November 2007 Archives

November 19, 2007

Democratic Presidential Contenders Propose FMLA Changes

If you're in the running to be the Democratic party's presidential nominee, you'd better have a proposal to expand the Family and Medical Leave Act (and a health care plan, but that's a story for another day). In recent weeks, the leading democratic contenders--Senator Hillary Clinton, Senator Barack Obama, and John Edwards--have all come out with various plans to expand the FMLA. (The leading contenders who have announced, that is: According to CNN's latest poll, Al Gore is ahead of John Edwards right now.)

All three are in favor of all of the following, in some form:

Mandatory paid sick leave. Clinton, Obama, and Edwards have all come out in favor of requiring companies to give employees at least seven paid sick days per year. Clinton and Obama are cosponsors of a Senate Bill, the Healthy Families Act, that would enact this requirement; additional cosponsors include presidential contenders and Senators Joe Biden and Chris Dodd.

Support for state-run paid leave programs. John Edwards has proposed spending $2 billion to assist states in developing programs to offer paid family leave; his goal would be for all workers to have access to eight weeks of paid family leave by 2014. Senator Clinton would spend $1 billion, and Senator Obama $1.5 billion, to help states come up with paid leave programs.

Apply the FMLA to smaller companies. Currently, the FMLA covers only companies that have at least 50 employees. All three of the democratic frontrunners support lowering this coverage threshold, so companies with at least 25 employees are covered.

To find out more about the FMLA, check out The Essential Guide to Family and Medical Leave, by me and Deborah C. England (Nolo).

Lisa Guerin

November 12, 2007

Harassment Today: We've Come a Long Way, (Don't Call Me) Baby

1991_02.jpgWith the recent publication of his book, My Grandfather's Son, Clarence Thomas has renewed his attack on Anita Hill, the former employee who nearly derailed his 1991 ascension to the Supreme Court when she alleged he had sexually harassed her (ironically, at the EEOC). In response, Ms. Hill wrote a fiery editorial in the New York Times, pointing out inconsistencies in Justice Thomas' portrayal of her.

I'm not going to get into the middle of the debate. But I am going to thank Ms. Hill for this: we've come a long way, in large part, I believe, because of her very public "outing" of sexual harassment as a pervasive workplace problem. Reflecting on the past 16 years, here are a few highlights that I think benefit employees and employers alike:

Policies. As a matter of course, employers today have antiharassment policies in their handbooks, explaining what's prohibited and how to report harassment. This sets standards of behavior and gives the employer the opportunity to resolve workplace problems before they become lawsuits.

Training. Many employers conduct voluntary training, though few states require it (only California has a comprehensive requirement). Training gives employers the opportunity to reaffirm their polices and helps employees understand the "gray areas"--the real workplace situations--better than a policy alone does.

Affirmative Defenses. Through a line of important cases, the Supreme Court has recognized that an employer can defend itself in many harassment suits by showing it has exercised reasonable care to prevent and correct harassing behavior. This motivates employers to create preventative systems (including training and policies) and motivates employees to use those systems.

Understanding liability. Everyone knows that an employee doesn't have to suffer a "tangible employment action"--like firing or denial of a promotion--to be a victim of sexual harassment. Many definitions have been clarified for us, including what harassment is, how to measure it, and who will be held liable for it.

While sexual harassment claims at the EEOC were down overall last year, claims by males were up. Likewise, there's a growing recognition by both employees and employers that harassment can be based on more than just gender, and can include age, race, national origin, and religion. We've learned a lot so far, but we still have a long way to go.

Alayna Schroeder

November 5, 2007

Strip Club Should Have Had Workers' Comp Coverage

Last month, the Indiana Court of Appeals upheld an exotic dancer's claim for workers' compensation. The dancer, Angela Hobson, was "performing a pole trick" when she "felt a pull in her neck." For the next several weeks, she felt pain and numbness in her neck, shoulder, and arm. She was diagnosed with a herniated disc, for which she underwent surgery. She filed a workers' comp claim against her employer, the Shangri-La.

The Shangri-La argued that it didn't know of Hobson's injury. But the Court wasn't impressed by this claim, especially because the Shangri-La didn't have workers' comp insurance (and wasn't approved as a self-insured employer) and didn't even have procedures in place for keeping track of workplace injuries.

Because the Shangri-La had no insurance, it will have to pay higher damages. In addition to reimbursing Hobson's medical bills, paying her $548 per week for the time when she was totally disabled, and paying her $10,4000 for the permanent impairment caused by the injury, the Shangri-La will have to pay an additional 5% of the total award as a penalty for failing to have coverage. In fact, it could be required to pay twice the total award and all of Hobson's attorney fees as a further penalty.

The outcome of this case didn't really surprise me: If you look beyond the setting, this is a fairly straightforward claim involving an on-the-job injury. What did surprise me was the club's defense. The owner of the Shangri-La has said that it missed a payment on its insurance, and that's why the club had no coverage when Hobson was hurt. I expected the club to raise a different argument: that Hobson wasn't an employee at all, but an independent contractor who isn't entitled to workers' comp benefits. 

Many adult entertainment venues classify their dancers as contractors and require them to pay a fee to use the stage. This means the clubs don't have to pay the minimum wage, chip in for the employee's Social Security, provide employee benefits, or pay for unemployment or workers' comp insurance. A number of class actions and individual cases have been brought to challenge this practice, with mixed results. Often, the issue comes up in precisely this setting: A worker who was classified as a contractor files a claim for unemployment or workers' comp, and the state agency has to decide whether the classification was correct.

Of course, classifying workers as contractors is a two-edged sword, especially when it comes to workers' comp coverage. Although employers don't have to provide workers' comp for contractors, and therefore save money on premiums, they also stand to lose big if the worker files a lawsuit. Unlike employees, who are limited to workers' comp benefits, contractors can sue for personal injuries. If they can show the employer was at fault, contractors can collect damages for pain and suffering, all lost compensation, and even punitive damages. Sort of makes workers' comp premiums look like a small price to pay.

Lisa Guerin