Geoffrey Kalender Employment Law: Civil Rights and Wage Claims

02/21/2023

Suddenly, your performance reviews start declining. You get fewer assignments and the assignments are less desirable. Leadership keeps talking about new and fresh starts. Your wage stagnates. Nothing you can do is right. You're a victim of age discrimination, this is what it looks like. Age discrimination is considered among the most prevalent types of discrimination and one of the hardest to prove. A 2018 AARP study claims over 60% of adults who are 45 or older have experienced or seen age discrimination in their workplace firsthand. But, it's subtle and often the targets of the discrimination are not people who consider themselves members of a protected group, or at least the protected group of "seniors".

Generally speaking, your employer cannot penalize you at work because of your age, though these laws often only protect older workers. If you suffer an "adverse employment action" that you think is connected to your age, you may have protection under Federal, State, and municipal laws and should speak with an attorney soon, statutes of limitations for such claims can run very quickly.

"Her departure set off multifaceted debates across Canada, especially after The Globe and Mail newspaper reported it may have been linked to Ms. LaFlamme’s hair — which she had chosen to let go gray during the pandemic when hair salons and other businesses shut down. The network’s owner, Bell Media, which denied that “age, gender and gray hair” had been factors, named a 39-year-old male correspondent, Omar Sachedina, as her successor."

Lisa LaFlamme was dismissed after a decades-long TV career, not long after she stopped dyeing her hair, setting off debates across Canada about sexism, ageism and going gray.

02/21/2023

I used to practice personal bankruptcy and almost every client had student loan debt that survived the Chapter 7 or 13 process. The clients who needed loan relief most couldn't afford to pay for the legal work required to discharge that debt as a "hardship" in bankruptcy. The Fed and other lenders always opposed such attempts to discharge, requiring debtors to maintain small lawsuits to obtain a discharge. I had clients who were 85 years old, on social security, who were paying for classes from 30 years ago, easy discharges — except for the fact it would cost thousands of dollars to fight for such a discharge.

This new rule, if the devil is not lurking in the details of bankruptcy court practice, will make such applications to discharge the debt easier and remove pro forma opposition by the government to such discharges. Any concern this will drive otherwise earning people into strategic bankruptcies is misplaced as the standard for a hardship discharge hasn't changed. This change would make poor people's lives better and help anyone who is unable to work and needs this relief most.

"The new updates to the attestation form include tweaks to the reporting of monthly household income, clarifying instructions regarding when a borrower needs to provide additional information, new questions seeking details on whether a school closure impacted a borrower’s ability to repay their student loans, and more detailed information on a borrower’s student loan repayment, deferment, forbearance, and consolidation history. The updates also clarify that if the borrower is disabled, the disability does not have to be “permanent,” only “chronic” to potentially be a basis for a bankruptcy discharge."

The Justice Department has updated a key application form under a new process that may make it much easier for many borrowers to discharge their federal student loans in bankruptcy.

02/21/2023

What appears as cold, corporate reorganization often masks an illegal discriminatory intent. Generally speaking, your employer cannot fire you for exercising your protected rights, e.g. using the FMLA to take parental leave. However, when employers eliminate positions entirely, people on protected leave can be laid off - but not if their positions have been chosen for elimination because the employee exercised their civil rights. And employers know that layoffs provide an excellent opportunity to shuffle titles and responsibilities and remove troublesome employees who insist on having what the law says is already theirs.

Don't accept the reason your employer states for your termination, they have no obligation to be truthful with you. You may have rights and protection under federal, state, and city law. The HR rep from your former employer is the last person you should listen to and initial consultations with employment lawyers are generally free. Don't believe in coincidences when it comes to your rights and your employers actions.

"People on parental leave typically have no special legal protection when it comes to mass layoffs. Many workers have a legal right to take parental leave for the birth or adoption of a child, under the Family and Medical Leave Act, a federal law, or similar state laws. But being on leave, including for disability, doesn’t usually protect people from job cuts that would have happened anyway."

At tech companies that spent recent years expanding paid parental leave, parents have felt the whiplash of mass layoffs in an especially visceral way.

02/03/2023

We all hear the canard 'no one wants to work anymore' but the truth is no one wants to work in that industry or under those conditions anymore. The pandemic convinced (or otherwise caused) aging boomers to completely retire from their roles. These were often the most desirable positions and everyone moved up the ladder accordingly. American employment is resizing from the disappearing population bulge, exposing and eliminating inefficiencies. Workers need to understand the leverage that they have.

"These migrations have been possible in part because so many workers have left the labor force entirely. An estimated 2.5 million people have died, retired or otherwise dropped out since 2020. Americans older than 55, in particular, stopped working at heightened rates during the pandemic because of covid-related health risks. Plus, rapid run-ups in home values and stock prices made it financially viable for scores of older Americans to retire. Those extra vacancies in the job market, researchers have found, created room for people in the service industry to move into new lines of work."

Nearly three years since the coronavirus pandemic upended the labor market, restaurants, bars, hotels and casinos remain perpetually short-staffed. But these workers didn’t disappear, they found better jobs.

02/02/2023

An editorial about the wage study I posted the other day. $36k is way too low a cut-off for salary, the piece suggests a $90k cut-off.

"All hourly workers are entitled to overtime, as are all salaried workers earning less than $35,568 a year. The problem comes above the salary threshold, where managers don’t get overtime. The new economic working paper found that listings for salaried positions with managerial titles are almost five times as common just above the salary threshold as just below it — which seems to be prima facie evidence that employers are gaming the system by handing out bogus titles."

Employers inflate employee titles to dodge an important worker protection.

02/01/2023

02/01/2023

Did you know that only certain jobs are eligible for salary and therefore exempt from overtime wage laws? Employers often incorrectly classify workers as management in order to not pay overtime wages. Below are examples of job title changes made to justify reclassifying employees as managers in order to avoid paying overtime. However, the requirements for overtime exemption are complicated and specific. In general, salaried employees do office or non-manual work and must exercise independent judgment. Please reach out if you have any questions about your classification.

02/01/2023

An employee should never tolerate wage theft or discrimination. Please let me know if I can help you with a claim for unpaid overtime wages, straight time wages, or minimum wage or a claim based on your membership in a protected class, be it race, sex/gender, pregnancy, disability, national origin, age, sexual orientation, gender identity, prior arrest, military status, etc.

02/01/2023

Are you bound by a non-compete agreement? Are you certain? Employers often include such terms even if they are unenforceable.

"The proposed rule would ban provisions of labor contracts known as noncompete agreements, which prevent workers from leaving for a competitor or starting a competing business for months or years after their employment, often within a certain geographic area. The agreements have applied to workers as varied as sandwich makers, hair stylists, doctors and software engineers."

A sweeping proposal by the Federal Trade Commission would block companies from limiting their employees’ ability to work for a rival.