Is it Really Illegal to Join a Union in Alabama?

Alabama is considered a Right to Work state. There is a lot of misinformation and confusion surrounding what this actually means. Some people tend to think that if you live in a “right-to-work” state like Alabama, this means you cannot be part of a union. Likewise, some believe that they will be arrested if they join a union. Fortunately, this is not really the case. To explain a bit, consider how unions work and how Alabama law treats them.

What is a Union?

A union is nothing more than a collection of employees who gather and create a master contract among and between themselves, which allows them to bargain together as a group for better wages, treatment, benefits, and other worker rights. This is what we know as “collective bargaining.” The theory is that workers alone have very little power to negotiate with their employers, who are generally large multi-million-dollar organizations. Together, workers have real power.

What is “Right-to-Work?”

This is a political term, not a legal one. In so-called “right-to-work” states, workers cannot be forced to join a union as a precondition of employment or to keep their jobs. This has long been the law of the land in Alabama. However, it does not in any way prevent a person from voluntarily joining a union. In fact, about 11% of the state’s workforce are in unions, according to the Alabama Department of Labor.

States that do not have “right-to-work” laws allow certain types of trades and professions to have union shops, meaning those employers can make union membership a condition of employment. If you want to work for a union pipefitter operation in a union state, then you will have to agree to pay union dues. There are pros and cons to this arrangement, but in general, unions with mandatory membership are much stronger, as everyone contributes, and everyone is protected. In states like Alabama, unions are much weaker in terms of bargaining power and funding.

Alabama’s Constitutional Amendment on Unions

It was not enough for Alabama lawmakers to already have laws on the books that bar mandatory membership in unions. In 2016, Amendment 8 passed by an almost 70% vote, thus amending the state’s constitution to include a specific provision called “Right-to-Work.” You can read the whole Constitutional Amendment 913 and see how it prevents unions from requiring membership. However, nothing in this amendment says a person is committing a crime by choosing to join a union and such a provision would be unconstitutional under the United States Constitution.

Federal Worker Protections Preempt State Law

Thankfully, although Alabama laws are not worker-friendly, federal laws preempt or supersede state laws in many ways. The National Labor Relations Board (NLRB) protects the rights of workers to organize; however, this is not a universal principle. Some jobs and industries may be exempt from federal preemption, such as state workers.

Workplace Discrimination and Labor Disputes

If you are facing a dispute with your employer, you need an attorney who understands both state and federal laws that protect workers in Alabama. Call the dedicated employment lawyers of Fonteneau & Arnold, LLC today to get real answers to your toughest labor law questions.

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The Ugly Truth About Workplace Discrimination Against Veterans

It may seem unthinkable that an employer would single out a veteran or service member for discrimination at work, but it happens quite a lot. Whether it is a general misunderstanding about the military, an outright negativity toward those who serve, or more subtle discrimination, such as a desire to avoid prolonged absences for deployments or other obligations, there are employers who actually try to avoid hiring veterans and service members. For some, it is an irrational fear that veterans will not be stable mentally or successful in terms of career productivity.

The ugly truth about veteran discrimination is that it can be easy to spot, yet hard to prove. Fortunately, employment discrimination lawyers may be able to help in some situations.

Common Reasons for Employers Discriminating Against Veterans

 

While there are sadly those who may just have a pure disdain for the military, the vast majority of veteran discrimination cases are not so obvious. Here are some of the most common types of unlawful discrimination against veterans and military service members:

Ignoring Veterans’ Preference Laws

 

Under Alabama law, all private employers are “authorized” to create and follow a veterans’ preference hiring policy. This means that private employers are allowed to apply a preference in favor of veterans, but they are not required to do so. Public employers, however, are required to give veterans extra points in the hiring process. Section 36-26-15(b) of the Alabama Code even extends these rights to wives of some severely disabled or deceased veterans. Federal law also requires special hiring authorities for some veterans.

 

Refusing to Hire or Retain Reservists and Guard Members

Those currently serving in the Reserves or Guard have additional protections under both Alabama law and federal law. You are entitled to a leave of absence, but there are several key rules that apply to also protect employers in the event of an extended long-term deployment. Some employers choose to unlawfully discriminate in hiring to “avoid the trouble.” Some employers will also try to convince reservists to quit when they are activated, sometimes finding creative ways to force the employee to leave employment, rather than keeping the job open.

 

Presumption of PTSD or Mental Health Problems

USA Today reports that many employers have unfair, biased views of veterans, assuming that they all suffer from mental health issues or that post-traumatic stress disorder (PTSD) will cause them to be a liability in the workforce. While this stereotyping may be completely offensive, it does happen. Veterans should be mindful of warning signs of discrimination in the workplace.

 

Presumption of Physical Disability

Since many veterans returning from combat service may have suffered physical injuries during their service, some employers may come to the generalized conclusion that “most” or “all” veterans are broken (mentally or physically). Rather than seeing veterans as resilient, highly-skilled, and dedicated employees who add value, these employers may see veterans as a liability risk or more likely to file a claim for injuries. All are unsupported by evidence. Of course, that’s the nature of discrimination – it is an employment practice that focuses on factors that have nothing to do with ability or skill.

Veteran Discrimination in Your Workplace?

 

If you are a veteran who is suffering discrimination because of your status as a veteran, you may have options. Do not let someone trample on your rights. You have worked hard to build your career, and you deserve to continue building on your hard work. Contact the attorneys of Fonteneau & Arnold, LLC. With over 20 years of combined experience representing employees in labor and discrimination disputes, we understand what it takes to fight discrimination. Do not just worry about your situation; call us to get real advice today.

Am I Exempt From Time and a Half?

There are a lot of different ways that an employer can pay an employee. Some workers receive a weekly paycheck, some are paid by the hour, and others have a set annual salary, which is broken into bi-weekly payments. The variations are pretty much unlimited. However, federal law still requires that workers be properly compensated for the time they work, regardless of how they are paid. Under the Fair Labor Standards Act (FLSA), employers are required to pay minimum wage and overtime pay for their employees. Not all employers or employees are eligible for these protections.

What is Time and a Half?

 

Time and a half is often misunderstood, but it is pretty simple. Your employer is supposed to pay overtime for any hours worked in excess of 40 hours within any seven-day period. It does not matter if work is at night, on the weekend, or you work a holiday. Just count any seven-day period, and if your hours exceeded 40, there should be overtime pay for the excess hours. Obviously, there are plenty of exceptions and nuances to this, but that is the general rule. Overtime should be paid at 1.5 times your regular wage.

 

Is My Employer Exempt?

 

As a federal law, FLSA applies to employers who engage in interstate commerce with at least $500,000 in annual business. Interstate commerce is a tricky concept. In general, interstate commerce means making things that will ultimately be sold across state lines, performing services across state lines, buying or selling things in different states, handling or transporting things across state lines, working on things in other states, or any other kind of work that implicates more than one state.

Big corporations are usually obvious examples, but even a small employer who sells items online could be covered by the law, provided the $500,000 limit is met.

My Employer Does Not Meet the $500,000 Limit or do Anything Out of State

 

Even if your employer does not meet the monetary threshold or obviously participate in interstate commerce, FLSA specifically covers the following:

• Hospitals (private or public)
• Nursing Homes (or any type of facility that serves the aged, sick, or disabled)
• PK-12 Schools
• Colleges and Universities
• Federal/State/Local Government

The following household employees might be covered if they work at least eight hours per week and earn more than a predetermined annual threshold of income from a single employer:

• Housekeepers
• Cooks
• Gardeners
• Home Health Aides
• Nurses

An individual employee who works in interstate commerce for a designated period of time may still be covered, even if the employer generally does not.

Is My Profession or Job Title Exempt?

 

This is one of the more common ways employers try to avoid paying overtime – they ‘classify’ workers as being one of the following job types. These are all exempt from the overtime protections of FLSA Overtime Protection, just to mention a few:

• Executives
• Administrative
• Professionals
• Teachers
• Lawyers
• Most Sales Employees
• IT / Skilled Computer Tech Jobs
• Fishermen
• Most Small Farm Workers (less than 500 workers)
• Casual Babysitters
• Most Commissioned Retail Workers
• Many More

My Employer Says I am Exempt, but I Disagree

 

Many employers will give a blue collar worker an ‘administrative’ title like Operations Manager or Office Manager, even though the person’s primary job duties are heavy labor or non-exempt types of work. This is done so the employer can classify the worker as a professional or administrative exemption in order to avoid paying overtime. Other employers might say that because they pay a salary, rather than hourly wage, this exempts the employee. This is untrue. The Department of Labor provides great resources for you to review.

If you believe your wage rights are being violated, call the attorneys of Fonteneau & Arnold, LLC. One call could save you thousands in lost wages, so do not keep wondering. Talk to an attorney who can help you understand and fight for your rights today.

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Types of Discrimination Explained

When a worker is terminated, demoted, or denied a promotion, it is often frustrating and can be quite unexpected. In other situations, there may be obvious and inappropriate reasons for the negative employment action. In Alabama, employment is considered at-will, meaning an employer can take adverse employment actions for just about any reason, so long as the reason does not violate federal law.

If your employer has an unlawful reason for taking actions against you, then you need to call an Alabama employment discrimination lawyer today to protect your rights.

Types of Discrimination

 

The Equal Employment Opportunity Commission (EEOC) hears disputes involving various types of discrimination. If you believe that your employer took a negative action against you due to any of the following reasons, you may have a potential discrimination case against the employer.

• Age: It is unlawful to discriminate based on age in most circumstances.  The Age Discrimination Act protects workers over 40 years of age.  Of course, there are exceptions, such as law enforcement, public safety, and military positions that may have upper age limits. If in doubt, speak to a lawyer right away.
• Gender: It is illegal to make employment decisions based on gender or gender identity. All workers have a right to be judged on the character and quality of their work and abilities, not their gender.
• Ethnicity/Race/Color/Nation of Origin: Ethnicity, race, color, and national origin are all different but often overlapping social dynamics. Ethnicity is, to put it simply, a shared social background that often includes a similar language, religion, or ancestry. Ethnicity may not always be obvious on the surface. Race is a social characteristic that is identifiable among a particular group, most notably due to physical features and characteristics. Color is simply skin color. Nation of origin is simply the country from which someone originates. These are often subtle but key distinctions. Nevertheless, all are improper reasons for making hiring, firing, or promotion decisions in the workplace.
• Genetic information: Genetic discrimination occurs when an employer or even a health insurance company attempts to discriminate based on unique genetic information. This was made unlawful by the Genetic Information Nondiscrimination Act of 2008 (or GINA).
• Disabilities (mental or physical): Some disabilities are obvious, like amputations, while others are invisible, like depression, ADHD, or post-traumatic stress disorder (PTSD). Regardless of the disability, this should not be a ground for discrimination in the workplace.
• Veteran status: There are some who actually view military service negatively or who fear that veterans are somehow less able to perform jobs. This is also unlawful discrimination.
• Members of the Armed Forces Reserve: Reserve members cannot be treated in a discriminatory manner for attending scheduled drill or otherwise having to miss work to perform military service, including training or deployment.
• Pregnancy / Parenthood: Being a parent, having a child, and adopting are personal decisions that should not be considered in an employment context.
• Relationship to a person who has been the victim of discrimination: Employers should not make employment decisions based on the fact that a person’s relative is involved in a claim of discrimination.
• Reporting or acting as a witness in a discrimination case: Your employer should not discriminate or take adverse actions against you for speaking up and reporting discrimination or acting as a witness in a claim of discrimination against the employer.

Get Help With Your Discrimination Case

 

If you suspect that you have been the victim of discrimination, or you know someone who has, it is important to contact a lawyer right away. Time is limited to take actions to protect your rights. At Fonteneau & Arnold, LLC, we pride ourselves in aggressively fighting for our clients and counseling them through challenging and complex situations involving wage disputes, sexual harassment, discrimination, and other labor disputes with employers. Contact us today to schedule a consultation and get answers.

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What to Expect When You File a Discrimination Case

When you have been the subject of employment discrimination, it can be difficult to know where to turn. Complex federal and state laws often create hurdles and obstacles. Employers certainly do not make it easy. Family and friends may be full of seemingly good advice, but when it comes right down to pursuing justice, victims often find themselves all alone. Fonteneau & Arnold, LLC wants you to know exactly what to expect when you file a discrimination case against an employer.

Step 1: First Try Complaining to Management

 

It is hard to say your company was in the wrong if you never gave them a chance to do right. So, notify your superior or human resources department right away. It is best to put something in writing. Keep a log book or journal, and write down the name and title of the person you informed about your discrimination. Creating a paper trail is crucial. If your complaints go unanswered and the problem continues (or gets worse), proceed to step 2.

 

Step 2: The Equal Employment Opportunity Commission (EEOC)

 

Before you can just go to court and file a lawsuit, there are some administrative steps you must take.  This involves filing a complaint with the EEOC. Each area has its own local agency that is tasked with handling the complaint process. The EEOC is strict about how long you have to file, however. In many states, there are extended deadlines for filing. Not so in Alabama. As the EEOC makes very clear, you have just 180 days to file your complaint.

Unless you are close to the deadline to file, you should call Fonteneau & Arnold, LLC to see if the firm can assist you with filing a Charge of Discrimination.

Step 3: EEOC Investigation and Determination

 

EEOC, while a fine government entity, is still the government. There are inefficiencies and bureaucratic issues that can delay progress. The EEOC will investigate your complaint, talk to witnesses, and attempt to resolve the matter without court intervention. During this process, here are some tips for you to keep in mind:

• Document everything
• Stay focused
• Do not be afraid to check in and stay on top of the case
• Continue looking for creative solutions
• Speak to your private attorney

Step 4: Right-to-Sue Letter

 

Chances are pretty good that your case will get denied. This does not mean it lacks merit; it just means the EEOC gets a lot of cases and tends to deny many of them. If the EEOC cannot resolve the claim, it will send you a letter advising that you now have the right to file a lawsuit under Title VII. You will only have 90 days, though. This is a very short amount of time to prepare and file a lawsuit, even for highly skilled attorneys. Hence, it is usually a good idea to speak with an experienced discrimination lawyer well in advance of this point.

Keep in mind that the EEOC can actually represent you and file a lawsuit on your behalf.  However, it is very expensive, and the government is limited in how many cases it can pursue. It generally focuses on more serious, politically charged, or highly publicized cases that may have precedential effect. In other words, the EEOC prefers to take cases that could lead to sweeping changes.

Right to Hire Your Own Attorney

 

If you have a potential discrimination case against your employer, you have a right to hire your own attorney to work with you to navigate the system and move your case forward, whether through an EEOC resolution or through a federal action in court. At Fonteneau & Arnold, LLC we focus our efforts on representing workers who have faced discrimination, harassment, wage violations, or who are facing complex labor disputes with their employers. If you need help, call us as soon as possible so we can begin helping you build your case today.

Case Involving Alabama Arby’s Franchise

Highlights How Teens are Impacted by Sexual Harassment

 

When most people think about discrimination and sexual harassment, they tend to think of adult professionals who are passed over for promotions or subjected to sexual advances by high-powered executives. However, a current case pending before the Equal Employment Opportunity Commission (EEOC) highlights the realities of sexual harassment and how even younger workers can be impacted.

The attorneys of Fonteneau & Arnold, LLC represent clients throughout Alabama who face discrimination, harassment, and labor rights violations. Call today if your rights are being violated.

March 30, 2018 Lawsuit

 

A little over a month ago, the EEOC filed suit against an Alabama Arby’s franchise owner, Beavers’, Inc., alleging among other things that the franchise (and Arby’s) had ignored repeated complaints of sexual harassment against female employees. According to the complaint, the franchise company knowingly hired a male employee who had a history of sexual harassment. Allegations go on to explain that this male employee was hired as a “team leader trainee,” who began pressuring female employees to engage in sexual relations with him. The graphic and detailed allegations even claim that he “attempted to follow employees home.”

Teenagers Among the Victims

 

What makes this story even more troubling is that among the victims are a number of young workers, some of whom were just teenagers at the time. These teens allegedly reported the harassment to superiors but received no support or action. Ultimately, it is claimed that one of the victims was actually physically injured by the accused harasser.

The case, EEOC v. Beavers’ Inc., d/b/a Arby’s, Case No. 1:18-cv-00150, is pending before the U.S. District Court for the Southern District of Alabama. As a press release from the EEOC reports, Beavers’, Inc. is a Florida company that operates 51 franchises throughout the southeastern U.S.

Sexual Harassment Affects Everyone

 

Some people think of sexual harassment as harmless fun of “just joking,” but the key distinction to remember is that it becomes sexual harassment when there are unwelcome sexual advances or the environment becomes hostile and it affects your ability to work and carry on your daily tasks.

The American Association of University Women (AAUW) released a comprehensive report in 2011, which chronicled the results of a survey of almost 2,000 individuals nationwide. The results were astonishing. Nearly half of all women surveyed reported being sexually harassed as a teenager, whether in school or at their jobs, many of which were part time or low-paying jobs frequently held by high school students. The survey results also illustrated the harm one by these events, as 87% of those who reported harassment felt that it had a negative impact on their lives.

Simply put, no one should be forced to tolerate this type of behavior, especially not children and young teenage adults. Such behavior teaches an early and damaging lesson that is hard to unlearn.

Fighting for Your Rights

 

If you have been the victim of workplace harassment, discrimination, or unwelcome sexual advances, contact an experienced team of Alabama employment discrimination lawyers who can answer your questions and guide you through the challenging maze of laws that apply to harassment claims. Our team at Fonteneau & Arnold, LLC have over 20 years of collective legal experience that they can put to work for you. Call today to schedule a completely free and private case consultation. There is no charge for meeting to discuss your case, so put your mind at ease and find out your options today.

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Five Industries with the Most Sexual Harassment Claims

Not surprisingly, some industries and jobs see a higher number of sexual harassment claims. While one may immediately think of jobs like the military, law enforcement, or other male-dominated workplaces, according to recent reports by the Equal Employment Opportunity Commission (EEOC), the following are the five industries with the most annual claims for sexual harassment. According to EEOC data, about 30% of all complaints brought before the commission are based on sex or gender discrimination.

Hospitality

Vox reports that data from the EEOC shows about 14% of claims were brought by members of the hospitality industry. This includes food service, hotels, and other service industry jobs. While there are perhaps a number of complex reasons for this statistic, it likely has something to do with sheer numbers. It is a big industry, there are a lot of people working in these jobs, and although sexual harassment claims can be made by women and men alike, 74.4% of claims in 2014 were filed by women.

Hospitality is still a female-dominated industry, meaning there is just a statistically higher probability of sexual harassment claims in this industry. Of course, these jobs are also more likely to involve late nights, alcohol, and other factors that may increase the likelihood of inappropriate relationships forming in the workplace.

Retail

Retail jobs made up about 13.44% of the claims. Much like hospitality jobs, this field often requires odd shifts, late hours, and younger, less experienced workers and supervisors. These things tend to result in poor decisions and less accountability.

Manufacturing

A largely male-dominated industry, manufacturing involves shift work, late nights, and women working side-by-side with male counterparts. Manufacturing accounted for 11.72% of the claims filed with EEOC.

Healthcare

An ever-growing industry that has fairly equal representation between men and women, healthcare ranks fourth on the EEOC’s list of industries for sexual harassment claims. It is difficult to know exactly why so many healthcare workers claim discrimination and harassment each year, but it may again have something to do with the close proximity in which people work, the late or variable shifts, or the high-stress atmosphere. These things can lead people to develop unhealthy workplace behaviors that can go unchecked or unnoticed by management.

Administrative Support

A blanket term for secretarial, office workers, and other general clerical workers, this industry makes up a significant percentage of all American office jobs.  Employees who directly support professionals (e.g. secretaries, assistants, receptionists, etc.) are often the subject of harassment and discrimination by superiors. Many times, discrimination comes in the form of quid pro quo (or “this for that”) types of arrangements, whereby a person in a position of authority makes it clear that the job or pay increases are “conditioned” upon improper sexual favors or silence.

Are You Suffering From Workplace Discrimination or Harassment?

If you or someone you know is being sexually harassed or discriminated against on the basis of race, color, religion, sexual orientation or identity, gender, or any other federally protected status, you should contact a Birmingham employment rights attorney right away. Federal law protects workers from this type of behavior, and you may even have a right to be compensated for your lost income if you are fired or denied a promotion for these reasons. Call Fonteneau & Arnold, LLC to learn more today.

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What is USERRA and How Does it Protect My Job?

Reservists and National Guard members serving in the U.S. Armed Forces can face a lot of challenges when it comes to maintaining civilian employment. Employers often want the skills and experience that service members bring to the job, but deployments and annual training drills can be a struggle for employers. Fortunately, federal law protects members of the Armed Forces. Alabama employment attorneys want you to understand your rights when it comes to military service and private employment.

What is USERRA?

You may have heard of the federal law, but do you really know what it does? USERRA is short for the Uniformed Services Employment and Reemployment Rights Act, and it prohibits employers from discriminating against employees (and applicants for employment), simply on the basis of military service.  The law is designed to ensure that a member of the Armed Forces can maintain his or her job in the civilian world, regardless of the need to mobilize in support of military duties.

The law is extremely complicated and has many nuances and exceptions, but in general, it accomplishes three things:

• It protects service members against discrimination for employment, retention, advancement, benefits, and re-employment after returning from military service
• It requires employers to give you up to 24 months of health insurance upon going on military leave
• It makes clear that military service takes priority over private employment

To Whom Does USERRA Apply?

As a general rule, USERRA applies to all employers, no matter how small. Even a mom and pop shop with one employee is governed by the law. Unlike most federal wage discrimination laws and state labor laws, there is no industry restriction or size limitation; all employers are required to comply. Members of the Armed Forces who are over 40 years of age are also protected by the Age Discrimination in Employment Act.

Common Ways Employers Violate USERRA

Every year, thousands of USERRA complaints are made to the Department of Labor, and many of them involve very similar violations, such as:

• Refusing to hire a reservist
• Taking away seniority after a deployment
• Not providing health insurance while on military leave
• Refusing promotions or advancement due to military status
• Not letting a reservist or Guard member return at the same job or pay rate after military leave

Enforcing a Service Member’s Rights Under USERRA

Unlike almost all other federal causes of action, there is no deadline on filing a lawsuit against an employer who discriminates against a member of the Armed Forces under USERRA. That said, if you are fired because of your attendance at military drills, or you suffer any other adverse employment consequences due to your military service, then you should immediately contact an attorney who understands this complex federal law.

The attorneys of Fonteneau & Arnold, LLC have decades of experience helping workers enforce their rights under state and federal law. If you have been the victim of a USERRA violation, and you believe your employer has discriminated against you on the basis of your military service, you may have a right to bring a civil lawsuit against the employer to recover for lost income, lost benefits, and other damages. Call or visit our firm online to learn more and get the help you need.

 

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What to Do If Your Boss Makes You Falsify Time Entries

Under federal law, employers are required to keep accurate records of employee labor. This is because the law also has rules pertaining to what an employer must pay an employee, such as minimum wage and overtime. Birmingham labor law attorneys routinely meet clients who have been cheated out of their earnings due to unscrupulous employers hiding or mishandling payroll information. One clever trick some employers use is to have an employee falsify time entries. Then, if that employee complains, the employer fires the employee, alleging the termination is because the employee was breaking the law by lying about his or her hours. It is dirty, and it is unlawful. Here is what you should know about timekeeping standards and federal law.

Fair Labor Standards Act

Under the Fair Labor Standards Act (FLSA), employees are guaranteed minimum wage and overtime pay, where eligible and qualified under the law. An employer is prohibited from “reducing” or in any way capping overtime pay. Put another way, if you work the hours, you get the pay. An employer does not have to let you work more than 40 hours per week, but if you do, then you have a right to be paid the applicable time and a half rate for those hours.

How Employers Use False Time Entries to Avoid Overtime Pay

An employer might create this unlawful situation by first asking employees not to ‘go over their hours.’ This is code for ‘we do not want you to work more than 40 hours.’ This is perfectly fine. However, over time the employer might begin noticing that the business sometimes requires more hours. The employer may begin asking employees to ‘carry over hours.’ This is code for “falsify your time entries so we do not have to pay overtime for your extra hours.”

If an employee works 35 hours one week then 45 the next, the employer may try to have the employee shift the five extra hours to the first week, thereby making three 40-hour work weeks, when in truth, the employee is probably due five hours of overtime pay for the week he or she worked more than the regular 40. This is unlawful.

Keep it in Writing

If your employer is forcing you to falsify time sheets or electronic time entries, first speak to an experienced labor law attorney near you. Most of the time, you will want to get your supervisor on the record in writing.

Employer’s Record Keeping Duties

Employers must keep payroll records for at least three years. Time entries must be kept for two years. There is no specific form of record keeping required, but there must be adequate information to record the hours worked and rate of pay.

Department of Labor Wage and Hour Division

If you are receiving illegal or inadequate compensation for your work, you may have a claim for the wage violations. These types of claims are brought before the Department of Labor’s Wage and Hour Division.

Being Represented by an Attorney in Your Wage Claim

Fonteneau & Arnold, LLC have over 20 years of combined experience helping Alabama workers just like you. From wage and labor violations to unfair or illegal terminations, we fight to protect hard-working people who just want to be treated fairly by their employers. Call or visit us online to learn more or schedule a consultation to review your case today.

 

 

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Is it Sexual Harassment to Ask Out a Coworker?

Like so many legal answers, the real answer to this question is, “it depends.” As a general rule, no. You can ask out just about anyone you want, assuming your company does not have anti-fraternization policies. We will set aside the issue of whether it is inappropriate or perhaps a bit unprofessional to ask out coworkers, you are legally permitted to ask coworkers out under most circumstances. Of course, many employers have strict policies that prohibit it, and for good reason. When relationships develop at work, it can negatively affect productivity, and when relationships fall apart, it can create an uncomfortable working environment for everyone.

At any rate, it is important to understand the nuance of what is meant by “ask out.” This phrase means different things to different people. To better understand this, it is necessary to first know exactly what sexual harassment is, and how the law views it.

What is Sexual Harassment?

The Equal Employment Opportunity Commission (EEOC) describes sexual harassment as follows:

• Unwelcome sexual advances
• Requests for sexual favors
• Other verbal or physical harassment of a sexual nature

So, the key is whether the advances are welcome or not. If there is any question whatsoever that advances are unwelcome, then no, you should absolutely avoid making any advances toward a coworker (or anyone else for that matter).

Rejected Advances

If a coworker asked you out and you rejected the request, this should be the end of the discussion. If that coworker moves on to other matters and makes no further advances, then it is unlikely going to rise to the level of harassment. After all, the key is unwelcome advances. Once you made it known that the advances were unwelcome, if the coworker respected your wishes and proceeds to behave professionally from then on, there should not be a problem.

Unfortunately, this is not usually what happens. If that coworker continues to “hit on” you or ask you out, this may be harassment.

Advances From Supervisors

Things become much clearer when it comes to superiors in the workplace. If a superior is making advances and asking out subordinates, it can create a quid pro quo scenario, wherein the employee feels as though the job, money, promotions, career advancement, and so forth are contingent upon giving in to the superior’s advances. This is definitely a big problem and one that should be cause for concern.

Sexual Jokes, Teasing, and Comments

The law does not expressly say that people have to be prudes or avoid all humor and lighthearted fun. We all want to work around people we like. We all want to be able to let our guard down and have a good time without worrying about things going too far. Sexual harassment occurs when a line is crossed between welcome and mutual jokes and something that is so serious, frequent or pervasive that it could be described as hostile. Unfortunately, that line can be hard to clearly identify.

If a coworker or superior occasionally makes an odd joke, but it does not really bother you or anyone else, it is not likely harassment. Perhaps it is just poor taste. But if this happens on a regular basis and is clearly creating an unpleasant and hostile working environment, then it is a problem. Likewise, if the severity of the behavior creates an adverse employment decision, such as you being fired for bringing up your concerns or for not engaging in the conduct, then it may very well be sexual harassment.

Talk to a Sexual Harassment Lawyer First

Sadly, the law is not 100% black and white in the area of workplace harassment. Often these cases are full of nuance and gray areas that require the skilled analysis of an experienced employment attorney who can compare your unique situations to hundreds of prior court decisions with similar facts. By looking at how courts and the EEOC have ruled in the past, an attorney can help you better understand your chances of success if you bring a claim for harassment. This is why it is important to talk to a lawyer early, before things get worse. For a free consultation, call Fonteneau & Arnold, LLC today.

 

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2017’s Five Biggest Tech Company Sexual Harassment Scandals

Far too many women experience sexual harassment and discrimination in the workforce. When it happens to you, it can be dizzying and confusing. There are so many questions that need to be answered. Worse yet, there are strict limits on how long you can think through what is happening to you before getting help.

For women in Silicon Valley, 2017 has seen a lot of revealing stories about sexual harassment and discrimination in the media. We have gathered a few of the most explosive stories of the year, specifically those involving high-tech startups and their leadership.

Draper Fisher Jurvetson

In November of 2017, Steve Jurveston was pushed out of his own venture capital firm amid widespread reports of “predatory” behavior towards women. Notably, Keri Kukral’s Facebook post regarding Jurveston’s behavior went viral, leading to a number of questions being asked. Soon, others came forward about the allegedly systemic behavior by Jurveston. Ultimately, as reported by ReCode, he stepped down from his own firm. He had also been a member of the board for Elon Musk’s companies, Tesla and SpaceX. Jurveston has since stepped down from both of those, as well.

Betterworks

Betterworks is a continuous platform management company that serves a lot of major operations around the globe. Former CEO Kris Duggan co-founded the company back in 2013. According to Business Insider, he opted to step down after being sued in a California court. The lawsuit was brought by a female employee who claims he made unwanted sexual advances while on a company retreat. Her career at the company ended when she left following the incident.

500 Startup

While the allegations against Jurveston and Duggan center on workplace sexual advances, allegedly used in a coercive manner, Dave McClure, the former chief of 500 Startup, takes this one step further. According to allegations, he forcibly and repeatedly kissed a female executive in 2014. As reporting from Fortune.com explains, the accusations go far behind using power or leverage to induce sexual favors; they directly suggest assault.

Google

The presumptive high-tech leader of the pack, Google, certainly was not immune from scandal in 2017. At least three high-level employees of the company were forced out amid allegations.

First, engineer Amit Singhal left the company to join Uber. However, Uber later discovered reports that sexual harassment allegations during his time at Google were determined by Google’s investigators to be credible. This led to his early departure from Uber in February of 2017.

Next, Andy Rubin was the subject of a 2014 investigation at Google due to allegations of inappropriate behavior arising from his relationship with subordinate female employees. While maintaining his innocence, the Android developer took a leave of absence from his company amid the allegations.

Finally, in November of 2017, yet another Google employee was the subject to sexual misconduct allegations. David Drummond, a top attorney at Google, was discovered to have been involved in a lengthy extra-marital affair with a female subordinate. As The Mercury News reports, that female employee has since left the company, yet Drummond remains the chief legal officer for the company’s parent corporation, Alphabet, Inc.

Uber

Uber gets first prize. Of course, that is not exactly a lofty prize. Since last June, the tech startup has seen at least 20 firings due to allegations of sexual harassment. Starting with the ousted CEO, Travis Kalanick, the company has been accused of having a ‘locker room’ culture that disparages women and leads to a terrible and hostile work environment for female employees. The Chicago Tribune details numerous accounts of female employees being ignored or outright shut down when complaining of sexual advances or worse.

How to Handle Sexual Harassment

While Silicon Valley had a rough year, sexual harassment happens in all types of workplaces.  The Equal Employment Opportunity Commission (EEOC) is the primary agency responsible for adjudicating claims under federal civil rights laws, including sexual harassment and discrimination claims. However, you must file a charge for workplace discrimination within 180 days. That means you generally have just six months to consider your options and take action.

Birmingham workplace discrimination lawyers can help you answer these tough questions and give you the tools, resources, and support you need in order to take control of your harassment or discrimination case.

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Getting the Pay You Deserve

Everyone knows about overtime. If you work more than 40 hours, you get overtime, right? Not necessarily. There are a lot of exceptions to overtime rules. In general, however, federal law offers some solid protections. Here is a brief look at the ways federal labor laws protect your wages.

Under the Fair Labor Standards Act (FLSA), workers have a right to be paid for their work. Below are just a few of the specific details. Remember, though, labor laws do not apply to all workers equally, and they do not apply to all industries. There are a lot of exceptions that are just too specific to discuss here. So, if you suspect your employer is breaking the rules, talk to a Birmingham wage and overtime lawyer right away.

Minimum Wage

Federal law requires that employees not be paid less than minimum wage. Currently $7.25 is the federal minimum wage.  Most states have a minimum wage that exceeds the federal standard. You can compare state minimum wage to see how your state stacks up.  In those locations, workers must be paid the higher amount. Alabama does not have a minimum wage.

Consider that according to a U.S. Inflation Calculator, inflation has increased by about 14.3% since 2009. Alabama’s minimum wage has remained the same.

Overtime

Federal law also requires that certain classes of workers must receive ‘time and a half’ for any work over 40 hours in a given seven-day period. The rule can be a bit complicated, so you can also visit the Department of Labor to read more. In general, though, there is no requirement to pay overtime simply due to weekends, nightshifts, or holidays, unless it exceeds the 40-hour rule.

Hours Worked

Sometimes employers get sneaky to get around overtime rules. They may try to get employees to perform ‘administrative’ tasks or log off for required breaks. Others may require workers to do a host of preparatory tasks, such as maintenance or clean up duties, all off the clock. The Department of Labor offers a simple FACT SHEET to help you better understand the nuance behind the rules. Of course, the best way to know if your employer is violating your rights is to talk to a local Birmingham employment attorney.

Recordkeeping

Imagine trying to prove your employer has been withholding money for years, including overtime pay.  You claim the company makes you spend 30 minutes before and after your shift doing various tasks that are not compensated. You and your attorney determine that this is a violation of the law, and you wish to make a claim for your lost income. It would be easy for the employer to simply lie and say there is no record of your hours. To prevent this, FLSA requires employers to maintain accurate records of hours worked and wages paid.

Child Labor Protections

As of the year 1900, 18% of American workers were under 18, according a story by the History Channel. Many children were starved, worked long hours, and used to extremely dangerous, yet low-paid work. In 1938, with the passage of FLSA, strict compliance rules were put in place to prevent this.

Today, children under 14 may only work in limited jobs, such as newspaper delivery and periodic babysitting. At 14 or 15, a teenager can work a little more, but no more than three hours on a school day. The law allows gradually more work as a child gets older. For detailed resources, the Department of Labor maintains a special website to help children, their families, and employers to make sure they are in compliance.

Get Answers Today

It would be impossible to discuss here all the potential scenarios that could lead to wage violations. The easiest and most accurate way to address a potential problem with an employer is to contact an experienced attorney who understands the applicable state and federal laws in detail. Contact Fonteneau & Arnold, LLC today to discuss your situation and get real answers now.

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Five Common Sexual Harassment Myths Busted

2017 ushered in what some are calling a new era of gender inequality awareness. With numerous celebrity sex scandals and stories of abuse and harassment of all types, social media and the mainstream news are full of stories about people in positions of power abusing their authority.

Sadly, there is a lot of misinformation out there when it comes to sexual harassment and what it truly means. There are state and federal laws that set the standards for workplace behavior. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is a form of discrimination based on sex. While this may seem clear, there are some big myths that need to be addressed.

Myth #1: Women do Not Sexually Harass Workers

Busted! 

The truth is anyone can be a victim, and anyone can be the harasser. Men harass other men, women harass men, women harass other women. Bad behavior knows no gender limits. While we certainly hear more about men in positions of power sexually harassing female subordinates, the EEOC focuses on facts, not the gender of the victim or the accused.

Myth #2: It is Only Sexual Harassment if the Harasser is in Charge

Busted!

Title VII of The Civil Rights Act of 1964 acknowledges two basic forms of sexual harassment. On one hand, a person can commit the offense of harassment by creating a quid pro quo (“This for that” in Latin). This is the type of harassment most people think of when they imagine a typical harassment case. It is where the harasser makes the victim aware that the only way to obtain a job, promotion, more money, or some other benefit or privilege would be to succumb to sexual advances in some way. Yes, this is definitely a form of harassment based on sex.

However, harassment can also be as simple as creating a work environment where the conduct interferes or disrupts work or where it is intimidating or hostile in some way. The EEOC has found sexual harassment in situations where workers posted pornographic materials or used offensive language near other employees, and even after being made aware that it was not acceptable, the conduct continued.

Myth #3: Once the Victim Consents to Behavior, it can Not be Harassment

Busted!

While it is indeed true that behavior only rises to the level of harassment if someone finds it hostile or unwelcome, consenting to advances is not a permanent decision. For instance, consider a person who expresses interest in a co-worker, and that co-worker expresses a mutual interest. In general, this is not harassment.

If, however, that person later changes his or her mind and expresses a desire to discontinue the sexual or intimate nature of the relationship, then further advances would likely be considered harassment. Ultimately, the point is to look at whether the behavior is welcome or whether a reasonable person would consider it offensive or hostile. Remember, you always have the right to change your mind about participating in a relationship with another person.

Myth #4: People Who Claim Harassment are Just Looking for Money

Busted!

While less than half of all claims succeed before the EEOC, this is not because they are false or made-up. Rather, many people fail to hire an attorney or they do not know how to present the proof necessary to succeed. On the contrary, as The Guardian reports, about 75% of victims do not even report the behavior. The truth is, harassment happens a lot, and you should not be afraid to talk to a lawyer to get advice if it is happening to you.

Myth #5: The Company is Only Responsible for Employees

Busted!

Actually, a company can be held responsible for the conduct of vendors, contractors, subcontractors, and other related entities who are permitted to create a hostile working environment for employees.

Talk to a Local Birmingham Sexual Harassment Lawyer

If you are the victim of sexual harassment, your trust is broken. Perhaps you feel betrayed. It is hard to know who to trust. The attorneys Fonteneau & Arnold, LLC have decades of experience handling sensitive and challenging legal problems for their clients. Call (205) 252-1550 or visit us online to get real answers now.

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