Monthly Archives: October 2008

One sure way to mess up your unemployment claim…

…starts before you ever separate from your employer.

If you want to be able to collect unemployment benefits, at least in New Jersey, you should not voluntarily resign from your employment. A shining example is provided in a recent decision from the Superior Court of New Jersey’s Appellate Division, in which an employee appealed her disqualification from benefits because she “left voluntarily and without good cause attributable to the work.”

After a business meeting, the employer asked the employee to undergo a psychiatric evaluation to determine her fitness for the job. She had the evaluation and was determined fit for duty. But she also asked the Human Resources Department for a severance package based on her belief that she was bullied during the business meeting and subjected to a discriminatory and hostile work environment. She felt that her supervisor was going to fire her. But the employee initiated the separation process. No one asked her to resign.

Therein lies the rub. No one asked her to resign, and yet she initiated the separation process. Hence, the denial of unemployment benefits was proper.

Hetherington v. Board of Review, et al.

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5 tips on how survive an employer’s credit or criminal records check

What information about you can an employer gather?

More employers are gathering information on potential employees, as the information-gathering process becomes easier and cheaper. To gather information, employers use internet tools such as search engines, blogs, online forums, social networking sites, photo sharing sites and microblogs. Employers also find out information through more traditional means, such as criminal records and credit checks and job tests.

There’s not much you can do to counteract the effect a bad credit report or an arrest record might have on a prospective employer’s opinion of you. And there’s nothing illegal about an employer checking your credit. But if an employer uses credit checks to improperly discriminate against certain groups based on race, color, religion, sex or national origin, it is illegal. In the employment law world, it’s called “disparate impact.”

Disparate impact cases are quite difficult for employees to prove, though. Just be aware of which employers are more likely to run credit and/or criminal backgrounds checks on you – banks or employers who hire cashiers, for example – if you have problematic credit and/or criminal records.

1) When an employer is going to run your credit report, they must give you written notice beforehand. For many prospective employees, however, this notice may be just one of many pre-employment forms completed and signed. Read everything you sign!

2) If the company decides not to hire you because of your credit report, they have to give you a copy of the report, along with a disclosure of your rights under the Fair Credit Reporting Act.

3) Make sure you don’t lie to your prospective employer about something that might appear on your credit report or criminal record. Especially if you sign a piece of paper giving them permission to get a copy of your credit report and/or your criminal record. If you lie to your prospective employer, they can decide not to hire you or to fire you later on because of the lie.

4) Be ready to explain to your prospective employer why you have something negative on your credit report and/or criminal record, on the off chance that they give you the opportunity to do so. It would be better to provide the explanation before they retrieve the credit report and/or criminal record so that they are not unpleasantly surprised.

5) Be aware of what is on your credit report, especially if you think a prospective employer might check it. That way, if there are inaccuracies on the report, you can take steps to correct them. And you can notify your prospective employer of the inaccuracies and of the steps you have taken to correct them. Correction of inaccuracies on your credit report is something that may take time, so you may not be able to clear them up prior to your application for employment.

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How the lack of fair pay affects us all

Floating money

Are you paid fairly?

A 2007 U.S. Supreme Court case that you may have heard of, Ledbetter v. Goodyear, says that a person claiming pay discrimination must file their EEOC discrimination claim within 180 days after receiving their first discriminatory paycheck. The case has been widely criticized – see, for example: The American Prospect and Pundit Mom.

The issue of fair pay arose in the current presidential campaign – see Huffington Post and Newsday. Criticism of McCain’s position can be found at MOMocrats and Jezebel. A bill was introduced to remedy the problem the U.S. Supreme Court created: HR 2831. The bill’s lack of progress was reported on in the Washington Post. And there was a speech by Lily Ledbetter herself at the Democratic National Convention.

Now there is an interesting installment from the academic world (also blogged about at Women’s Studies Liblog). A recent article in the Harvard Civil Rights-Civil Liberties Law Review by Tristin K. Green entitled, “Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear,” explores the idea that the Ledbetter case is part of “the belief that discrimination can be reduced to the action of an individual decisionmaker (or group of decisionmakers) isolated from the work environment and the employer.”

Prof. Green’s argument is that the Ledbetter case is leading a trend toward stiffer evidentiary requirements for employees in employment discrimination cases. There will be less evidence that employees are allowed to use to show discrimination, and vicarious liability for employers will be whittled away.

Part of the larger point of the article is that the attempted Congressional remedy of HR 2831 will not be enough to protect against further erosion of employee rights because its scope is too narrow. Litigants should emphasize the role of the larger organization in setting the stage for discrimination to counter the argument that the discrimination is only the responsibility of one or more errant individuals who are somehow not acting as part of the workplace. Prof. Green’s argument goes beyond the scope of equal pay, reaching all areas of employment discrimination law. It is worth exploring.

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Employee fired for performance issues not eligible for FMLA

An employee who was fired for performance-related issues does not have a legitimate claim under the FMLA just because his request for FMLA leave happened to coincide with the termination of his employment, according to the U.S. District Court for the Eastern District of Pennsylvania.

The employee worked at a bank and he was fired because he was responsible for having controls in place that would have caught an embezzlement that had occurred at the bank. Before he was fired, the employee sought FMLA leave for knee surgery. However, the court found that the employee was not eligible for FMLA leave once he was fired because he was no longer employed by the bank.

According to the court, the employee was fired for a reason unrelated to his request for FMLA leave. An employee who has requested FMLA leave is not entitled to greater rights or benefits than he would be if he had not requested leave. In other words, the employer was entitled to fire the employee for performance related issues even though he had requested FMLA leave for knee surgery.

Edwards v. Harleysville National Bank, Civ. No. 07-3987, (ED Penn. 2008).

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Ability to do light work doesn’t disqualify disabled employee from receiving workers comp

A former Camden police office is eligible to receive workers compensation even though he was able to do some light work, according to an unpublished opinion from the Appellate Division of New Jersey’s Superior Court. The officer was injured in an on-the-job auto accident and his physician stated that he was unable to perform his duties as a police officer. A physician hired by the city, however, opined that the officer would be able to perform his old job. The officer and the city went to trial.

During the trial, the city played a video showing the officer performing some physical work. The trial judge took the video into consideration, but stated that it did not negate the presence of injuries preventing the officer from performing his duties as a police officer. The court found in favor of the police officer keeping his workers compensation disability benefits.

The city appealed. The appellate court agreed with the trial court, determining that the video evidence showing the officer performing some work could not keep him from receiving disability benefits.

Lance v. City of Camden Police Dept., DOCKET NO. A-6606-06T3 (Sup Ct NJ, App Div 2008).

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Mental Health Parity

The recent bailout bill had an interesting addition – a mental health parity act. When this new mental health parity act takes effect, your employer-sponsored health insurance plan will no longer be allowed to differentiate benefits levels between regular medical benefits and mental health benefits provided under the plan. Right now, insurers are allowed to set higher co-pays or stricter limits on benefits, such as a fewer number of visits to a speech therapist for autism, for example.

The parity act is broad in that it includes coverage for addiction services as well. However, it does not apply to employers with fewer than 50 employees.

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