Maryland Governor Martin O’Malley has signed into a law that removing questions about criminal history from Maryland state job applications and postponing such questions until later in the hiring process. It is the latest sign that the nationwide movement to reduce unfair barriers to employment for people with criminal records is gaining momentum.
The New York Times has also editorialized on the need for this reform, stating:
Sixty-five million Americans have criminal records that might cause them to be denied jobs, even for arrests or minor convictions that occurred in the distant past. Last year, the federal Equal Employment Opportunity Commission reaffirmed a longstanding ruling that it was illegal to screen out employees unless the offense was directly related to the job
The problem, however, has become so acute that a growing number of states and municipalities have explicitly prohibited public agencies — and in some cases, private businesses — from asking about an applicant’s criminal history until the applicant reaches the interview stage or receives a conditional job offer. In addition, many jurisdictions now require employers to show that the disqualifying offenses are directly related to the position in question.
Laws or administrative directives of this nature have been enacted in 50 cities and counties and in eight states, according to a recent analysis by the National Employment Law Project, a research and advocacy group. Other states are joining the effort to remove unfair barriers to employment. Bills that would give ex-offenders a fairer shot at getting a job are pending in six state legislatures: California, Michigan, Minnesota, New Jersey, North Carolina and Rhode Island.
A federal court in New York is permitting an employee’s lawsuit to go to trial against her former boss who reached out, contacted her new employer, and got her fired. Under the legal theory of “tortuous interference with her employment contract,” employees can stop aggressive and vindictive former employers from interfering with their new gig and new life.
The U.S. District Court in Gentile v. Olan, No. 12-CV-3664 (S.D.N.Y. May 13, 2013), held that a linen saleswoman could sue her former linen boss for getting her fired, after the former boss jumped the gun and accused her of stealing clients, based on a single client mentioning some vague contact with her. Her new boss fired her, rather than deal with the ruckus.
This tortuous interference claim can be made when a former employer intentionally and improperly causes their former employee to be fired at her new job. While this claim sounds like it applies to employees with contracts, it protects all employees who work “at will” under a heightened intent standard that examines whether or not the employer acted with malice, or used wrongful means. At-will employees cover the gamut, and include the typical hourly worker.
In Maryland, the law is similar. For at-will employees, it is called “tortuous interference with economic relations.” For contractual employees like a teacher on an annual contract, or doctor at a hospital working under contract, it is called “inducing breach of contract.” Prudential Real Estate Affiliates, Inc. v. Long & Foster Real Estate, Inc., 2000 U.S. App. LEXIS 3394, at 9-10 (4th Cir. Mar. 6, 2000); Sirpal v. Fengrong Wang, 2012 U.S. Dist. LEXIS 97145, 7-8 (D. Md. July 11, 2012).
Lesson learned: Employees can fight back where a former employer harms them economically on thin facts. In Gentile v. Olan, the employer sent a cease-and-desist letter not just to the employee but to her new boss. This caused her to be fired, and the letter and an alleged underlining non-compete agreement lacked merit.
The Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance on the treatment of workers with caregiving responsibilities.
Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate against an individual on account of his or her sex, race, national origin, and/or color . In addition, according to the EEOC, it is unlawful under Title VII to discriminate against working male and female employees who have caregiving responsibilities. In the new guidance statement, the EEOC explains the need for creating protections for caregiving workers:
As more mothers have entered the labor force, families have increasingly faced conflicts between work and family responsibilities, sometimes resulting in a maternal wall that limits the employment opportunities of workers with caregiving responsibilities. These conflicts are perhaps felt most profoundly by lower-paid workers, who are disproportionately people of color. Unable to afford to hire a childcare provider, many couples tag team by working opposite shifts and taking turns caring for their children. In comparison to professionals, lower-paid workers tend to have much less control over their schedules and are more likely to face inflexible employer policies, such as mandatory overtime. Family crises can sometimes lead to discipline or even discharge when a worker violates an employer policy in order to address caregiving responsibilities.
To be covered by the law, the caregiving responsibilities may be to healthy children (not simply disabled children), disabled adults, elderly parents, elderly in–laws, and/or elderly spouses. As a caregiver, to establish that one has been unlawfully discriminated against one must provide evidence that the adverse action taken was based on your sex. An example of unlawful discrimination against a female worker would be where an employer started treating a female worker less favorably, such as providing her with less lucrative or growth oriented work assignments, upon finding out that she was pregnant or upon finding out that she had an elderly parent relying upon her for care. An example of unlawful discrimination against a male worker would be where a male worker was denied leave to care for children while a female worker in the same organization was not denied such leave.
So, if you think you are being discriminated because you are the caregiver for your family or due to an employer’s bias against employment caregivers, you should educate yourself as to your possible legal rights. To learn more, contact us at Lebau & Neuworth, LLC.
Recently the United States Court of Appeals for the Fourth Circuit, which Maryland is a part of, decided a case involving a request for short-term leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). In, Wilson v. Dollar General Corporation, Lamont Wilson suffered from an eye condition that required him to take six weeks of leave under his employer’s sick leave policy. On the day Wilson was set to return he presented his employer with a note from his doctor stating that Wilson would not be able to return to work for an additional two days. Unable to return to work, Mr. Wilson was terminated.
Mr. Wilson sued Dollar General for failure to provide a reasonable accommodation under the ADA. The district court found in favor of Dollar General finding that Wilson was not a qualified individual with a disability because no reasonable accommodation existed that would allow him to perform the essential functions of his job. The court of appeals ultimately upheld the lower court’s decision, but, in doing so, made two important statements.
First, the court of appeals stated, without deciding, that a reasonable accommodation request of two-day leave request is “not unreasonable on its face.” Second, the court points out that a request for “prospective leave to alleviate an intermittent disability presents unique challenges for the employee.” Namely, Wilson was required to prove that had he been granted the two days of leave Wilson could have performed the essential functions of his job, which included lifting and loading objects of varying weights. The doctor’s note that he provided was silent on whether he could perform any of his job’s essential functions. Indeed, Wilson failed to supply any evidence proving that, “had he been granted such leave, he could have performed the essential functions of his position on his requested return date.”
If you have been denied a reasonable accommodation request of short-term leave, and you believe your employer violated the ADA, you will have to prove that upon returning from the short term leave you would have been able to perform all the essential functions of your job. Such a showing can be made by submitting detailed doctor’s notes or vocational evaluations that establish your ability to perform ALL of the essential functions of your job. This can be difficult, as demonstrated by Mr. Wilson’s case. The attorneys at Lebau & Neuworth are experienced in advocating for, and, if necessary, litigating reasonable accommodation cases under the ADA and we may be able to help you. For more information, contact us.
The U.S. Department of Labor, Wage and Hour division, has continued its recent crackdown on the restaurant industry and its compliance with the Fair Labor Standards Act – the federal law governing wage-hour pay and tip issues. For example, last month a restaurant settled a case where restaurant workers received more than $115,000 in owed wages for overtime violations.
In addition, the Department of Labor is requiring strict employer compliance with the notice requirements of the tip credit rules under the Fair Labor Standards Act. The Department of Labor requires that employers provide tipped employees with notice of:
- The cash wage that the employer is paying to the tipped employee.
- The amount by which the wage of the tipped employee is increased on account of the tip credit claimed by the employer.
- That all tips received by the tipped employee must be retained by the employee except for valid tip pool arrangements limited to employees who customarily and regularly receive tips.
- That the tip credit will not apply to any employee who has not been informed of these requirements.
Therefore, you as a restaurant employee could be entitled to a significant amount of back wages if you were never informed of the above four items.
Tip pools are also usually permissible under Federal law, but tip pool participants cannot be management employees, dishwashers, managers or chefs. Some states prohibit tip pooling entirely. Restaurant employees should be cautious about any kind of tip pooling arrangement they are required to enter into and should not be hesitant to ask questions if they do not understand the amount they are being paid.