Do Not Resolve Our Case?

If you are not able to reach resolution through mediation, then you may still pursue any legal claims or defenses you have preserved. That means that there is very little downside to participating in a mediation. You can try to resolve your case at mediation, and if you can’t come to an agreement, you can continue with your case.

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Computer Professional Exemption and Overtime

July 11, 2014 by Jon Street

Overtime- Am I Exempt? The Computer Professional Exemption

Under the Fair Labor Standards Act (FLSA) employees are presumed entitled to overtime pay. That is, employees are entitled to receive one and one half their regular rate of pay for every hour worked over 40 in each workweek. This is true whether or not the employee is “salaried”.

There are however certain exemptions to the overtime law. These exemptions are based on the particular job duties of the employee not on whether or not the employee is paid hourly or is salaried. Courts routinely hold these exemptions are to be construed liberally in favor of the employee in determining whether an employee is in fact exempt from overtime pay.

One of these exemptions is the “computer professional” exemption.

In order for an employer to classify an employee exempt as a “computer professional”; the employee must meet both a compensation and job duties test.

The compensation test

In order to meet the compensation test, the employer must be able to show that the employee either received:

1. A minimum of $455.00 per week if salaried OR
2. A pay rate of $27.63 per hour if paid hourly

If an employee does not receive these minimum amounts in pay; then the exemption will not apply.

The job duties test

In order to meet the job duties test, an employer must show the employee is a “computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” whose primary duty involves:

1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; [or]

3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems;

The term “primary duty” under the FLSA means the employee's "principal, main, major or most important duty." 29 C.F.R. § 541.700

Note that the actual job title of the employee does not determine if the job duties test has been satisfied; it is the actual job duties listed above that will determine if the employee is in fact exempt from the overtime requirements of the FLSA. Just because an employee works in “I.T.” does not mean they are exempt.

For the computer professional exemption to apply, an employee's primary duty must require 'theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering' not merely 'highly-specialized knowledge of computers and software.’ Chicca v. St. Lukes Episcopal Health Sys., 858 F. Supp. 2d 777, 784 (S.D. Tex. 2012)

Factors considered by the courts in determining whether an employee fit the exemption include, but are not limited to:

• the volume of data and the number of users the employee supports;
• the type and complexity of the problems handled by the employe;
• the layers of assistance below the employee to handle lower-level or simple problems, including whether there was a helpdesk below the employee to handle routine issues;
• the skill level of the employee, including certifications held, and the relevance and importance of those skills and certifications in the execution of the job;
• the level of initiative or creativity used in the execution of their job;
• the priority of the employee's work relative to the overall work of the company.

Sethi v. Narod, 2013 U.S. Dist. LEXIS 141485, 42-43 (E.D.N.Y. Sept. 30, 2013)

The sixth circuit has held an employee will NOT be exempt if they do not engage in computer programming, software engineering, or perform systems analysis. “These job duties involve making actual, analytical decisions about how a computer network should function. Installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and troubleshooting problems are not job duties which would fall under the exemption as they are all performed to predetermined specifications in a system design created by others.” Martin v. Ind. Mich. Power Co., 381 F.3d 574, 580 (6th Cir. Mich. 2004)

Other courts have followed the lead of the sixth circuit in this approach. (Systems analysis involves making actual, analytical decisions about how a computer network should function." Karna v. BP Corp. N. Am., 2013 U.S. Dist. LEXIS 37517, 50 (S.D. Tex. Mar. 19, 2013)) (The mere fact an employee performs some tasks considered "consulting," "analysis," or "testing" relating to computers does not mean they fall within the ambit of a provision designed to exempt computer programmers, network designers, and software developers. Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006))

There is undoubtedly a relatively small amount of case law interpreting the “computer professional” exemption; however it is clear one of the most important factors to consider is whether an employee is performing “help desk” or support type of job duties or actually performing work programming, developing software, or designing/creating computer networks.

There is no doubt however, each case will require a detailed look into the particular job duties the employee actually performed in determining whether the exemption applies.


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Overtime- Am I Exempt? The Computer Professional Exemption

June 17, 2014 by Jon Street

Under the Fair Labor Standards Act (FLSA) employees are presumed entitled to overtime pay. That is, employees are entitled to receive one and one half their regular rate of pay for every hour worked over 40 in each workweek. This is true whether or not the employee is “salaried”.

There are however certain exemptions to the overtime law. These exemptions are based on the particular job duties of the employee; not on whether or not the employee is paid hourly or is salaried. Courts routinely hold these exemptions are to be construed liberally in favor of the employee in determining whether an employee is in fact exempt from overtime pay.

One of these exemptions is the “computer professional” exemption.

In order for an employer to classify an employee exempt as a “computer professional”; the employee must meet both a compensation and job duties test.

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Tennessee Is an At Will Employment State. So what does that mean?

May 8, 2014 by Jim Higgins

Most people know that Tennessee is a "right to work" or "at will" employment state. However, I am not certain that people always know what that means. In the most basic sense it means that an employee can be fired for a good reason, bad reason or no reason. On that same page, an employee can quit for a good reason, bad reason or no reason. However, that doesn't mean that there aren't protections under Federal and Tennessee Employment Laws. It is still illegalt to fire someone for a protected reason such as race, gender, disability, pregnancy, etc. I was recently interviewed on this topic and you can watch it below:

https://www.youtube.com/watch?v=w0DCQq56wdY&list=UU9MLYRK1mnikglrDHEvNxSA&feature=player_detailpage

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Equal Pay for Equal Work … Seems Fair, Right?

April 14, 2014 by Jim Higgins

On Wednesday, April 16, 2014, Senate Republicans blocked—for the third time—the Paycheck Fairness Act, a bill proposing to close the pay gap between men and women. The goal of the bill—the attainment of equal pay for equal work—seems like a no-brainer, right? Women with the same job, and same qualifications, as men deserve to be paid the same. They should not discriminated against because of gender. It just seems obvious. However, not a single Republican Senator voted in favor of the Act. So right now the status quo continues, which yields women making about 77cents for every dollar men make.

Had it passed, the bill would have made it illegal for employers to retaliate against a worker who inquires about or discloses her or his wages or the wages of another employee in a complaint or investigation. And as part of this bill, the Equal Employment Opportunity Commission would be required to collect pay information from employers.
What’s a girl to do??

Even though the Paycheck Fairness Act has stalled for now, there are still ways a woman who is underpaid for the same work a man is doing can prevail. The Equal Pay Act, enacted in 1963, provides a remedy for gender-based pay inequities. Also, women can bring a case for pay inequality as part of a gender discrimination

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Genetic Information Discrimination

February 27, 2014 by Ryan Simmons

While it sounds like something that would be an issue in a science-fiction, futuristic movie, cases involving discrimination due to genetic information are popping up across the country.

On May 21, 2008 the President signed in to law the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA. The law was written in order to protect Americans from being treated unfairly because of differences in their DNA that may affect their health. GINA prevents discrimination from both health insurers and employers.

The passing of GINA was important for everyone. Every person has numerous DNA differences that could increase or decrease their chance of getting a disease such as diabetes, cancer or heart disease. The research in DNA health can be used to help treat people. However, it can also be used to discriminate against people as well.

Recently, one of the first Genetic Information Act lawsuits was settled against a nursing home in New York. The nursing home would ask employees about their family medical history as part of its post-offer, pre-employment medical exam of all applicants. This kind of information request is illegal under GINA. The EEOC sued the nursing home on behalf of 138 individuals who had been asked for their genetic information and the nursing home settled for $110,400 to be payable to all of the individuals.

As cases have started popping up around the US based on genetic discrimination, people are starting to better understand the rights that are protected under GINA. People can have genetic tests done which could benefit their health while sleeping soundly knowing that the feedback provided by the tests is safely secure and unable to be used against them.

While this is still a relatively new law, both health insurers and employers do fall under the guidelines, as of 2009. However, the law as it is currently written does not cover life insurance, disability insurance or long-term health insurance.

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