What is Sexual Harassment?

Surprisingly, many perpetrators of sexual harassment say they were unaware that their actions fell under that category. Sexual harassment is any unwelcome verbal, visual or physical conduct with sexual overtones which is ongoing, severe or pervasive and affects working environments or leads to hostile work conditions. In other words, if the person the conduct is directed towards doesn’t see it as unwelcome, then it is not sexual harassment no matter how pervasive. For this reason there should be a statement, both verbally and in writing which says very clearly that the behaviors are offensive and unwelcome. Comments about the clothing worn by another, their behavior or their body are all considered sexual harassment as are jokes of a sexual nature. Repeatedly asking a co-worker or employee out even after being told no, requesting sexual favors or even spreading rumors about another person’s personal life can all be considered sexual harassment.

Physical sexual harassment includes patting a body part of another person, hugging or kissing them without their consent or even preventing them from walking past you to another room. Sexual harassment can also be nonverbal or visual; looking at another person’s body in an obviously suggestive manner or making facial expressions which are sexual in nature are considered sexual harassment. Sending another person e-mails, photos or drawings which depict sexual acts or tell sexual jokes is considered harassment as well. Finally, suppose a male office worker is the only male on the floor in a primarily all-female assistant job, and the females continuously play non-funny pranks on the man. Although this behavior is not overtly sexual, it can be considered sexual harassment nonetheless.

The Harassment Must Be Severe and Pervasive

The actions of the person who is harassing another must be severe or pervasive to be considered sexual harassment, meaning one incident—unless it is extremely severe—would not be considered sexual harassment. So, if a co-worker sent you one inappropriate e-mail but never did it again, there would likely not be grounds for a sexual harassment claim, although a single incidence of attempted rape most certainly would. By the same token if a co-worker asked you out once and you declined, even if he or she asked you in an offensive manner it doesn’t meet the standard of sexual harassment unless he or she continues to ask you out every day despite your refusal.

No matter the specifics of your situation, sexual harassment is against the law and there are stiff penalties in place for those convicted. If you are the victim of sexual harassment it’s important that you contact an attorney who can help you explore your options and decide what course of action to take. If you have been falsely accused of sexual harassment you also must contact a skilled criminal defense attorney who can protect your rights and your future while fighting aggressively to have the charges dismissed.

Most managers and supervisors didn’t get their job because of their extensive knowledge of employment law but rather because of their competence or skill at their job duties.  However, as managers and supervisors they now make decisions and take actions every day that can be subject to all sorts of employment laws. Decisions on hiring, discipline, pay, reviews, termination, leave, duties or job assignments and many other things can impact employment laws ranging from the Family Medical Leave Act to discrimination, wrongful discharge and sexual harassment.  Being uninformed about these laws can lead to devastating results for a company even when acting in good faith.

It is critically important that managers and supervisors at all levels, and especially front-line managers and supervisors, be properly trained on the fundamentals of employment law. Experience has shown that some of the most egregious employment law problems for a company often have their roots in the interactions between the employee and his or her immediate or department supervisor.

We have conducted employment law seminars for all types of businesses all over the United States, from Minneapolis to New Orleans and New York to San Francisco, as well as right here in the greater Kansas City area and  throughout Kansas and Missouri.  A common issue with those who attend the seminars, regardless of their location or the type of business, has been the inability of front-line managers and supervisors to spot potential employment law problems in time to prevent a problem from either occurring or getting bigger.  It cannot be overstated how important it is for these managers and supervisors to be properly trained to spot these issues.

We often tell businesses that it is not nearly as important that the managers and supervisors know the answers as it is that they know the questions. By that we mean they need to have enough knowledge to at least ask whether something might be a problem under a particular law. Experience has again shown that if these issues can be spotted early enough, very often they can be prevented entirely or at least dealt with early enough that they don’t get out of hand and become even more costly.

Our employment law training is designed to be understandable and, hopefully, even enjoyable by managers and supervisors without a great deal of education or experience in employment law.  We present these fundamentals in a straight-forward, easy to understand manner and then use real case examples (many of them amusing) to illustrate how the law works in actual cases.  Our training can be tailored to your needs and can be structured to fit the time you have available.  Because we believe this training is so important to preventing legal issues for businesses, we offer it for a low flat rate, regardless of how many people attend.

If you’re interested in having employment law training conducted for your business, please contact our office and we’d be happy to discuss it with you further.

• Sole Proprietorship
• Partnership
• Limited Liability Company (LLC)
• Corporation (C-corp)

There are various advantages and disadvantages to each, and the choosing the correct entity to form depends on a variety factors.  Also, there is another category called a “professional corporation” or “professional association” that are used only by certain professionals such as doctors, lawyers, accountants and others.  There are also limited liability partnerships and other variations on these entities.

Also, the IRS can tax business entities in different ways.  Often we are asked by a client to “form a sub-S corporation.”  However, one doesn’t “form” a sub-S corp.  That is a designation made by the IRS.  Generally, either LLCs or C-corps can be designated as a sub-S corp.

There are also not-for-profit or non-profit corporations that are governed by different rules.

In order to decide which entity is best for your particular business, consult with your attorney.

Discrimination is only illegal if it is based on membership in a protected class.  The main protected classes are as follows, but there can be some variation by state or even city:

• Race
• Color
• Sex
• Religion
• National Origin
• Disability
• Age
• Citizenship
• Genetic Information (new)

There are two basic types of discrimination:

Disparate Impact.  Treating people exactly the same can be discrimination!  To prove that disparate impact discrimination has occurred, the following must be shown:

• Proof that practice limits employment of protected class
• Employer must prove that test or policy is for a job related business necessity.
• Employee must prove that a less restrictive alternative exists.

Example:    Fire department hiring new firefighters.  To be eligible, all applicants must take a physical strength and agility test by running an obstacle course where they drag hoses, climb ladders and chop down doors.  6 out of 10 men pass the test, but only 2 out of 10 women pass it.

Disparate Treatment.  This is the type of discrimination most people think of when discrimination is discussed.  It is treating people differently based on their protected class status.  To prove disparate treatment discrimination has occurred in hiring, the following must be shown:

• Member of a protected group; and
• Applied for and was qualified for job; and
• Was denied employment; and
• After denial of employment, employer continued to seek applications.

By far the most common use of an injunction in those situation is for an employer to attempt block subsequent employment by one of its current or former employees by an employer when it believes that employment violates such an agreement. However, most employees don’t realize that it is also possible for them to seek injunctions against their current or former employers to stop them from interfering with employment by a new employer in the right circumstances.

Injunction cases are very heavily fact-dependent, and injunction law varies from state to state, and those variations can be significant.  Further, judges have considerable discretion in how they handle injunction cases, and two judges may approach the same case differently.  The purpose section is to explain only in very broad terms what an injunction is and the basic procedures that are used in obtaining one.

An injunction is essentially designed to prevent a harm from occurring which would be difficult or impossible to remedy through payment of damages or through some other legal remedy. Injunctive relief is to prevent future wrongdoing, not to remedy past wrongs.  Injunctions are considered “equitable” remedies rather than legal remedies, and therefore use different standards.

The litigation of restraining orders and injunctions can be a time pressured process involving many of the same considerations as a trial on the merits. An injunction may either compel or prohibit a party’s future action.  There are three primary phases in the injunction proceedings, though in some circumstances different phases may be combined or omitted:

1.    Temporary restraining order;

2.    Preliminary or temporary injunction; and,

3.    Permanent injunction.

In some states, a temporary restraining order may be issued without notice to the other side and without a hearing, while other states require a hearing before issuing a temporary restraining order. The temporary restraining order and temporary or preliminary injunctions are temporary orders, while the permanent injunction is a permanent order going forward.

Also, in some cases it is necessary to post a bond before the temporary restraining order will be issued.  In some circumstance the requirement to post a bond may be waived.  The purpose of the bond is to pay damages to the party restrained or enjoined in the event it is determined that the restraining order or injunction was wrongfully issued.

The party moving for a restraining order must show that they are entitled to the relief requested, that they would be caused “irreparable” harm, and that there is no adequate remedy at law to address the injury . An applicant for a temporary or permanent injunction must generally establish a that there is a substantial likelihood of prevailing on the merits.  These requirements can require an extensive analysis that is beyond the scope of this section, but it would be a big mistake to simply assume that a party does, or does not, meet these requirements until that analysis is done.

The process for obtaining a restraining order or injunction is started by filing the appropriate pleading in the right court.  A temporary restraining order issued without notice to the other side is called an ex parte restraining order.  An ex parte restraining order may be issued by the court immediately in those instances where a hearing is not required, but courts have considerable discretion in that regard.  If the court chooses not to issue an ex parte restraining order, the court will normally set a hearing very quickly.  Sometimes when a hearing is held, the court will issue a temporary injunction rather than a temporary restraining order, with the difference being that temporary injunctions are ordinarily longer in duration than a temporary restraining order, and can last the duration of the case until a permanent injunction is issued or denied.

The issuance of a temporary (sometimes also called preliminary) or permanent injunction may each require a separate hearing.  Each hearing held (whether it’s for a temporary restraining order, temporary injunction or permanent injunction) is essentially a mini-trial  with evidence presented in the form witness and documents.  Discovery is conducted as with any other type of litigation, though the time frames for completing this discovery can be greatly accelerated in some circumstances.

Because of how fact-specific these cases are and because of the variations in the law between different jurisdictions, the ability to obtain a restraining order or injunction can only be determined by an attorney with knowledge and experience in this area of the law.  There is considerable misinformation among the general public about temporary restraining orders and injunctions, and it should never be assumed that a party can, or cannot, obtain an injunction (or defend against one) until this review has been done.

How Common is Discrimination for Pregnancy?

Although this surely sounds as though pregnant workers are fully covered against discrimination, the truth is that discrimination is fairly common. The fact that pregnancy discrimination claims have risen steadily over the past decade—at a much faster rates than other types of discrimination claims—is proof that pregnant women have been the victims of unlawful treatment in the workplace. In fact the number of pregnancy discrimination charges filed with the EEOC is up over 50%. Since women make up over half of today’s workforce and because 85% of working women will become mothers during their working life, discrimination against pregnant women, while illegal, is certainly alive and well.

California’s Protection for Expectant Mothers

Unlike many other states California has gone the extra mile to protect pregnant workers with a law on the books which mandates that an employee at a business with more than fifty workers is entitled to 12 weeks of unpaid, job-protected leave each year to care for a new baby or a child who is ill or has a serious disability. The only qualification is that the employee must have worked at least 1250 hours in the past year. Further, the states Fair Employment and Housing laws require employers to offer reasonable accommodations for pregnant employees such as a limit on lifting heavy objects or frequent restroom breaks. Other states are not as progressive as California however pregnant women are nonetheless protected against the more obvious forms of discrimination.

Various Forms of Pregnancy Discrimination

There are many different forms of discrimination against pregnant women—in some cases supervisors will be somewhat subtle, giving expectant mother’s assignments which are next to impossible for them to accomplish, in hopes they will simply resign. Many bosses will fire a pregnant worker under guise of another reason which won’t get them sued, making discrimination charges harder to prove.  Many women who innocently disclosed a pregnancy during a job interview were passed over for employment, again, a charge which can be hard to back up. Of course some employers are blatant in their discrimination, refusing to allow a new mother to breastfeed at work, refusing any maternal leave or firing a pregnant employee stating the employee is unable to perform the regular duties of the job. Low income women are especially vulnerable to such acts of discrimination as employers recognize they may not be able to afford an attorney so feel they are above the law.

What Should You Do If You Feel You Have Been Discriminated Against?

If you feel you are being discriminated against due to your pregnancy it is very important that you keep very careful notes and records of all instances of such discrimination. Once you have documented the discrimination, tell your manager what is happening via a written account and verbally. Make sure you keep copies of everything you submit to your manager. Your employer is mandated under the law to protect you from pregnancy discrimination—if it is your manager who is participating in discrimination, move up the food chain and talk to someone higher in your organization. If there are any witnesses to the discrimination get statements from them making sure to record the time date and location of each incident. It is a good idea at this point to get solid legal advice from an experienced attorney so you will be fully aware of your future options.

While nearly every state has adopted some form of “employment at will,” meaning the employer has the right to terminate an employee with or without reason and the employee also has the right to quit with or without reason, there are exceptions to this doctrine.  Nearly all workers are afforded protection under state or federal law from any type of discrimination which stems from age, race, sex, color, national origin, disability, religion, retaliation or pregnancy. Certain states have also included discrimination based on sexual preference in that list. The law also protects employees from specific types of persecution in the workplace although such harassment must be considered discriminatory—in other words general harassment that does not fall under a protected category such as sex, age, race or disability is not specifically prohibited under law.

Instances in Which You Probably Should Sue for Wrongful Termination

1. If you complained about some form of discrimination or harassment and were terminated after your complaints, then you could have a wrongful termination suit.
2. If your employer terminated you in direct violation of a legal contract between you and your employer then you may have a wrongful termination suit.
3. If you were the victim of discrimination based on the criteria listed above, then you may have a strong case for wrongful termination.
4. If you filed a complaint against your employer for violation of a specific law—also known as whistleblowing—and you feel your employer is retaliating by terminating your employment, then you should consider a suit for wrongful termination.
5. If your employer terminated your employment because you took time off for a serious, long-term illness of your own, the illness of a child or if you took time off to engage in military service then you may have a wrongful termination suit.
6. If your employer asked you to perform an illegal or unsafe act, you refused and were fired, then you should speak to an attorney regarding a wrongful termination suit.
7. If you worked for many years at the company you were fired from, sustained serious emotional harm as a result of your treatment at work, or believe it will take a considerable amount of time to find comparable work, then you should speak to an attorney.
8. Finally, if you were fired for being involved in or organizing a union or if you your employer violated your company’s termination policy when you were fired, then you may have a solid wrongful termination suit.

Potential Reasons Not to File for Wrongful Termination

1. If you are suing for no other reason than getting even with the employer who fired you, then you should probably reconsider.
2. If you worked for your employer for a short period of time, then chances are you were not paid enough to warrant pursuing a wrongful termination suit. You must remember that the legal process is expensive therefore you must calculate whether the payoff will be worth the cost.
3. You must be able to prove that your case falls under one of the exceptions to the employment at will doctrine, meaning you must be meticulous in collecting clear and convincing evidence to support your case.
4. There is a statute of limitations in place for wrongful termination suits, which in many jurisdictions is one year. Seek legal advice immediately following your termination if you feel it may have been an illegal firing.
5. Remember that pursuing a wrongful termination case can be emotionally draining and often the results are not quite what you expected. You may also find it harder to obtain future employment should you decide to pursue your wrongful termination suit.

Your best course of action following what you believe to be a wrongful termination is to speak with a qualified attorney immediately to determine whether you have a strong case. Remember to keep careful documentation of your termination process in the form of a written record of dates, locations and other people involved in any significant event.

Under Kansas employment law, an employment relationship is differentiated from one of an independent contractor relationship by the amount of control exerted by the company over the manner in which the workers carries out their job functions.  In an independent contractor relationship, the company controls only the goals or results of the individual’s work but not the means of accomplishing those results.  Kansas law uses a number of factors to evaluate whether there is enough control exercised over the means of carrying out one’s job functions to constitute an employment relationship including:

• Whether the work is supervised at the job site
• Does the company supply the work equipment and job location
• The payment method hourly employee vs. commission or piece rate
• The actual control exerted by the company over the means of carrying out job duties
• The degree to which the work constitutes a separate occupation or business
• Skill level required for the work
• If the service is continuous or isolated
• Whether the services benefit the employer as an individual or a business
• The degree to which the service provider can make judgements that effect profit or loss to the service provider

Generally, the point is that an employment relationship exists if the services provided are an integral part of the ordinary business of the company, and the service provider is not offering an independent business or professional service to the company.  The ultimate classification is controlled by the actual conduct of the parties irrespective of any classification in a contract between the company and the service provider.

A growing number of companies are taking advantage of the economic benefits of classifying service providers as independent contractors.  There are substantial advantages for companies including shifting tax burden to the service provider as well as potentially avoiding the expense associated with unemployment or worker’s compensation benefits.

By the same token, the cost to a person providing services of being characterized as an independent contractor is extremely high.  The person must pay both income and self-employment taxes.  This effectively means that the service provider is covering the portion of FICA that would be covered by an employer in a traditional employment relationship.  The employee may also bear the risk of job loss or a job related injury.

Whether you are a service provider that is being incorrectly classified as an independent contractor or a company that is alleged to have misclassified your workers, 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.

However, on May 9, 2011, the US Department of Labor (DOL) just made it easier for employees to impose liability on their employers for mistakes or deliberate violations under the wage and hour laws. In a short press release, the DOL announced the launch of a free smartphone app, for use on an iPhone or iPod Touch, which allows employees to track hours worked for themselves, thus making it easier to prove hours worked and possibly overtime owed.

The app is available in Spanish and English and is available for download from the homepage of the Wage and Hour Division of the US Department of Labor.  The app makes it simple and easy for workers to track their rate of pay, work start and stop times, and arrival and departure times. The DOL stated that it is exploring updates that would enable the app to also work on other smartphone platforms, such as the Android and BlackBerry.

The press release can be found at http://www.dol.gov/opa/media/press/whd/WHD20110686.htm

The app can be downloaded at http://www.dol.gov/whd/

Employers are strongly urged to have a thorough evaluation of all of their wage and hour policies, including employee classifications, to avoid common but very costly violations of wage and hour laws. For more information about such a review, please contact our office.

I hope you find the blog information interesting and useful.  Thanks for visiting!