Archive for the 'Employment' Category

Firefighters Denied Workers Compensation

Dozens of injured San Jose firefighters have been denied workers compensation claims. Over the past several months, firefighters in the San Jose area who have been injured on duty have been denied workers compensation. These firefighters complain that they are not given the proper treatment and care that they deserve.

Workers Comp

Workers compensation is an essential component of the work force dynamic. It acts as a safety net for workers who are hurt on the job. Without such a system in place,  millions of workers will be left to support themselves and pay for their own insurance plans. Workers compensation acts as a substitute for insurance coverage. It is a form of insurance that compensates workers that are hurt on the job.

Under the California Labor Code, employers must purchase workers compensation on behalf of their employees.  Similarly, public agencies such as the Fire Department and the Police Department must provide workers comp for their employees. However, public employees are sometimes treated as contractors rather than actual employees. As a result, these public employees are denied workers compensation when they need it. Firefighter

Generally, workers compensation is an agreement between the employer and employee. The employer will provide for injuries and other related costs but, the employee will not have the right to sue the employer for negligence. This seems like a fair tradeoff. However, if the employer is mandated to provide workers comp and they do not, then they can be in legal trouble.  The deprived employee can seek damages through a civil court beyond the compensation that the employee was originally entitled to.

Moreover, the employee can go through their respective state fund to recover damages.  As mentioned before, a lawsuit cannot be commenced against the employer for grounds of negligence. The exceptions are if workers comp was not provided or if it is on discrimination grounds.

A Flawed System

The City of San Jose has wronged the San Jose Firefighters through Athens Administrators. The city contracted out its workers comp disbursement system to Athens Administrators, which has not provided for these brave firefighters in a number of instances. This is no good. These people are constantly putting their life on the line and the least the city could do is repay the favor. Some of the issues with the workers comp systems in place are logistical and not a question of outwards denial of the individual.

Logistically, it is sometimes difficult to keep track of every incoming claim. As a result, these claims are left out of the system and not tended to. The automated databases that collect and input the claims have flawed mechanisms that don’t always keep track of every incoming claim, resulting in unattended claims.

Additionally, Athens  has outright denied workers comp to firefighters because they didn’t feel the harm or injury was extreme enough. As one staff member put it, the “treatment was not medically necessary.” That’s not the point. Under workers comp, regardless of severity of injury, treatment should be given. It is absurd to think that a firefighter who has come in with bruises is denied because it does not come off as severe enough. Someone does not have to end up in the emergency room before assistance is given.

There need to be ground rules as to what is covered and what isn’t. Furthermore, the system needs to keep better track of each claim. As a number of firefighters have complained, the system neglects to even look at certain claims. Under state and federal law, workers comp is a right that belongs to workers. If this right is not upheld, then all is for naught. At the end of the day, the system is dictated by rule of law. If these laws are broken, then there have to be measures in place that will trigger a reaction that will ensure that the system is abided by.

Wearable Technology a Violation of Employee Privacy?

Performance-monitoring devices are become more prevalent in the workforce. These devices keep track of the day-to-day activities of employees in order to better gauge work performance. An ongoing concern is whether basic civil rights, in particular, right to privacy, are being violated through the use of these devices. These devices can be found everywhere. Even the police department has made use of body cameras to keep track of their police officers. How far can employers go in enforcing these devices?

The Good, The Bad, and The Ugly

There are many reasons why an employer would want to make use of such performance-monitoring devices. The first basic reason is that the employer will be able to manage the work efficacy of the employees. No matter what line of work they are in, the employer will be able to keep track of the individual’s work performance every step of the way. This is good and bad.

For one, the employee might feel uncomfortable knowing that their higher-ups will be able to monitor everything they do within that window of time. One other aspect to this that is often overlooked is that the employer may have a preconceived bias towards a certain employee (for whatever reason—race, gender, or even personal relationship with employer) that will cause employer to give more attention to that individual over other such employees. This is unfair because they will be unduly scrutinized for the same work done by others.  Camera

As for the positives, this new form of work surveillance, if you want to call it that, gives the employee incentive to stay on track and not fall behind. It will be a motivating force that will increase productive output. Furthermore, in the case of truck drivers and other such work responsibilities, it will keep them awake in the case of long working hours. A Rackspace study found that as a result of wearing these devices, employees are more productive and satisfied with their work.

Right to Privacy

Now to address the elephant in the room. What about basic civil rights violations? The biggest concern here is the right to privacy. Although the right to privacy is not expressly stated in the United States Constitution, it is referenced in a number of different contexts. The Fourth Amendment implies people have a right to be secure from any intrusions. Moreover, there is case law that strengthens this concept that has been in development for the past couple hundred years. Mass surveillance and privacy is an ongoing issue in various industries and it will remain at the forefront because the law in this area is vague and not clearly defined.

However, in general, it seems these performance-monitoring devices, although violating certain privacy rights, have enough benefits to them that it might not warrant stricter guidelines. Although employees are in a sort of panopticon (conceived by famed philosopher Foucault, a panopticon refers to a surveillance system where the person is constantly in fear of being punished), this new system works towards a better work experience. Whether the courts will take this into consideration remains to be seen.

As for the police force retaliating against the police department for abusing their rights, this is a matter that is not quite the same as a typical employer-employee dynamic. A police department is an arm of the government and as such, should be held to a higher standard. Unknowingly, police officers have been recorded with body cameras on their person. There has been outrage as a result. In light of recent police brutality that has garnered national attention, the police department has sought to make sure that their police officers are in compliance and do not act out of line.

This will speed up the evidence-gathering process if there ever comes a time when the officer is investigated for committing such activities. On the other hand though, there are privacy concerns. Should the police officer be obligated to wear such devices at all times? And it seems that the police department did not inform their officers of the use of such devices. One officer stumbled upon the body cameras. As this has been an issue that has received much press but little actual litigation, only time will tell what will come of this. The justice system needs to see this through.

Massachusetts Bans Employers From Asking About Salary History

Massachusetts has passed a law prohibiting employers from asking employees about their past salary history. This is a step in the right direction. Wage inequality has been an ongoing and unresolved issue in this day and age. In an era where employment opportunities are ample and there are federal laws in place that outlaw labor discrimination against women and other minorities, this type of wage disparity still exists and needs to be set aside once and for all.

Step in the Right Direction

Women’s rights has been a recurring issue in American history and politics for the past couple hundred years. From Seneca Falls to women becoming active participants in voting rights, this has been a nagging and ongoing topic of discussion with no end in sight. This recent Massachusetts law, along with similar laws enacted in other states, reinforces women’s rights and wage equality.

Although gender wage inequality is the problem posed here, such legislation helps other minorities as well. Federal law prevents gender-based pay discrimination yet wage gaps still exist. There are studies, including one from the United States Census Bureau that puts the average national salary for women slightly below their male counterparts. Piggy Bank

The new Massachusetts bill, aside from preventing employers from questioning salary history, also allows employees to share their salary with others. This not only puts the issue at the forefront, but also validates the issue. In other words, spreading the word about their respective salary, employees can gain an awareness of where they stand compared to others in the same line of work or similar profession. Furthermore, employees can better understand where they stand relative to others in their industry.

For example, if a programmer is receiving a salary and bonuses that is less than the average programmer in the same industry or particular niche, then this could be grounds for complaint for that individual. However, in light of this new piece of legislation and other such laws enacted elsewhere, this is without a doubt a step in the right direction.

Holding Its Own

Although this bill is a state-enacted piece of legislation, it has sent a ripple effect all throughout the country. Even though the Supreme Court is the law of the land, i.e., it governs all, state laws have dominion over their own borders unless Supreme Court says otherwise.

As mentioned before, although there are federal laws in place such as the U.S. Equal Employment Opportunity Commission, Equal Pay Act of 1963, and other like bodies of law, this state law has its own weight of authority and brings into focus the issue on a more personal level. This idea that employers cannot raise questions of salary history could work in a court of law because undoubtedly, this is the goal that we have been aiming for all these decades.

Since the end of the Second World War, women have sought better work conditions and more work opportunities, and rather than just be sit-in mothers. They want to be a part of the tour de force of society in building and assuming the roles of pioneers, innovators, and holding a position in society that is appreciated and will contribute towards the evolution of socio-economic values.

A Subsisting Problem

Hopefully, with this legislation and others, as well as SCOTUS stepping in to bring this much-needed change, we will be one step closer to achieving what the founding fathers strived for and what is rooted in our core values. Of course, this needs to be a group effort. Both major parties, as well as the judicial branch, need to play their part. Congressional Republicans have blocked passage of certain bills, such as the Paycheck Fairness Act, that would push for greater wage equality. For progress to be possible, politicians need to put their differences aside and work in unity for the greater good.

What We Should Learn From the Fox News Sexual Harassment Scandal

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”

-Gretchen Carlson, New York Times Interview (7/12/2016)

On July 6, 2016, newscaster Gretchen Carlson filed a lawsuit, alleging that she had been a victim of sexual harassment while working for Fox News. Ms. Carlson’s complaint asserts that Roger Ailes, the network’s chief, had made sexual advances and threatened adverse employment actions if she refused. She also claims that a 2013 pay cut and demotion were linked to rejected sexual advances.

Soon after Ms. Carlson’s filing, approximately another dozen women claimed they had been victims of Mr. Ailes’ sexual harassment. Mr. Ailes strongly denies any wrongdoing.

Subsequently, Mr. Ailes stepped down from his position at Fox News. (The network has indicated that Mr. Ailes’ departure is not related to the sexual harassment claims.) However, both he and Fox News may now face sexual harassment and employment discrimination claims from female employees. The related litigation may be extended, considering the number of potential plaintiffs.

Unfortunately, powerful individuals can use their reputation, influence, and celebrity to silence victims of sexual harassment. While we do not know all of the facts in the Fox News cases, there are some important lessons to be learned from the allegations.

Sexual Harassment Can Happen Anywhere and To Anyone

There are two kinds of sexual harassment:

  • Quid pro quo harassment, which involves offers of professional advancement (or threats of demotion or termination) in exchange for sexual favors, and
  • Hostile work environment, where there is pervasive sexual hostility or misogyny in the workplace. Roger Ailes

Both forms of harassment are illegal under state and federal law. The claims against Mr. Ailes primarily are of quid pro quo harassment.

While women are the most frequent victims of sexual harassment, men also may have valid claims. The perpetrators of sexual harassment can be either a man or woman—and same-sex harassment also occurs. Sexual harassment is present at a wide variety of workplaces—from factory floors to executive offices. As Ms. Carlson’s claims demonstrate, even high profile employees may become victims.

Understand the Statute of Limitations in Sexual Harassment Claims

Before you file a federal lawsuit, you must first file an EEOC complaint. EEOC complaints must be filed within 180 or 300 days of the discrimination, depending on the circumstances. The EEOC will investigate your claims and may issue a “right to sue” letter. You must file a federal lawsuit within 90 days of receiving this letter.

You may also have claims under state law. Statutes of limitations vary from state-to-state. You may have to file a complaint with your state’s anti-discrimination agency before filing your lawsuit.

Statutes of limitations are unforgiving. If you do not file a sexual harassment lawsuit within the correct deadlines, your claim will be dismissed. Because sexual harassment lawsuits involve strict filing procedures and deadlines, it may be in your best interest to speak with an experienced discrimination lawyer early on.

What Can Women Do to Get Their Stories Out Sooner?

It is understandable why many women stay quiet about sexual harassment. Complaints may result in workplace tension, retaliation, and emotional distress. Some victims decide simply to quit their jobs and move on.

However, it is important that women (and male victims) enforce their rights. We need to actively combat the stigma surrounding reporting harassment. And, victims of sexual harassment may be entitled to a variety of damages, including compensation for lost wages, pain and suffering, and even job reinstatement.

Be Brave

Gender bias and harassment are a part of many workplaces—the increase in caregiver discrimination and the EEOC’s steady volume of gender-based claims are evidence of this.  Filing a sexual harassment complaint can be emotionally difficult. You may face retaliation and public scrutiny. Unfortunately, silence will not fix the problem.

It may be tempting to ignore harassment—or laugh it off as friendly horseplay. However, sexual harassment is illegal and harmful. It can permeate a workplace and result in poor work performance, low employee retention, and homogeneity. (Studies have shown that diverse workplaces are more productive and agile.)

As a culture, we need to combat and discourage sexual harassment and other forms of discrimination. A lawsuit can force a business to evaluate and change its practices and workplace policies.

Document the Harassment and Subsequent Retaliation

In order to win a sexual harassment claim, you need evidence. Keep copies of any emails, text messages, or other harassing communications. You also should keep copies of any complaints you made to Human Resources (as well as HR’s responses). This documentation will help support your claim and give you a better chance of winning.

Seek Counseling and Emotional Support

Again, sexual harassment litigation can be difficult. Because many claims are “he said, she said,” your credibility may be scrutinized. You may face retaliation or hostility at work. Nonetheless, it is important that we take a stand against sexual harassment and discrimination. By reporting harassment, you may protect other potential victims, change workplace policy, and recover damages.

A counselor or support group may provide the emotional help you need during a harassment investigation and lawsuit. Consider career or vocational counseling to help rebuild your resume and restore confidence.

Hire a Sexual Harassment Lawyer

A sexual harassment lawyer can also provide important support and guidance. A lawyer can assure that you meet filing deadlines, prepare you for an investigation and lawsuit, and help you change your workplace’s culture and behaviors. Additionally, legal representation can help you secure fair compensation for your damages.

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 



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