Patricia is one of the 52 farm workers that Human Rights Watch interviewed for a new report released Wednesday, this is her story;

Patricia M. came to the U.S. from Mexico when she was 21-years-old, and found a job harvesting almonds. On her third day, the foreman took Patricia to a remote field, where she says he tied her hands with her bandanna to the grip above the truck door, he then got on top of her, stripped her naked, and raped her.  Due to the fear of losing her job, Patricia kept silent, and continued to work at the same farm, “I was afraid they would put me in jail,” she said. “I was afraid they would send me back to Mexico, because I was illegal,” she states. Patricia soon found out she was pregnant, and it was then, she sought help from a social service agency.

Undocumented Immigrants are protected under the Federal and Florida law, which prohibit sexual harassment, and are entitled to workplace protection under U.S. law.   In the report, Human Rights Watch states that it appears that the federal government’s interest in deporting undocumented workers often outweighs its desire to protect them from abuse. Human Rights Watch calls for strengthened legal protections for immigrant farmworkers, not only for the safety of the undocumented workers, but also to seek prosecution of those who perpetrate such abuse.

If you feel like you have been sexually harassed, please contact us.

The Agency points to sociological statistics that show that people of certain races and national origins, are disproportionately arrested and convicted of crimes. The EEOC report stated. “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarnation rates remain unchanged, about 1 in 17 white men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and 1 in 3 for African American men.”

In light of this dynamic, last week the federal Equal Employment Opportunity Commission issued updated guidance on employers’ use of criminal records to screen potential employees. It emphasizes past statements, in hopes of convincing courts to go further in their treatment of misbehaving employers. The EEOC has made clear for more than 20 years, is that it believes it is dangerous for an employer to automatically bar an applicant from consideration simply because of a past arrest, or conviction. “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended,” the EEOC report states.

This EEOC guidance  memorandum states :

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way. Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested, that information should be used in making a hiring decision employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position based upon the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.

This is also true for a conviction. Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records, to those restricting the employer’s use of conviction data in making an employment decision.

The EEOC’s guidance, while important, does not present a comprehensive solution to the multiple barriers to employment facing people with criminal records.  Hopefully it will reaffirm to employers the EEOC’s position that selective and rational use of this information is required.

If you feel like you have been discriminated against, please contact us.

Happy Hour During Work Hours

“They say a man’s work is never done. They say you can’t mix business with pleasure. They say that good things come to those who wait.” — Anheuser Busch  Super Bowl 2012 commercial

The message is unmistakable: You can mix business with pleasure, and why wait until after work to have that first drink?

Interestingly enough, Anheuser Busch may be merely capitalizing on what is already an emerging workplace trend that is worth looking at. Consider the following:

Yelp Inc’s headquarters in San Francisco features a keg refrigerator that employees are free to use as much as they want. Yelp operates yelp.com, a social networking, user review, and local search web site that filed a $100 million IPO in November 2011. Eric Singley, director of Yelp consumer and mobile products, points to the fact that employees’ use of the keg is monitored via an iPad app as a way of discouraging excessive use. Lukas Biewald, CEO of CrowdFlower Inc, an employment company, justifies having a fridge full of beer by pointing out that the long hours put in by employees who work at companies like his means that social life and work life often overlap.

Twitter Inc. also stocks wine and beer in its office fridge (along with non-alcoholic drinks). “We treat employees as adults,” says Jodi Olson, a spokeswoman for Twitter, “and they act accordingly.”
EDPM, Inc is a company that specializes in providing drug testing and background check services. Its stated goal is “to assist clients in developing and maintaining their most valuable resources — their employees.” In commenting on the above trend on their corporate blog, EDPM pointed out that by following the Anheuser Busch suggestion and condoning drinking in the workplace (whether it is monitored or not), employers may be taking in some liability. “If an employee leaves work with alcohol in his/her system and gets into an accident, does the employer bear any responsibility?” they ask.

A Cool Trend?

Consistent with the above, Drs. Paul Roman and Terry Blum, writing for the National Institute of Alcohol Abuse and Alcoholism, report that the development of alcohol abuse prevention programs in U.S. workplaces has slowed considerably in recent years, despite the fact that such programs can be effective. They also cite statistics showing that about 8 percent of full-time employees self-report drinking five or more drinks on five or more occasions per month. It would not seem reasonable to assume that such drinking behavior would have no impact on employees’ productivity.

A lack of policy, combined with the absence of serious alcohol prevention programs and/or a corporate policy of tolerance may in fact be a slippery slope rather than a perk for many employees. In one survey of 6,540 employees at 16 workplaces representing a range of  industries, fully 23 percent of upper-level managers reported drinking during work hours in the prior month.  All of the above raises the question: Is making alcohol available at the workplace justified by arguments such as long work hours, the blending of work and home life, or the expectation that employees will act responsibly?

Lisa Holland worked as a data processing telecommunications technician.  In November of 2006, Ms. Holland informed her employer that she was pregnant. Several months later, she was transferred to the Help Desk.  Ms. Holland protested the demotion, and eventually she was transferred back to her previous position.  In June of 2007 Ms. Holland was terminated, and she proceeded to file a lawsuit.

The Court affirmed the correct standard in a Title VII discrimination case (implicitly finding that the Florida Civil Rights Act contains a cause of action for pregnancy discrimination). The Court then went on to find that a jury could find the Sheriff’s office discriminated against Ms. Holland by transferring her to a less prestigious position, even without a change in her pay.

If you feel that you have been discriminated against in the workplace, please contact us.

The American Arbitration Association has awarded a former Citicorp employee, $388,359.74 in back pay, as a result of unlawfully failing to pay her at the same level as her male peers.  While working for Citicorp, she performed the same job as her male predecessors yet earned roughly half as much in salary and bonuses.

The Claimant, filed her claim based on the Equal Pay Act, a federal law which requires that men and women in substantially similar positions receive equal compensation.  Equal Pay Act cases are less common than gender discrimination cases that are filed pursuant to Title VII and the Florida Civil Rights Act.

In addition to receiving the difference in pay between her compensation and that of her male peers, the employee was awarded an equal amount in liquidated damages.

If you believe you have a claim under the Equal Pay Act, please Contact Us.

The Obama administration announced it plans to extend minimum wage and overtime protection to more than 2 million workers who provide In-home care to frail and disabled people.

These people from health and personal care aides give baths, dispense medicines, cook food and run errands – increasingly complex tasks in a fast-aging society.  Many work for private agencies funded through public programs like Medicaid and Medicare.  Since 1974, the workers have been lumped in with baby-sitters as a class of “companions” exempt from the Fair Labor Standards Act.

“As the home care business has changed over the years, the law hasn’t changed to keep up.”  President Barack Obama said in a statement, “Employers are allowed to pay these workers less than minimum wage with no overtime. That’s just wrong in this country.”

Projections show the home care labor force growing to about 4.3 million by 2018, more than K-12 teachers, public safety employees, fast-food and cashier workers.  The change, which does not require the consent of Congress, would take effect next year after a public comment period.  Its impact will vary from state to state and from employer to employer.

Florida had about 130,000 such workers in 2010, earning an average of $9.42 an hour, according to the Paraprofessional Healthcare Institute, a nonprofit advocacy group.  The law would apply only to employees to companies, not to private arrangements.  Frank Stoker, president of Care Team Home Care of Tampa, welcomed the change.  His company already pays its workers $10 to $14 an hour with overtime, he said, but many of his competitors do not.  “This will take that unfair advantage out of this,” Stoker said.  “I don’t care who you are, you should be paid properly.”

 Source:  St. Petersburg Times

                  December 16, 2011