Monday, November 24, 2008

Expected Legislative Changes in Employment Law

Is it right to say that we lack laws when a situation does not favor us? Or do we simply lack implementation of existing laws that we feel the need to enact some more?

Whatever we say about new laws, we are about to see some major changes in the coming days as more legislative acts are expected to bring these changes to the present employment laws.

Some of these laws are mentioned in the article “More Political Predictions”, which was posted on October 31, 2008. According to the article, the next Congress is about to pass into law a set of employment laws that will eventually affect both employers and employees.

Among these laws, I believe three of them bear significance to of employees in relation to the present employment conditions.

For one, the proposed Employment Non-Discrimination Act is expected to complement the ADA and other state anti-discriminatory laws but will deal with the issue of sexual orientation and the more controversial, sexual identity.

Another law that will have impact on the workers and employees is the Arbitration Fairness Act, which would “ban requiring an employee to agree to resolve employment related claims by arbitration as a condition of employment”.

I believe this act will help improve the employees’ conditions, as it will eliminate binding arbitration as a means to avoid jury trials in many employment cases.

The Protecting America's Workers Act, another employment law that is deemed important, is expected to toughen Occupational Safety and Health Administration's whistleblower provisions. The law also increases the penalties, both civil and criminal, and expands the coverage to the public sector.

Now, the question on whether these proposed bills will be enacted into law or not will depend much on the next Congress who can be expected to take into consideration the present economic crisis, its impact on federal, state and local governments and the cost on employers when changes are finally implemented.

Workweek and Minimum Wage Compliance Definitions

Employers should be aware of what constitutes a workweek and minimum wage compliance as provided under the Fair Labor Standards Act (FSLA).

Workweek under the FSLA is defined as the “fixed and recurring period of 168 hours -seven consecutive 24-hour periods”. It may begin on any day and hour of the week and need not correspond with the calendar week.

Knowing the workweek is essential because it determines minimum wage compliance. Any time beyond the 168 hours shall be considered overtime hence, compensable.

Minimum wage compliance is an order that sets the minimum amount an employee should be paid in an hour.

Employees should receive compensation as set by the law. Any amount received by the latter below such standards would make the employer liable.

Guidelines on workweek and minimum wage compliance are vital. Employers would not have any reasons for not complying as they are mapped out by the law. Hence, liability may easily be pointed at the employer.

Employees should know their rights under the law. Various laws are enacted to protect their well-being. They just have to be vigilant and sue to vindicate their rights.

Non-Resident Employees are also Covered by California Wage Laws

The case of Sullivan v. Oracle Corporation and Oracle University, filed on 6 November 2008 and decided by the United States Court of Appeals, resolved that non-residents of California are under the coverage of the California Labor Laws for works performed within the state.

In this case, it appears that the plaintiffs were instructors who go to different states to train customers on the use of Oracle software. In California, the plaintiffs worked between nearly five and 30 days per year – the rest they work on other states.

On their complaint for overtime claims, among others, the instructors alleged that the respondent, Oracle, misclassified them into exempt employees and failed to pay them overtime, daily and/or weekly.

The Court said that the California wage and hour laws, including payment of overtime, apply to the plaintiffs during the days they worked in the state.

In California, overtime law mandates that employees who are not otherwise included in the list above, 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, are entitled to overtime pay.

Meaning, they shall not be required to work beyond 8 hours in any workday or beyond 40 hours in any workweek unless they receive one and one-half times their regular rate of pay for all hours worked over eight hours in any workday and over forty hours in the workweek.

Bicycle & Pedestrian Accidents on the Rise

The streets of San Francisco have seen the rise in the number of motorcycle and bicycles not only due to continuing rise of fuel prices and worsening economy, but in an effort to lessen the pollution and cleanse the air.

But corollary to that is the rise in pedestrian and bicycle accident which reported to have doubled since the last year. Authorities said that this does not mean that roads have become more dangerous but merely because of the increasing number of bicycles and motorcycle these days.

In 2006, vehicular accident fatalities in the US totaled to 42,642. Out of that number, pedestrian accident kills a staggering number of 4,784 individuals while nearly 70,000 pedestrians are injured.

Statistics show that at least 1 pedestrian gets killed in a traffic accident every 110 minutes, or so.

More and more people use motorcycle and bicycles to reduce the continuing micro economic burden that increasing fuel prices brought to American families.

In the State of California alone, the number of motorcycle licenses has reportedly increased – from 908,000 in 2002, the figure reached a staggering more than a million this year.

But as they say, everything has a price. As mentioned, due to increasing use of motorcycles and bicycles, the accidents in the streets involving them has exponentially increased as well. Cases of pedestrian accidents have noticeably increased too.

Pedestrian accidents are covered by tort laws which make negligent person liable for injury, damage or death of a pedestrian. Compensation may include medical bills, lost wages and property damages, as well as compensation for pain and suffering.

Tuesday, November 18, 2008

Equal Treatment to Pregnant Women

Women composed nearly half of the workforce today. When they become pregnant, they have the right to apply, be hired and continue working just like any body else. In fact, about 80% of American women become mothers.

The pregnancy discrimination act was enacted to safeguard the rights of pregnant women. It amended Title VII of the Civil Rights Act of 1964.

The Act prohibits employers from employing discriminatory practices against women workers because of pregnancy, childbirth or related medical conditions.

However, problems continue to exist and to my surprise pregnancy discrimination comes from female dominated industries such as finance, real estate, retail services and insurance.

The law does not require employers to grant special treatment to pregnant women. It only requires that they be treated the same as that of other employees. Hence, if the employers give accommodation to non-pregnant employees, the same accommodation should also be granted to them.

Nevertheless, any favorable treatment by employers to pregnant women is not prohibited. The law only requires employers to make good their obligations under the Act.

When You are Discriminated against due to Obesity

Albeit there is no law specifically outlawing it, it is still illegal to discriminate against an employee or a job applicant on the basis of his/her weight - or to put it bluntly, if such an individual is over-weight or obese.

It is common today for people suffering from obesity to be fired from work or not hired by a prospective employer because of this condition. Although it is not covered by the Civil Rights Act as a protected category as regards discrimination, such is illegal under ADA.

ADA provides protection for people with recognized medical disabilities.

You might be considered as clinically obese under certain conditions and your employer may not discriminate against you by firing, not hiring or demoting you from your current position because of your condition.

If you are suffering form this condition and you feel you were discriminated against in the job, consult and seek the assistance of an attorney specializing in discrimination lawsuits.

Employment discrimination attorney will be able to help you exercise your rights under the law.

Friday, November 14, 2008

Records to Keep in compliance with FMLA

Employers are required by law to maintain records for safekeeping. No less than the Family Medical Leave Act (FMLA) imposes this responsibility upon them. These records must be preserved for at least three years and be open for any inspection by the Department of Labor representatives.

Covered employer must keep accurate records for each eligible employee. These records need not be in a certain format so long as it includes certain identifying information concerning the employee and data regarding hours worked and wages earned.

The Act requires employers to keep records of the following information:

• Basic payroll information and identifying employee data such as name, address and occupation and terms and conditions of employment

• Dates FMLA leave is taken by the eligible employees which may be taken from the latter’s time record or requests for leave

• Hours of leave if taken less than one full day

• Copies of notices of leave and copies of all general and specific
written notices given to employees as required under FMLA

• Any documents concerning employee benefits or employer policies and practices on paid and unpaid leaves

• Premium payments of employee benefits

• account of any dispute between the employer and an eligible
employee regarding designation of leave as FMLA leave reasons for designation.

GPS: Protection from False Overtime Claims?

Proving exactly how many overtime hours an employee has worked is difficult in many overtime cases. And this becomes even more complicated when an employer’s time or pay records are inaccurate.

When this happens, an employee has the burden to prove or satisfy his claim by offering a so-called “convincing substitute” or evidence “sufficient to permit a just and reasonable inference” regarding an employee’s overtime claim.

Now modern technology has something to offer to help both employers and employees resolve a dispute on overtime claims. The article, “Can GPS Help Prove Your Wage Case”, posted on October 31, 2008, gives an insightful look at how the use of a geopositioning (GPS) device can help people in many ways, including proving overtime claims.

In overtime claims, the stronger the inferences one can draw of his time estimates, the more detailed and reliable the evidence should be. And the use of GPS, which most mobile phones have been equipped with, can improve monitoring of employees and help better calculate wage and hour abuses. In a way, an employee’s GPS-enabled cell phone can help him prove his claim too.

However, under California wage and overtime law, some employees remain exempt from overtime claims as enumerated:

• workers covered by collective bargaining agreements (CBA)

• professional, executive and administrative employees

• state and government workers

• taxi cab drivers and outdoor salespersons

• airline employees working more than 40 but less than 60 hours per week on a temporary basis and per their own request

• adult employees whose earnings are more than 50 percent commission, if their total earnings exceed more than one and one half times the minimum wage

• some computer software employees

• commercial fisherman and boat crews, sheepherders and irrigators

• in-home babysitters, student nurses and personal attendants

• parents, spouses or children of the business owner

• professional actors and motion picture projectionists

• carnival ride operators at traveling carnivals

Wednesday, November 5, 2008

Between Winning and Losing in an Auto Accident Claim

Recovering for damages in an auto accident requires more than having an injury to show and having someone to account for it as the offending party (defendant).

Take the case involving Keanu Reeves and Alison Silva as mentioned in the article, “Keanu Reeves Wins Lawsuit Filed by Paparazzo Alison Silva”, posted on November 3, 2008.

According to the article, the lawsuit arose from an auto accident where Reeves, who was driving his car, had allegedly struck Silva, resulting in permanent damage to his wrist as he claimed.

However, in the hearing that lasted five days, the jury who heard all the testimony of witnesses, including a video, decided in favor of Reeves, turning down Silva’s claim of $ 711, 974, to cover for medical expenses and compensation for lost wages.

There is no surefire way to win in an auto accident claim but one can surely increase his chances of obtaining a successful claim. Winning a claim depends on a case-to-case basis, meaning the verdict in a case will depend on the issues raised and its merits.

To increase one’s chances in obtaining full compensation in an accident, it is necessary to have evidence of the accident and your injuries well documented, including accident reports and the medical findings.

In addition, hiring a personal injury lawyer who specializes in auto accidents may also improve one’s chances of getting a rightful claim.