Category: Workers’ Rights

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

The circumstances surrounding the death of 31 year old Miwa Sado have just been made public, though she passed away in 2013. Sado was a political reporter, and an overworked one at that – which it has now been revealed was the cause of her death by heart failure. NHK (Sado’s former employer) reported that she had worked about 159 hours of overtime in the month before her death. This means that she was working in just one week what most full time employees clock in a full (two week) pay period.

Stories such as Sado’s are not unfamiliar to Japanese culture – they even have a special term for it, “karoshi” which translates to “death by overwork”. The term was originally coined in the 1970s as Japan’s economy boomed. Labor lawyers and civil rights groups have been pressing for legislative change since the 1980s, but the trend has continued in spite of this.

In December 2015, a similar tragedy took place. Matsuri Takashi, a 24 year old employee of Dentsu, an advertising agency, jumped to her death from the company dormitory. “Ms. Takashi’s death was caused by serious depression triggered by overwork and harassment,” Hiroshi Kawahito, a lawyer representing her case, told CNN Money. In the month leading to her death, Takashi clocked about 105 hours of overtime, according to investigators. After concluding its investigation, Dentsu announced that they would be capping overtime hours to a maximum of 65 per month.

But how do work hours measure up across different countries? According to the International Labour Organization, Americans work an average of 137 hours more per year than Japanese workers. The United States is arguably the most overworked developed nation in the world – and it comes down to more than just hours worked per week.

  • The United States is the only industrialized country which has no legally required annual leave program – even Japanese workers are required to receive 10 days off per year
  • The United States is not one of the 134 countries which sets a limit on maximum hours worked per week
  • There is no federal law requiring paid sick days in the United States
  • The U.S. is the only country in the Americas without paid parental leave (maternal or paternal) to care for/bond with new children – the average in most other countries is 12 weeks of paid leave and 20 weeks of paid leave throughout Europe.

 

Sources:

https://20somethingfinance.com/american-hours-worked-productivity-vacation/

https://www.usatoday.com/story/news/world/2017/10/06/japan-struggles-karoshi-death-overwork-after-deaths-2-young-women/738915001/

http://money.cnn.com/2017/10/05/news/japan-work-overwork-woman-dies-karoshi/index.html

sex discrimination

Research giant LexisNexis to pay gender discrimination settlement

LexisNexis is one of the world’s top research content providers to the legal, business, law enforcement, government, and corporate industries. Their sister company, LexisNexis Risk Solutions has agreed to pay more than $1.2 million to female employees in management due to the U.S. Labor Department’s allegations that they were subject to gender discrimination. This includes 185 affected female employees in the Alpharetta office as well as 26 female employees at the Boca Raton location. The company has also agreed to pay an additional $45,000 in salary adjustments to women at the Boca Raton operation.

The settlement comes three and a half years after the investigations were initiated. Two separate investigations had been conducted by the US Department of Labor’s Office of Federal Contract Compliance Programs. They found that pay discrepancies had affected 211 women total. The allegations did not arise from a particular employee complaint, but rather from LexisNexis providing pay transparency information to the DOL. Upon review, the information appeared to violate Executive Order 11246 – which requires pay transparency and prohibits discrimination based on race, color, religion, sex, sexual orientation, national origin or gender identity by government contractors (which LexisNexis happens to be). In 2015 and 2016, the company had “millions of dollars in federal contracts with the U.S. Departments of Homeland Security, Justice, Transportation and Labor, and the Office of Personnel Management and the General Services Administration”. “It is unlawful for federal contractors to discriminate in pay on the basis of sex,” said Acting OFCCP Director Thomas M. Dowd. “Through this settlement, the affected class members will be compensated for their losses. We are pleased that the contractor worked cooperatively with us and has agreed to review and revise pay policies and procedures as necessary.”

The Department of Labor website FAQ section states that “If a business or organization has a Federal contract, subcontract, or federally–assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12–month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount will be subject to the requirements of Executive Order 11246.

LexisNexis has agreed to pay the settlement but does not consider it an admission of guilt, as a release from the company clarifies. The full statement reads: “LexisNexis Risk Solutions is committed to ensuring all employees are treated fairly and afforded equal employment opportunities. The findings [by the Office of Federal Contract Compliance Programs] were not based on any individual complaints; rather they were derived from statistical analysis conducted by the agency. The company disagrees with the OFCCP’s findings and does not believe it violated any federal laws. After three and a half years of cooperation during the agency’s review, we ultimately agreed to the settlement to avoid committing additional time and resources for continued legal proceedings.”

LexisNexis is not the only company accused of pay discrepancies based on gender discrimination in a large scale. Pharmaceutical company Merck is currently facing a class action lawsuit of more than 400 women alleging that they also faced gender discrimination. The case began in May 2013 with a single plaintiff, Kelli Smith. She filed the case alleging Merck had discriminated against women by denying them proper pay and promotions, by forcing pregnant women to take leave, and by fostering a hostile work environment which encouraged/allowed sexual harassment. Early in 2014 several other women joined the case, leading to a number which is now in the hundreds.

Gender discrimination cases appear to either be on the rise, or at the very least be starting to receive the media attention they deserve.

 

Sources:

https://www.dol.gov/newsroom/releases/ofccp/ofccp20170112

http://www.sun-sentinel.com/business/fl-lexisnexis-discrimination-settlement-20170112-story.html

http://www.abajournal.com/news/article/lexisnexis_risk_solutions_pays_1.2m_to_resolve_pay_bias_allegations

http://fortune.com/2016/07/21/women-suing-merck-sex-discrimination/

https://www.dol.gov/ofccp/regs/statutes/eo11246.htm

What a Trump Presidency Might Mean for Family Leave Laws

With the Electoral College officially selecting Donald J. Trump as the next President of the United States, many are now wondering what changes may take place upon his inauguration. Particularly relating to employment, you can expect to see many changes including family leave time for workers.

Trump has proposed a plan which would give women who recently gave birth (note, not all new mothers) 6 weeks of partial paid leave through an expansion of unemployment. While this may initially sound great, upon inspection of the plan there is much to be desired. The first issue arises from the source of funding for the program, which is supposed to be unemployment. This is a social service which is grossly underfunded as is, without adding the element of maternity leave. Because of the lack of funding, it is estimated that women on this plan would only receive approximately 30% of their weekly wages.

Other glaring issues with the program include the length of time offered. Six weeks is far below the recommended minimum of 12 weeks for parental bonding time after a child is born/adopted. This brings us to the next issue – the coverage would only be available to women that just gave birth. This means that fathers and adoptive/foster parents are ineligible to the benefits.

There are alternatives to Trump’s proposed plan, including a bill sponsored by Connecticut Congresswoman Rosa DeLauro and New York State Senator Kirsten Gillibrand called the FAMILY Act. The acronym stands for Family and Medical Insurance Leave Act, and would require all employers (regardless of company size) to provide employees (regardless of age/duration of employment) with 12 weeks of paid leave for various reasons. It would not only provide coverage to women that just gave birth, but also to new fathers, adoptive parents, foster parents, or people needing to take time off for their own serious medical condition/to care for a family member with a serious medical condition. In contrast to Trump’s plan which would be through unemployment, FAMILY would be run by a new office of the Social Security Administration. It would be funded by small contributions by employees and employers as a payroll deduction. This may be a concern upon first hearing about the plan, but the deduction is extremely minimal – 2 cents for every $10 earned by the worker. It would enable participants in the program to make up to 66% of their regular weekly wages during their time away from work. Both insurance benefits and administrative costs would be covered by the contributions. In order for the plan to work, all employees would be required to participate in the contribution if the bill is passed (you can’t opt out). If people were able to opt-out, the structure of the funding would be changed drastically, making the deductions too great for those that want to participate.

The FAMILY Act had been gaining support in Congress, and was expected to pass under a Hillary Clinton administration. However, now that Republicans will be controlling both the White House and Congress, the bill will most likely be facing bigger impediments than it did previously.

In order to encourage opponents of paid family to support the policy, a non-profit organization called PL+US intends to put the pressure on nay-sayers. IN addition to a possible political action committee, PL+US will be launching a campaign highlighting companies with excellent paid leave policies – as well as highlighting companies with the worst leave policies.

Currently, the only national family leave program is The Family & Medical Leave Act of 1993, which provides up to 12 weeks of unpaid leave to certain employees to care for themselves or a family member in the event of serious illness. However, the fact that the leave is unpaid is not the only problem with the program. It also comes with many stipulations which leaves a majority of workers ineligible for the time off. The first requirement for an employee to be eligible for leave, is that they must work for a “covered employer”. Covered employers are those which a) employ at least 50 people for 20 or more workweeks in the current or preceding calendar year (private sector) or b) are a public agency (regardless of how many employees). The next qualification is that the employee must have worked for the employer for at least 12 months, and given at least 1,500 hours of service during the past 12 months. Finally, the employee must work at a location where the employer has at least 50 employees within a 75 mile radius. In some situations, the FMLA leave may be taken intermittently as needed.

While it is impossible to say at this point what may happen in the coming year, one thing is clear – big changes are coming to family leave laws. Hopefully, they will be for the better.

Sources:

https://www.dol.gov/general/topic/benefits-leave/fmla

http://www.nationalpartnership.org/research-library/work-family/paid-leave/family-act-fact-sheet.pdf

http://www.nationalpartnership.org/issues/work-family/family-act.html?referrer=https://www.google.com/?referrer=http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://thehill.com/blogs/pundits-blog/healthcare/309533-congressional-leaders-should-reject-trumps-maternity-leave

 

Discrimination

Discrimination vs. Disparagement in the Workplace

Does it seem like your boss is always picking on you? For some reason, you get written up for things that your co-workers do without consequence? Maybe your supervisor never approves your vacation time requests? Or do you feel like you were passed over for a promotion, though you were the most qualified candidate? Feeling singled out may lead you to believe you are being discriminated against. Discrimination is broadly defined as “the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex”. However, in a legal environment, discrimination is defined a bit differently. In order for the treatment you are experiencing to be considered bona fide discrimination, it MUST be based on your gender, race, religion, sexual orientation, or some other protected class. To say that your boss “just doesn’t like me” with no prior indication that their dislike is based on a protected attribute does not equal discrimination.

You may be asking, what is a protected class? “Protected class” refers to specific characteristics rather than all people with that characteristic. Per anti-discrimination laws, protected classes include race, color, religion, sex, national origin, disability, and age (40 and older). People sometimes make the mistake of thinking that because they possess a protected attribute, they are automatically protected from termination for any reason at all. This is not the case. For example, a lay-off of 50 employees includes someone that is 60 years old. They are not automatically protected from termination, though they are over 40 years old. However, if the employer terminated 50 people all over the age of 40, there may be cause to believe they were all let go due to their age, which would be age discrimination.

Another common scenario where one might think they have been “discriminated against”, is after being passed over for a promotion. You begin to search for answers – why didn’t you get the promotion? What could it possibly be? It can’t be your performance…you always receive great reviews. Nor can it be your experience level, as you have been with the company longer than most other employees. So what could it be? While the situation is unfortunate, and maybe unfair, it doesn’t necessarily mean it’s illegal. You would want to look back and think, do I have any real evidence to show that this was due to my (age, race, religion, etc.)? Have you ever heard any comments regarding the particular protected class you believe they are discriminating against? Whether the comments were aimed at you or someone else, whether it was serious or a “joke”, they can be very telling. Have you noticed a pattern of this happening to the same group of people in the past? If not, there probably were other factors that led to the decision of who received the promotion.

Often, people believe favoritism and discrimination are akin. Unfortunately, they usually aren’t. Favoritism is of course, frowned upon, and unquestionably bad management. But once again, unless the favoritism is based on certain characteristics, it isn’t discrimination. It’s one thing for an employer to show favor for employees that they, for example, find funny. They are always laughing with these employees and seem to give them better hours, duties, etc. because they just “like them more”, whether or not these employees are actually the hardest working or most deserving of praise. Sense of humor and ability for social interaction is not a protected class. Therefore, if your boss treats you differently because they don’t find you as humorous, it is not discrimination. However, it is entirely different for an employer to give all of the best shifts/promotions/benefits to only white employees. Because race is a protected class, this would be an example of legitimate discrimination. Another example of actual discrimination is if the boss asks everyone to pray out loud every morning. You refuse because it does not align with your religious beliefs. Afterwards, your boss seems to single you out or treat you punitively. As religion is in fact a protected class, this would be considered discrimination, and you may be able to file a claim against the employer.

If after reading this you believe you have been discriminated against in the workplace, contact our office. We can evaluate the situation and see if there is a potential case that we can assist you with.

 

 

 

 

Disability Discrimination

HIV+ Disability Discrimination case will proceed

HIV positive employee’s disability discrimination, failure to accommodate claims will proceed, court rules

A Washington court has ruled that an employee’s claims of disability discrimination, failure to accommodate, retaliation, and wage withholding will proceed. The Defendants in the case, Kindred Nursing Centers West, had filed for summary judgement on said claims in hopes of having them dismissed.

The case was originally filed in 2014 by David Edman. He began working for the employers in July 2011 as their Food Services Manager. He worked without incident from his hired through the receipt of a new direct supervisor, Sandra Hurd. She became the facility’s new Executive Director in November 2012, and Edman reported to her directly. It wasn’t until April of 2013 however that Edman disclosed to Hurd that he is HIV positive.

In summer of 2013, Edman’s health began to deteriorate. He began losing a significant amount of weight, and his co-workers grew concerned about his wellbeing. That July, he received a written warning from Hurd regarding two arguments he had with staff members – one with a nurse, and one with a vendor. Edman admitted he had raised his voice, but stated his disposition was being negatively affected by his illness.

On July 29th, Edman had the day off from work for a previously scheduled doctor’s appointment. He received a call from Hurd however, telling him that the Department of Health & Human Services dropped by unexpectedly to conduct their annual survey. Edman claims that he told her he was ill and on the way to the doctor’s, but she insisted that he come in to work anyway. Hurd however claims that she did call to tell him about the survey, but did not ask him to come in, and rather said that she could handle it without him. Regardless, Edman cancelled his doctor’s appointment and worked from that day through August 6th at the conclusion of the survey. During that time, one of the surveyors complained to Hurd that Edman seemed “focused only on the timing of the meals, and not the accuracy or quality”, and also that he was yelling at staff members. Despite this complaint and his illness, Edman’s area received only one mark of deficiency. Hurd admitted he had “worked long hours throughout the week of the survey without asking for time off or accommodations for his illness”.

With the survey concluded, Edman was able to finally see his doctor on August 8th. At this appointment, his doctor Thomas Smith suggested that he go on immediate medical leave. Edman’s request to his employers for leave was granted, and he began receiving short term disability benefits.

Edman returned to work on October 1st, 2013. He had previously requested to work part-time for the first two weeks he was back, which was granted. However, on his first day back he received a written warning and was put on a Performance Improvement Plan for his behavior during the survey. Edman did not object to the behavior, citing “multiple infections and lack of sleep” as the cause of the issues. Hurd responded allegedly by saying that his medical conditions were “not an excuse”. Edman was the only employee disciplined because of the survey, despite the fact that the manager of another area received nine citations.

Later that month, Edman’s health took another serious hit as he was diagnosed with Kaposi’s Sarcoma – a form of cancer. Though he qualified under social security as having a disability, he would still be able to work without accommodations. On October 29th, he requested temporary accommodations while he was being treated as well as intermittent FMLA (Family Medical Leave Act) leave. Upon hearing his requests, Hurd allegedly replied, “No, I can’t do this. You still have to do your job.” Two days later, Edman, Hurd, and HR Director Elaine Revelle met. There, they told Edman that they would not be able to provide the requested accommodations and he would instead be placed on unpaid leave while they discussed the situation. To add insult to injury, he was asked to leave the building thereafter.

During his leave, Edman sent several emails asking for the process to be sped up as he had no source of income. After providing additional information regarding his accommodations and an updated note from his doctor, some of Edman’s accommodations were finally granted on November 22nd. However, the acceptance came with the expectation for Edman to have cooking duties added to his work load. They stated this was necessary due to budget cuts. It wouldn’t be until December that more of his accomodations were granted, intended to allow him uninterrupted lunch in his office with the door closed and not having to interview residents. Other accommodations he had requested were denied, such as a temporary moratorium on changing dining services department operations, staffing, or duties, two weeks’ notice of any such changes, and his request to transfer to a position in the Central Supply Department, which would not require cooking. In place of the last request, the employers agreed to remove cooking from his duties.

On December 9th, Edman sent an email to his attorney describing the great stress the situation had caused him, and expressed an interest in “resolving his employment” with Kindred. The following day, an offer letter was sent to the company, requesting the possibility of his resignation “in exchange for certain compensation and fees”. This offer was rejected by the employers, and instead the parties continued communications about Edman returning to work.

In January 2014, Edman’s doctor released him to return to work with several accommodations, including:

  • Intermittent FMLA leave as needed
  • Uninterrupted 30 min lunch in his office with the door closed
  • 8 business days’ notice prior to deadline for any assessment, planned event, or staffing modification
  • An effort by all parties to keep stress levels low
  • Adequate rest between shifts

On January 6th, Edman returned to work full time but states that the accommodations outlined were not met, which caused his health to deteriorate once again. Despite this, he continued working for over another year before finally going on his last medical leave due to a work related injury. After his leave is when he initiated the lawsuit for claims of disability discrimination, failure to accommodate, retaliation, and wage withholding.

 

Sources:

http://hr.cch.com/eld/EdmanKindred112116.pdf

http://www.employmentlawdaily.com/index.php/news/hiv-positive-manager-put-on-pip-denied-accommodation-advances-disability-bias-claims/