Commerce Bank Building
8841 Long Street
April 12th, 2011
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April 15th, 2013
As the official unemployment rate continues to linger around 8 percent with the “real” unemployment rate being considerably higher, there are a growing number of legal claims be out of work employees who are financially desperate. Wage and hour claims are among the fastest growing type of employment law claims including claims based on failure to pay the earned amount of hourly pay, overtime compensation, bonuses and benefits. Missouri wage and hour claims may be based on either state law or the Fair Labor Standards Act (FLSA). If you are facing this type of claim, it is extremely important to seek legal advice promptly because these claims may result in class action designation, and they may include unpaid forms of compensation going back for up to six years depending on the state in which the claim is brought.
The first line of defense against a wage and hour claim in Missouri is to accurately compile and maintain records as required under state and federal law. While most employers are aware that the failure to keep proper payroll and time card records can result in penalties and fines, failure to keep these records will also expose you to liability in a wage and hour lawsuit from employees who claim they were not properly compensated. If you have not obtained legal advice about your record keeping system and method of tracking employee work hours, you should consider consulting with a Missouri employment law attorney who can evaluate your procedures and policies to determine if you are in compliance with state and federal law. If employees are forced to clock in and out every day and sign their timecard daily, this is a good practice.
Another key area that lands employers in hot water is improper classification of employees as exempt and non-exempt. By reviewing job titles, duties and responsibilities with a Kansas City employment lawyer, you can avoid misclassification of workers that can lead to enormous exposure in unpaid overtime litigation. A person who is supervising a single employee, for example, cannot necessarily be classified as an exempt employee so that the person can be paid a fixed salary unrelated to the number of hours. Even a high level managerial employee will not always qualify as an exempt employee under sometimes ancient overtime statutes that may have been enacted during the forties.
Whether you are doing an internal audit of compliance with hour and wage laws, structuring company policies and procedures or facing litigation over unpaid overtime claims, Attorney Rodney K Murrow has more than 20 years of experience advising and representing both employers and businesses from Kansas and Missouri. If you have a business or employment law issue, we are here to answer your questions. We have built a reputation for impeccable legal services with over 20 years of experience so contact us today at 913-492-6200.
March 11th, 2013
Many Kansas companies attempting to avoid exposure to legal claims based on sexual harassment employ anti-fraternization policies. While these policies can have substantial advantages, they should be carefully structured to avoid undue limitations on the rights of association or assembly particularly in the context of the rights of employees to organize. Our Kansas employment law defense law firm has provided some suggestions for structuring a policy to deal with socializing and romantic relationships between employees that can head off potential claims of sexual harassment while avoiding lawsuits based on limiting the association and assembly rights of employees.
Disallow Fraternization between Employees of Different Ranks: While co-workers dating or socializing may not be as likely to result in sexual harassment claims, there is a substantial risk when those at different organizational levels engage in romantic relationships. The relationship may eventually end badly and result in one party claiming that the relationship was not consensual because of the power or influence that the officer, manager or supervisor exercised over the employee. Many sexual harassment claims involve allegations that what appeared to be a consensual relationship was the product of coercion because of the influence that the person in the greater position of power within the organization was able to exercise over the party pursuing the sexual harassment lawsuit.
Require Written Disclosure: If the company has a policy of mandating that those who are involved in personal relationships outside the workplace provide written disclosure of the relationship, this provides evidence the company can use that the relationship was consensual. Again, this type of policy should be aimed at those in similar positions rather than those that differ in their authority within the business.
Have Employees Sign Off on a Written Anti-Fraternization Policy: While sometimes an anti-fraternization policy will simply drive romantic relationships in the workplace underground, a business that has employees sign off that they are aware of the company’s anti-fraternization policy may be in a better position if the relationship goes bad and results in a sexual harassment lawsuit.
Install Effective Grievance and Self-Harassment Policies: The best approach to avoiding sexual harassment claims that arise out of workplace romantic relationships is to have an effective and well-documented procedure for employees to seek redress regarding sexual harassment claims. The process should be designed to encourage employees who claim they are being victimized to come forward and deal promptly with such claims.
At The Law Office of Rodney K. Murrow, P.A., we represent businesses in employee disputes in Kansas and Missouri. We offer a free consultation so that we can evaluate your needs and objectives. Call us today at 913-492-6200 or email us.
February 13th, 2013
An increasing number of businesses are insisting on a drug-free workplace to prevent accidents that result in lost productivity and worker’s compensation claims. While employers may drug test employees under Kan. Gen. Stat. Ann. §75-4362, there are specific procedures and policies that are necessary to avoid potential exposure to wrongful termination claims, retaliation claims under employment discrimination laws and other potential forms of liability. Experienced Kansas employment law defense attorney Rodney K. Murrow has provided an overview of drug and alcohol testing in the workplace under Kansas law.
While there is no comprehensive federal law that directly regulates adoption of drug testing by private employers. However, the Drug-Free Workplace Act does require implementation of certain education requirements on private employers that contract with the government, but the act does address the issue of whether to drug test. The Americans with Disabilities Act (ADA) also does not prohibit drug testing by private employers because substance abuse is not considered a disability under the ADA. Because there is no specific federal regulatory scheme that covers the adoption of drug testing procedures or policies by private employers, Section 75-4362 provides the appropriate procedures.
This provision authorizes testing of employees in safety-sensitive positions but only when there is reasonable suspicion of substance abuse, such as the following:
- Medical emergencies attributable to drug use
- Reports of drug use by the employee
- Workplace accidents that may be caused by substance impairment
- Observation of visible signs of impairment
If an employer maintains a drug free workplace program, the employer should provide a written policy that advises employees of the consequence of violation of the policy in term of unemployment and workers’ compensation benefits. Employers also should ensure that employees are informed that drug testing for alcohol and drugs is a condition of employment.
The actual chemical testing must be conducted by licensed professionals in a certified testing lab. When an employee is injured during a workplace accident, drug testing will typically be conducted at the time of treatment for injuries suffered in the on-the-job accident. However, an employer should be reasonable in carrying out its drug policy. For example, the employer should not delay getting an employee who is hurt in a workplace accident emergency medical attention for the purposes of facilitating immediate drug testing. If the employer complies with these policies, benefits under the Kansas worker’s compensation system and unemployment benefits may be denied.
At The Law Office of Rodney K. Murrow, P.A., we represent businesses in employee disputes in Kansas and Missouri. We offer a free consultation so that we can evaluate your needs and objectives. Call us today at 913-492-6200 or email us.
January 15th, 2013
Just as employers are prohibited from discriminating against employees on the basis of race, gender sexual preference, or disability, they also may not discriminate due to religious preferences. Employers are not allowed to treat employees more or less favorably simply because of the religious beliefs or practices of the employee and may not impose more—or even different—work requirements because of religious beliefs. Employees may never be forced to participate in a specific religious activity as a condition of their employment. Unless it would create a significant hardship in the workplace, employers are required to offer “reasonable” accommodations to employees who engage in specific religious practices.
In other words, suppose an employee needed a certain time off in order to participate in a religious practice; the employer would be expected to allow flexible scheduling in order to allow the employee to do so. Modifications of dress codes and grooming requirements might be necessary in some instances, for example for an employee whose religion required wearing a beard or wearing specific clothing. If accommodating the employer’s religious beliefs would lead to significant hardship for the employer including excessive administrative costs, diminished efficiency in the workplace, an infringement upon the rights of other employees, impairment in workplace safety or if those accommodations conflicted with other laws or regulations, then the employer is likely off the hook.
If other employees are engaging in harassing behaviors toward an employee who has specific religious beliefs then the employer is responsible for ensuring those harassing behaviors stop. Employers must implement anti-harassment policies and have policies and procedures in place which specifically address the process for reporting, investigating and correction of religious harassment in the workplace. The laws for religious discrimination are different from those for race or age discrimination in that religion tends to be a specific set of beliefs or practices rather than an obvious physical characteristic.
Employers are not allowed to hire only those who have similar religious beliefs, and may not discriminate against those who are not religious. This means that an employer who is a practicing Baptist is not allowed to discriminate against an atheist regarding hiring, firing and promotions simply because the employee’s beliefs are radically different from those of the employer. What about the employee who offers a sincere “God Bless You” to a sneezing atheist? Has the employee committed—knowingly or unknowingly—religious discrimination? This is a very slippery slope and it can be extremely difficult to balance the rights of those who believe with the rights of those who do not share those beliefs.
A recent case found that British Airways breached an employee’s religious rights when they banned her from wearing a crucifix yet a nurse who was banned from wearing a cross remained banned due to “health and safety” issues. The issue of religion is both a controversial subject as well as a very subjective issue therefore the rulings regarding those who have filed against their employer on the grounds of religious discrimination are all over the map. If you feel you are the victim of religious discrimination, it is important to contact a knowledgeable attorney who can help you explore your options and preserve your rights.
December 15th, 2012
A University of New Mexico study found that mothers earn a minimum of 14% less than women with no children even though women represent nearly half of the current United States workforce and at least three-fourths of women in American have children by the time they are 44. This means that a large percentage of working mothers in the United States will experience some level of workplace discrimination during their career. While we would hope that the struggles women have faced through the last few decades in the workplace would have created a loyalty among females in the workplace, this doesn’t always appear to be the case.
Younger women with no children may use the fact that other women in the company have children in order to get ahead while older women with grown children seem to have little patience with younger mothers attempting to move up the corporate ladder while raising a family. In fact, in many cases senior female managers can be even harder on the working moms in the company in an effort to “prove” themselves or show they do not allow extra flexibility to working moms. Conversely, older female workers may actually harbor bitter feelings when they see allowances being made for today’s mothers that were not offered to them years ago when they were working and raising their own children. These attitudes can escalate into blatant workplace discrimination for working moms. The Equal Employment Opportunity Commission counsels employers to avoid assuming that women with children are less committed or less capable than their child-free counterparts, yet this caution is not always heeded.
Today, employment discrimination based on caregiving responsibilities—whether for children or aging parents—is called Family Responsibilities Discrimination and can encompass married or single women, married or single men, parents of young children and workers who have the responsibility of caring for elderly or ill parents or spouses. Even though many states do not have a specific statute on the books to prohibit family responsibilities discrimination, the state courts nonetheless have ruled that this type of discrimination is illegal. When a mother—or father—of young children or a pregnant woman is not promoted or is penalized for taking time off to deal with family responsibilities, then discrimination has occurred. Women with children are the most likely group to experience Family Responsibilities Discrimination—they are nearly 80% less likely to be recommended for hire, almost 100% less likely to be promoted and are routinely offered at least $10,000 less in salary for the exact same position as a male in roughly the same situation.
If you believe you have been discriminated against because of your status as a mother, you might want to speak to an attorney who is knowledgeable in workplace discrimination. This qualified legal professional can assess your case and let you know whether you have a solid discrimination case against your employer. Check your company’s personnel department to determine whether they have adopted leave policies or practices which appear to treat employees with and without children differently, and speak to co-workers to determine whether others with children feel they have been discriminated against.
November 11th, 2012
Within the past month, the Equal Employment Opportunity Commission settled one pregnancy discrimination suit and filed four more. These actions occurred soon after the Federal Government announced a plan to punish employers who are convicted of illegal discrimination against women who are having a baby. One of the suits involved a Texas restaurant chain which allegedly fired multiple female employees who announced their pregnancy. The EEOC charged in this case that the company’s employee handbook actually instructed managers to fire any employee who became pregnant by the third month of her pregnancy. Another suit was from a restaurant in Florida who fired two waitresses who announced their pregnancies. The manager claimed the pregnancies turned the waitresses into company liabilities.
Unfortunately, women being fired for being pregnant are far from uncommon with many employers penalizing women for having children. Government intervention in the case of employment discrimination against pregnant women is important because in many cases the employer who terminated the worker has access to significant amounts of information the worker may not. In fact, in some cases the woman who has been let go due to pregnancy may not even be aware she is being illegally discriminated against. Lower wage workers in particular may be afraid to assert their rights during acts of illegal discrimination and tend to be more vulnerable to retaliatory acts by their bosses. The recent acts of the EEOC have put employers on notice that it is not okay to fire pregnant workers.
In fact, the EEOC is letting employers know that pregnant women must be offered the same accommodations as others with temporary injuries. The Pregnancy Discrimination Act prohibits discrimination based on pregnancy, childbirth or any medical conditions which are related to pregnancy or childbirth. Pregnant women are afforded protections related to hiring, pregnancy and maternity leave, health insurance and fringe benefits. A pregnant woman (who is qualified for the position) cannot be refused a job due to her pregnancy or because clients, customers or co-workers may have certain prejudices regarding her condition. Employers are prohibited form singling out conditions specifically related to pregnancy in their determination of an employee’s ability to work.
If a pregnant employee cannot perform specific job duties because of the pregnancy, her employer must treat her exactly as any employee with a temporary disability would be treated. Tasks must be modified, alternative assignments offered or disability leave offered. So long as the employee can successfully perform her job, she must be allowed to continue to work, and the woman’s job must be held for the same amount of time as it would be in the case of an employee on sick or disability leave. Employer-offered health insurance must include coverage for any condition related to pregnancy and the same level of health benefits must be offered for male employee spouses as for female employee spouses. It is unlawful to limit pregnancy benefits to those who are married and if the employer routinely provides benefits to those workers who are on leave, pregnancy-related conditions must be similarly covered. If you believe you were discriminated against based solely on your pregnancy, you must consult a knowledgeable employment attorney at the earliest possible time.
October 26th, 2012
If you believe you have been wrongfully terminated, there are several very important steps you must take. First and foremost you must determine whether you live and work in an “at-will” state—which is basically every state except Montana. At-will status gives your employer the right to terminate your employment however they still cannot engage in illegal, wrongful termination. Next, do you have an employment contract, and if so, can you locate it and determine whether that contract spells out a specific termination process. If you signed an employment contract, there is likely a termination process which your employer is legally obligated to follow as well as certain rights afforded you regarding the termination process.
Was Your Termination Illegal?
If you want to win your wrongful termination suit you and your attorney will need to prove your termination did not follow legal channels. Were you discriminated against by virtue of your race, gender age, religion, disability or national origin and did this discrimination lead to your termination? This is crucial information which must be documented and included in your lawsuit. Were you terminated as an act of retaliation? In some cases employees report their employer to authorities for the violation of a law, because they committed an illegal act or because the employer demanded their employee perform a task which was illegal.
If you were terminated because you “blew the whistle” on your employer you have the basis for a wrongful termination lawsuit. Once again, your documentation of illegal acts must be impeccable. Did your employer make slanderous remarks about you which eventually led to your termination? You will likely need witness corroboration and careful documentation to prove this. If you actually quit your job, but feel you were forced to do so because your working conditions were unbearable (such as harassment on the job) then you may be able to claim constructive discharge and win your wrongful termination lawsuit.
If you believe you might be terminated—or even if you have no reason to think termination is imminent-you can never go wrong keeping meticulous records regarding your employment history. No matter what really happened, your employer is likely to claim you were terminated for a specific reason—your work was substandard or you violated a company policy. If you have records which definitively prove the contrary you are way ahead in your lawsuit for wrongful termination. Keep copies of every performance review you received and any other documentation which proves you were a good worker who was solid and dependable. Keep copies of any memo, note or e-mail you send to your employer or other co-workers as a matter of course—and never, ever send an e-mail while you are angry or upset.
A general “diary” of your day-to-day employment history can be invaluable. Most particularly, notes of any type of discrimination you have suffered or talks you had with your employer or other employees could all end up being very important. Keep all your important papers together at your home in a secure place. If there were witnesses to discrimination against you, get witness statements and find out if other employees were treated in the same manner. Create a timeline of important events; your attorney will thank you. Review your personnel file occasionally and make copies or take notes on anything you don’t have in your records. Keep all paperwork organized and easy to find and if you find yourself on the receiving end of a wrongful termination you and your attorney will be extremely glad you did.
September 17th, 2012
Millions of workers go to work each day in coal mines where they are exposed to some form of coal dust all day long which puts them in danger as the dust is hazardous to their lungs. Most of these employees were provided with dust masks for their protection and told the masks would prevent them from breathing in the hazardous coal dust. Employees believed these statements of safety and relied on the masks to protect them from the deadly Black Lung disease. Unfortunately, many of these masks failed to meet the standards required for coal dust exposure; although they efficiently trapped the larger particles of coal dust, the smaller—and much more hazardous—coal dust particles traveled through the mask, settling deep into the lungs of the employees. What this means is that the majority of coal miners were exposed to dangerous levels of coal dust for literally decades, causing them to develop serious or fatal diseases. When these miners began speaking up for their health, they found they were seriously discriminated against, or even let go from their job.
Many miners have had their jobs reinstated after they filed discrimination charges against their employer. These miners were suspended, laid off, discharged or had other adverse action taken against them as a direct result of their black lung illness which was brought on by their work in the mine. The Federal Mine Safety and Health Act of 1977 ensures miners cannot be let go from their job or discriminated against in any way simply because they have filed a complaint which alleges health or safety violations in the workplace. Miners have the right under this Act to refuse to work under such conditions. Miners are given the right to a safe workplace as well as the right to identify hazardous working conditions without fear of retribution or discrimination.
The Upper Big Branch Mine Disaster
The Upper Big Branch Mine disaster which occurred in April of 2010 in Raleigh County, West Virginia, took the lives of 29 miners and is considered the worst in the United States since 1970. An investigation would later find that blatant safety violations on the part of Massey Energy was responsible for the explosion and the Mine Safety and Health Administration issued 369 citations and assessed Massey Energy $10.8 million in fines. At this juncture there remain investigations into potential personal criminal liability. This particular explosion brought to light many issues regarding miners’ fears of retribution and discrimination and their reluctance to speak out regarding flagrant safety violations in their workplace.
Black Lung Benefits Act
The Black Lung Benefits Act makes it possible for miners stricken with Black Lung Disease to receive monthly payments and reimbursed medical treatments for those miners who are disabled due to the disease. Miners may also be entitled to receive compensation based on the number of their dependents and survivors of those miners who died due to Black Lung Disease may be eligible for specific payments. Both current and former coal miners including those who were involved in the construction of coal mines or in the coal transportation industry—if they were exposed to coal dust in the course of their employment—may be eligible for benefits. Surviving dependents are also entitled to file claims for Black Lung benefits. The Act will cover medical, surgical, hospital and nursing care, rehabilitation treatment as well as drug and any equipment expenses.
If you work in the coal mine industry and feel you have been discriminated against because you spoke out against safety hazards you should consult an attorney who has experience in this area who can speak out on your behalf and help you through this difficult time.
August 14th, 2012
Perhaps the most important thing you can do once you begin to have an idea that you could be terminated is to begin keeping meticulous records and documentation. This is crucial should you decide to proceed with a wrongful termination claim in order to accurately portray what events took place. Records like these can also be helpful whether you apply for unemployment and your previous employer challenges the claim. Some states require that your employer give you access to the bulk of your personnel files excluding any extremely confidential records. Once you have your personnel file in hand, ask for copies of your employee reports, job performance reviews or anything you think could possibly be important. Make a list of the documents inside in case your supervisor later tries to say a report doesn’t exists—or adds a new document.
Document the Termination Process
Keep careful documentation of your entire termination process including the date, the time, where you were when you were terminated and the names and addresses of all people who were even marginally involved in your termination. Additionally, have a record of your salary increases or decreases since you have worked for the company, any negative or positive employer evaluations and even notes of the most casual comment made to you by supervisors or employers in regard to your job performance.
All your records should be kept in a secure place with backups if possible. Particularly in our current shaky economic climate employees are laid off nearly every day. Most employees are protected by employment laws which mandate specific process for termination. Those who feel they have been wrongfully terminated could possibly bring a claim against the former employer. Of course not all wrongful termination cases end up in a settlement, but if yours is successful, you could be eligible for back pay, punitive damages, job reinstatement, other damages and even your lawyer’s fees.
Do You Have a Solid Case?
If you believe you were terminated in an act of discrimination regarding your age, race, gender, disability, national origin or religion you could be eligible to file a wrongful termination suit. Should you have been terminated after you complained about some form of harassment or discrimination you could have a solid case or if you believe you are being retaliated against because you filed a grievance against your employer. Should you have taken off work for military service, voting, the hospitalization or illness of one of your children or your own serious, long-term illness and were terminated for any of those reasons then you could have grounds to sue your employer.
If you think your employer violated their own employee policies by terminating you or if you were fired for organizing a union you could have a solid lawsuit. If you were a long-time employee and now have reason to think it could be a lengthy amount of time before you find comparable employment then you may be able to claim you suffered significant economic harm from the termination. Finally, if you have endured emotional trauma because of your harmful treatment at work you may be able to claim wrongful termination.
July 10th, 2012
Imagine you are among the over-fifty crowd and are in the middle of a job interview when your prospective employer asks you how old you are. While you would likely be caught off guard and mutter the answer, you might be wondering in your head if it could possibly be legal to be asked such a question. The answer is yes—and no. Most of us believe that due to the Age Discrimination in Employment Act, the age question is illegal—not to mention rude. In fact, the question itself of how old you are is legal for employers to ask of those who are under forty. This, of course, begs the question—how will your prospective employer know you are under forty if they don’t ask your age? It also allows employers trying to circumvent the ADEA to ask the question under the guise of “I thought he/she was younger than 40,” while still getting the answer they want.
The ADEA offers protection to those who work in companies with more than 20 employees from age discrimination. This means that in a small company scenario you could—quite legally—find yourself being asked your age or the year you were born or which year you graduated from high school. Some job applications will include a space for DOB with a disclaimer attached. Before you find yourself in the middle of an interview being asked the age question you should know what you will say and how you will react as well as what your legal options are. Unfortunately a large part of what we know about age discrimination in the workplace is ambiguous at best. Most of those over the age of fifty believe that age bias is a simple fact of life and that there is little to be done about it.
Things You Cannot Do When Faced With a Discriminatory Employer
You cannot compel a potential employer to communicate with you regarding why you were passed over for a job, and you can’t dictate the company’s hiring decisions or behaviors. In other words should staff reductions be occurring at a business, the older and longer-service employees may be the first to go by virtue of the fact that they receive better pay and have higher healthcare and retirement costs associated with their employment. This is permissible when it’s based on finances so long as age is not the basis for the decision–you can see the vagueness of such dictates.
Unless you have enough evidence to prove age played a part in hiring or promotional decision, you cannot challenge management’s authority to make employment decisions. Employers are also permitted to establish legitimate job qualifications and they are allowed to refer to age in a roundabout way under certain circumstances. For instance, the job requirements may ask that the employee be able to routinely lift packages up to 70 pounds. This would tend to disqualify a sixty-two year old woman, yet is not considered age discrimination.
What You Can Do About Age Discrimination
The best thing you can do when faced with age discrimination is to know and understand your rights, to meticulously document every single instance of age discrimination and to hire a qualified employment attorney who can evaluate your potential case and assist you in filing a lawsuit for age discrimination.