Category Archives: employment law

What Does Supreme Court’s Warehouse Workers’ Ruling Mean?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?

First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.

Prior results do not guarantee outcomes.
Attorney Advertising.

Did a Local Manufacturer Violate Federal Law with a Sudden Layoff?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employees at the Store Kraft plant in Beatrice, Neb., were stunned to find out on Monday morning that Monday would be their last day on the job. Such short notice may be against federal law and entitle the laid-off workers to back pay and benefits for up to 60 days.

Under the WARN Act (Worker Adjustment and Retraining Notification Act), employers of more than 100 employees are required, in most instances, to give workers 60 days of notice in the event of a plant closing or a mass layoff.

Press coverage of the plant closing appears to show that Store Kraft is roughly at 100 employees. If Store Kraft had more than 100 employees, then it is very possible that their former employees may have a case under the WARN Act. The closing of the Store Kraft factory is devastating for its workers and hurtful to Beatrice and the surrounding community, but former workers may have a claim against Store Kraft for the abrupt manner in which the employer shut down the plant.

Prior results do not guarantee outcomes.
Attorney Advertising.

Can I Get Fired For Filing Bankruptcy?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Low and middle income people are the last people to benefit from any economic recovery. For many economic recovery means a return to work the opportunity to put their household finances in order with steady income provided by a job. Unfortunately unpaid debts often mean that employees get garnished  or even having to file bankruptcy.

Congress intended for bankruptcy to allow for people to get a fresh start so they prohibited discrimination based on bankruptcy and even let employees sue employers for such discrimination. But this law is not as strong as other laws prohibiting discrimination on factors such as race or sex for two reasons.

First of all, your status as a debtor in bankruptcy must by the sole cause of job loss. Discrimination is difficult enough to prove already under either a motivating factor or proximate cause standard, sole cause is more exacting than even the difficult proximate cause standard. If your employer has any other legitimate reason to fire you besides your bankruptcy, then a court will likely find the termination was lawful. The only way for an employee to preserve any type of discrimination case is not to give the employee a reason to terminate them because of their poor performance , attendance or poor attitude. But even good employees can get fired legitimate reasons such as restructuring and economicreasons.

Secondly most courts do not believe that bankruptcy discrimination prohibits employers from failing to hire employees based on bankruptcy.

Title VII and most state anti-discrimination laws state that a failure to hire based on certain protected categories is unlawful activity.

Finally in any discrimination claim, the employer needs to be aware of your protected status. In a bankruptcy discrimination case this means that your employer had to have known about your bankruptcy status prior to firing you. Some employees get fired because  employer doesn’t want to deal with a garnishment.  Most people, me included, think that such an action is wrong or unfair. But unless your employer knows that garnishment is linked to your bankruptcy status, then firing you based on that garnishment is legal  – unless the garnishment is a cover or pre-text for another unlawful reason.

I would encourage anyone reading this post to contact their U.S. Senator or Congressperson and ask them to change the bankruptcy discrimination statute to mirror other federal anti-discrimination laws such as Title VII.

Prior results do not guarantee outcomes.
Attorney Advertising.

Six Tips for Safe and Fair Holiday Employment

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

This time of year, many people get holiday jobs to earn extra money. That means some people will get injured at work and run into other difficulties working holiday jobs. Here are six tips on how to deal with the workplace challenges arising from holiday jobs. These tips for safe and fair employment apply just as well to any second job, not just a holiday job. 

  1. Just because you have a “holiday job” doesn’t necessarily make you a seasonal employee: In some states, including my home state of Nebraska, employees can have their benefits reduced if they are a “seasonal employee.” However, even if you have a holiday job, your job may not be seasonal. In Nebraska, “seasonal employment” is defined as a job that is dependent on weather or can only be done during certain times of the year. For example, if you hurt your back working at an electronics store at your holiday job, that employment is not seasonal because you can work at an electronics or really most any retail store at any time of the year.
  2. You can’t be paid workers’ compensation for how your holiday or second job affects your regular job: If you are off work at your regular job because of an injury at your second job or holiday job, you are only paid income-replacement benefits for the income you lost at your holiday job or second job. For example in Nebraska, if you were hurt at your holiday/second job that pays $120 per week and you are unable to do your regular job that pays $600 per week, your only income benefit would be two-thirds of your second/holiday job, which would be $80. Employees should be extra cautious in second jobs or holiday jobs for just that reason. Employees should also consider applying for private disability plans if they plan on having a second job in order to account for the possibility of losing income due to an injury at their second job. In short, employees should do a thorough cost-benefit analysis before taking a holiday job or second job.
  3. Your permanent disability benefits could be better than your temporary benefits: In full-time employment, permanent and temporary disability benefits are generally fairly close. But with part-time employment, permanent disability benefits may be much higher than temporary benefits. In my state of Nebraska, temporary benefits are paid based on a typical work week. For example, if you are a part-timer working 12 hours a week at $10 per hour, your temporary disability pay would be $80 a week. However, in Nebraska and some other states, permanent disability is based on no less than a 40-hour week. So if you are a part-timer getting paid $10 per hour, your permanent disability rate would be $266.67 per month. This is good for employees, because serious injuries will usually have permanent effects that can permanently affect an employee’s ability to earn a living.

    If you are an injured part-time worker and your insurance company is trying to force you to take a settlement based on your part-time wage rate, you should consult with an attorney in your state.

  4. Your employer/insurer may be low-balling your wage rate: Say you get paid $8 an hour as a barista but you have an agreement to share tips, or you work in retail but you get store credit, or you teach exercise classes at a health club but you have an agreement that you get a free membership. In any of those scenarios, you could possibly use those benefits to increase your loss-of-income benefits. 
  5. You are still protected by most fair-employment laws: Part-timers are still covered by most fair-employment laws. The most glaring exception is likely the Family and Medical Leave Act (FMLA), which provides 12 weeks of unpaid leave and job protection for employees with a serious health condition, to care for a close family member with a serious health condition, or take care of a close family member who is affected by a military deployment. FMLA requires 1,250 hours worked in the last calendar year and 1 year of employment. That 1,250 hours a year translates to roughly 24 hours a week. Many people working second jobs don’t meet the eligibility standards for FMLA. 
  6. Independent contractor, independent conschmacktor: Many holiday employees do fairly low-wage work that doesn’t require any specialized training or education. If this describes your holiday job or second job, then you are an employee, despite the fact that your company may have classified you as an independent contractor. Since you are an employee, you should be covered by workers’ compensation law. If you are misclassified as an independent contractor, you should look for other employment and consider reporting your unscrupulous employer to the United States Department of Labor or to your state’s department of labor.

Prior results do not guarantee outcomes.
Attorney Advertising.

What Football Can Teach White-collar Employees About Layoffs, Severance

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

With football season upon us, I would like to use football to explain some common situations that employees face.

I get a lot of calls from white-collar professionals who have long careers with a company but then are laid off a few months after a new boss is hired. This happens a lot in football when a general manager/athletic director replaces a head coach and the head coach fires the previous coach’s assistant coaches. White-collar employees in middle-management positions are essentially the equivalents of assistant coaches in football. In the world of football, it is assumed that a new head coach can bring in his new assistants. The same assumption holds true in the business world.

Assistant coaches are oftentimes “bought out” of their employment contracts. Sometimes white-collar professionals have employment contracts, but more often than not they do not. Sometimes professionals are offered severance agreements, but unless there is an employment contract, that severance is not a buyout. Employers are also under no obligation to offer severance. If severance is offered, that doesn’t necessarily mean that an employer wrongfully terminated the employee.

Of course, no employee can be terminated because of age, disability, sex, race, nationality, or in retaliation for engaging in a protected activity like filing for workers’ compensation or filing with OSHA. But even if there is some appearance of wrongful motivation on behalf of the employer, the employer can still defeat a potential lawsuit if they have a legitimate business reason for terminating the employee. Going back to a football analogy, if the new head coach wants to switch an offensive or defensive scheme, they have the right to hire the person they choose. The fact the new hire might be less effective than the old hire is not a decision that a court will second guess in a wrongful termination. Sure, if there is something else wrongful going on, it is something a court or a jury could consider, but in a case where there is a recent change in management, employees will have difficult time overcoming the assumption that the new boss just wants to “put in their team.”

Prior results do not guarantee outcomes.
Attorney Advertising.

Senior Care Workers Are Victims of Wage Violations

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

I found a recent story from California very troubling. The nation’s largest assisted living company agreed to pay $2.2 million to settle claims for underpayment and mistreatment of the workers who take care of the elderly. Lack of proper overtime pay, lack of mandatory meal and rest periods, and improper payment of mandatory training are examples of the mistreatment. 

The victims were the least-paid workers who did the hardest physical labor, according to the story. These people who bathed, fed, and provided the most hands-on care for our frail, elderly loved ones were denied wages and overtime pay for 7 years, according to the terms of the settlement.

Care for the old, frail and disabled is big business. Nearly 750,000 people are receiving assisted living care, according to the ProPublica article. And the industry is just going to expand, as folks are sicker but have higher expectations for care, while also living longer, according to this article from NPR. 

Fair treatment of our elders’ caregivers is essential. The wages are low, as most difficult jobs often are. Violating employment rules and statutes for businesses to save money and make larger profits seems particularly offensive for these workers. And they are not often protected from or informed of the hazards of their jobs, many of which can have serious consequences for workers’ health and well being, according to these blog posts from respected colleague Jon Gelman, an attorney in New Jersey: Protecting Healthcare Workers is a Goal of NIOSH and NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers.

Congratulations to the workers and their representative who stood up to this very large employer that has around 500 facilities in the United States. It takes courage and tenacity to fight battles like this.

All of us who care about workers need to be aware that these are battle worth fighting. And that these battles can be won.

Prior results do not guarantee outcomes.
Attorney Advertising.