Sexual Harassment Part 4 – Sexual Harassment in the Manufacturing Industry

In the first three articles in our series on sexual harassment in the workplace, we have looked at the medical industry, hospitality industry, and the retail industry. This time, we will take a look at another working-class industry that does not receive very much attention with regards to sexual harassment; the manufacturing industry. Like the others we have talked about, women in this industry frequently have to endure a hostile work environment in which they often feel like they have very little recourse when they are being harassed.

Manufacturing is a unique industry in a lot of ways. The industry has traditionally been dominated by males, and even today, only about 25%-30% of manufacturing workers are female. Manufacturing is also different from many other industries in that there is virtually no customer interaction in this industry, and nearly all of the work is performed “behind the scenes” and away from the view of the general public. This makes it in an environment where it is much easier for workers to get away with bad behavior.

Sexual Harassment Complaints in the Manufacturing Industry

According to a 10-year study conducted by the Center for American Progress, manufacturing had the third highest number of EEOC complaints for sexual harassment. The industry received just under 12% of the 85,000+ complaints to the agency over their decade-long study. The only two industries that had more complaints were the food and accommodation (hospitality) industry and retail. This is surprising considering the low percentage of female workers in manufacturing compared to these other two industries, and it highlights the significance of the problem of sexual harassment in manufacturing. 

There are a lot of reasons sexual harassment is so pervasive in the manufacturing industry:

  • Isolated Workspaces: As mentioned earlier, most manufacturing happens away from public view. Workers are typically assigned to various places on an assembly line, and they often do their tasks with very little supervision. Managers tend to spend most of their time in the back office and only come out on the floor when there is a problem to attend to.
  • Culture of Silence: Manufacturing is a difficult and stressful job, and over the decades, reporting bad behavior has often been viewed as “snitching.” Workers frequently justify their actions by saying things like “this is the way things have always been” or that they were just “blowing off steam”. In this type of environment, women are often afraid to complain because they fear they will be labeled as “moody” or “difficult to work with”, which could put their livelihood in jeopardy.  
  • Lack of Sensitivity: In a traditionally male-dominated industry, sensitivity has never been a top priority. As such, salty language, inappropriate jokes, making fun of other employees, and similar conduct has always been seen as “no big deal” and just “part of the job.”  
  • Limited Accountability: The EEOC estimates that only about 6% to 13% of incidents of sexual harassment are ever formally reported. It is easy to see why this is the case in the manufacturing industry. Many harassed workers do not feel like anything will be done about their complaints. Higher level executives and their human resources personnel are usually located off-site, so there is a general feeling that workers’ complaints may not be taken seriously, and nothing will be done to hold those who are perpetrating this type of behavior accountable.

Changing a culture that has operated the same way for such a long time is never easy. That said, “things have always been this way” is not an acceptable defense. Sexual harassment and other forms of workplace harassment and discrimination are illegal under federal law, and no employee should have to endure a hostile work environment. Manufacturing companies need to take proactive steps; such as enacting stricter anti-harassment policies, ensuring that all workers and management are fully educated on these policies, implementing more transparent reporting policies, and making cultural changes to address this problem.

Have you Experienced Harassment in the Workplace? Know your Legal Rights

If you have been sexually harassed as a manufacturing employee or a worker in any other industry, you do not have to stay silent. Your right to a harassment-free workplace is protected by federal law, and there are legal remedies available, which may include the right to recover compensation. To learn more about the legal options you may have for your specific situation, it is best to speak with an experienced civil rights lawyer.

For nearly 15 years, attorney Kira Fonteneau has fought for the rights of working people in Alabama. Kira has helped numerous employees who have been subjected to harassment and discrimination obtain appropriate legal relief. For a confidential consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also message us through our web contact form.

sexual harassment in the workplace in Alabama

Sexual Harassment Part 3: Sexual Harassment in the Retail Industry

Last month, we talked about sexual harassment in the hospitality industry and the unique circumstances that put hospitality workers in greater danger being harassed or sexually assaulted on the job. This time, we will look at another working-class industry in which a high number of workers are subjected to sexual harassment; the retail industry. According to CBS MarketWatch, retail is second only to the hospitality industry for the number of sexual harassment charges that are filed each year.

When some people think of retail, it conjures up images of glamour and fashion, shopping for clothing, trying on dresses and shoes, etc. But that is far from reality for most people who work in the retail industry. According to the Bureau of Labor Statistics, the average full-time retail worker makes less than $33,000 per year, which is well below the U.S. median household income. In addition, 42% of those working in the industry earn a low hourly wage, defined as less than two-thirds of the median wage across the economy. Approximately 55% of low-wage workers in retail are women, and a large percentage of these women live at or near the poverty line.

Lower wage workers are more susceptible to sexual harassment largely because of their economic vulnerability. For one thing, harassers tend to target those who earn a lower income, because they believe victims are less likely to report the incident. With so many retail workers struggling to get by, the last thing they want is anything that may put their job in jeopardy.

Sexual harassment in the retail industry is not usually peer-to-peer; in a large number of cases, the harassers tend to be managers or supervisors. In a typical retail setting, the manager/supervisor has a great deal of control over the employee’s schedule. They decide what shifts the employee is working, how many hours they will be able to work, and ultimately, how much money they will be able to earn.

Oftentimes, workers feel like they need to just put up with the harassment because managers and supervisors have so much control over their financial well-being. They just endure the lewd and crude jokes and comments, and the occasional touching and groping (and sometimes worse!) for the overall betterment of themselves and their families.

In addition to the disproportionate number of low wage workers in retail, there are a couple other major reasons why sexual harassment is rampant in the industry:

Decentralized Workplaces

By its very nature, the retail industry is decentralized. The stores where most of the employees work tend to be located a significant distance from any corporate office. This means that officials in the corporate office have no regular face-to-face interaction with front-line employees and immediate managers and supervisors. They may visit the stores from time to time, but essentially, the store manager is in charge on a day-to-day basis. This type of absolute authority with no accountability makes it easier for perpetrators get away with workplace harassment.

Unclear Reporting Policies

Another common problem in the retail industry is ambiguity over who to report a sexual harassment claim to and how it is handled once you report it. For larger chain stores, the process may involve calling a designated phone number and reporting harassment to someone in corporate office or HR Department. But what happens to the information from there? How seriously do they take your complaint? What is their investigation process?

As bad as that sounds, it may be even worse in a smaller store where one or two people are in charge, and they are the ones you are supposed to report harassment to. What if one of them is the perpetrator? How can you ever expect to be treated fairly in a situation like that? In many cases, employees decide to live with the harassment rather than initiating a highly uncertain claims process.

Standing up to Workplace Harassment

If you have been sexually harassed as a retail industry worker or as a worker in any other industry, you do not have to quietly put up with it. You have legal rights, and you may be able to recover compensation and obtain other forms of relief for your situation. The best place to start is to speak with an experienced civil rights attorney.

For almost a decade and a half, attorney Kira Fonteneau has stood up for the working people of Alabama. Kira was recently recognized for her work in this area by being appointed president of the American Civil Liberties Union of Alabama. She can meet with you to discuss your case and advise you of your legal options.

For a confidential consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our web contact form.

Arbitration in Employment Contracts

Forced Arbitration in Law Firms

For decades, most big law firms have required new attorneys and other employees who become part of the firm to sign a mandatory arbitration agreement as a condition of employment. By signing a mandatory arbitration clause when someone is hired, the employee forfeits their right to settle any disputes with their employer in court. Instead, the dispute is handled through binding arbitration, overseen by a (supposedly) neutral, third-party arbitrator.

Last summer, this all started to change because of one tweet. It began when parts of a mandatory arbitration agreement from BigLaw firm Munger, Tolles & Olson, LLP were leaked. The leaked portions of the agreement were tweeted by a Harvard Law lecturer, and they were subsequently retweeted hundreds of times. Several media outlets also picked up and reported on the leaked documents.

The documents showed how the firm’s forced arbitration clause protected them from lawsuits over issues such as sexual harassment and racial discrimination. This created an immediate and overwhelming backlash against the firm and their mandatory arbitration policy. Within a day, Munger caved and announced that they would end the policy. Soon after, the cause was picked up by the Pipeline Parody Project, a group of Harvard students whose mission is to put an end to harassment and discrimination in the legal field. Since the PPP got involved, several other BigLaw firms have announced that they will end forced arbitration policies.

Forced Arbitration vs. Litigation in Employment Contracts

Law firms are not alone in their widespread use of mandatory arbitration clauses in their employment contracts. It is estimated that more than 60 million American workers across a wide range of industries work under a similar type of agreement, and many do not even realize it. These clauses are seen as advantageous for employers for a number of reasons:

  • No Right to a Jury: The Civil Rights Act of 1991 gives employees the right to have discrimination claims heard by a jury of their peers. Arbitration does not provide employees with this opportunity. With arbitration, the dispute is heard by an arbitrator who is supposed to be neutral. Unfortunately, this is not always the case. For example, some arbitrators regularly handle employment disputes for the same organizations. When this is the case, it is very reasonable to question exactly how neutral they really are.
  • Discovery is Limited: During a court trial, both sides exchange information, evidence, and lists of witnesses in what is known as the “discovery” phase. Parties who are going through arbitration are generally limited in their ability to request information from the other side. This makes it more difficult for an employee who has been harassed or discriminated against to prove their case.
  • No Right to an Appeal: With arbitration, the arbitrator acts as the judge and jury. In general, their decisions are final and cannot be appealed. So, if you are unhappy with the decision of an arbitrator, there is no available legal mechanism to have your case reviewed by a higher authority.
  • Recoverable Damages are Limited: Even if an employee does win their arbitration proceeding, the forced arbitration contract they signed often limits the damages that they are able to recover.

Arbitration can be a viable form of alternative dispute resolution (ADR), and it certainly has its place. For example, parties to a dispute may voluntarily choose to try to resolve their dispute through arbitration. This allows them to settle their dispute in a less formal setting and save time and money vs. taking the dispute to court. But when an employee is forced to agree to mandatory arbitration to settle a dispute as a condition of employment, they have very little choice except to sign the agreement if they want the job.

In the wake of the #MeToo movement, law students across the country are starting to realize how unfair forced arbitration clauses are. And the backlash against BigLaw is likely only the beginning. Sooner or later, the rest of corporate America is going to have to confront this issue and make appropriate changes that protect their employees and ensure their right to a safe work environment.

Harassed or Discriminated against in the Workplace? Call Our Skilled Alabama Employment Law Attorney

If you have been subjected to harassment or discrimination at your place of employment, you have legal rights, even if you signed a forced arbitration agreement. Attorney Kira Fonteneau understands the frustration employees feel when their civil rights have been violated, and she has been an aggressive advocate for the working people of Alabama for the past 13 years. Kira can take a look at your case and advise you of your legal options, so you can make the most informed decision on how you wish to proceed. For a consultation with attorney Fonteneau, call our office today at 205-564-9000, or send us a message through our online contact form.

What are the Most Common Violations against Tip Earning Employees?

What are the Most Common Violations against Tip Earning Employees?

Waiters, waitresses, bartenders, delivery drivers, and many others in the hospitality industry depend on tips for their living. In fact, many tipped employees earn more in tips than they do with their hourly wage. These workers are typically paid no more than minimum wage, and in many cases, establishments pay them below minimum wage.

Federal law and the laws of most states (including Alabama) allow employers to pay tip-earning employees less than the minimum wage, as long as these employees earn enough in tips to at least make up the difference, and as long as the employer is in compliance with the Federal Labor Standards Act (FLSA). When an employer counts an employee’s tips toward its obligation to pay minimum wage, this is known as a “tip credit.” In order to take a tip credit, an employee must earn at least $30 per month in tips.

Although employers are required to be in compliance with federal wage and hour laws, many of them engage in routine violations. According to a study by the Economic Policy Institute of the 10 most populous states, wage theft by employers is rampant, and it costs employees billions of dollars each year. Wage theft can come in many forms; such as overtime violations, forcing employees to work off the clock, denying workers meal breaks, taking illegal deductions from wages, misclassifying employees as independent contractors, and many others.

Among tipped employees, there are several ways employers frequently violate the law. Here are some of the most common legal violations against tip earning employees:

Illegal Tip Pooling

Tip pools are common in many establishments. This is when an employee contributes all or part of their tips to a pool that is then divided among a certain group of employees. Federal law allows employers to implement tip pooling whether they pay their employees a full minimum wage or not. However, there are some strict guidelines about who is allowed to participate in the pool. Employers, supervisors, and managers are not allowed to be part of a tip pool under any circumstances.

There is another important distinction between employees who have direct interaction with the customers, and those who work behind the scenes, such as bus boys, dishwashers, and cleaning staff. The FLSA was clarified in 2018 to say that only employers who pay full minimum wage and do not take a tip credit are allowed to establish a tip pool that includes “back house” staff. If you work for an establishment that does not pay a full minimum wage (in lieu of your tips), and they have a tip pool with employees that do not interact with the customers, your employer may be in violation of the FLSA.

Forced Payment for Uniforms

Another area in which employers sometimes engage in violations against tip-earning employees is with their uniform. An employer is not allowed to force an employee to pay for a mandatory uniform. In many establishments, this is pretty straightforward. If you are required to wear a specific uniform that displays the company’s logo, colors, etc., you should not be forced to pay for it. There are some gray areas, however, when it comes to requirements of certain styles of dress that may be required. For example, if the entire wait staff is required to wear a tuxedo with bow ties, and the shirt and ties must be a certain color, this could be considered a uniform.

Over-Deducting for Credit Card Processing Fees

Many employers deduct a percentage of tips an employee receives by credit card to cover the cost of the credit card processing fee. Generally, employers are allowed to do this in most states as long as the amount deducted does not put the employee below the minimum wage, and as long as the employer does not profit from this deduction. Employers who engage in this practice are on very dangerous legal ground, however. This is because of the complexity of credit card processing fees.

With many merchant processing services, an establishment pays the interchange fees for a credit card transaction. These fees may vary from as low as under 1% on most debit cards to as high as 4% for credit cards with rewards programs (such as cash back and airline miles). If, for example, an employer automatically deducted 4% of the tips an employee received through electronic (credit and debit card) transactions, they may very well be illegally profiting from the deduction.

Excessive Non-Tipped Work

Tip-earning employees frequently engage in work that does not earn them tips; such as cleaning tables, sweeping the floor, washing dishes, and many others. If an employee spends more than 20% of their work day performing non-tipped activity, an employer may not take a tip credit for that employee. In addition, employers must pay at least the minimum wage for any non-tip work a tip-earning employee performs.

Contact Alabama Employment Law Attorney Kira Fonteneau

If you are a tipped employee in Alabama and you believe your employer has engaged in wage theft against you, it is important for you to speak with an employment law, so you fully understand your legal rights and options. Attorney Kira Fonteneau has aggressively advocated for working people in Alabama for the past 13 years. Kira was recently named president of the Alabama ACLU, and she has helped numerous workers obtain justice during an employment dispute. For a consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our web contact form.

Sexual Harassment in the Hospitality Industry

Sexual Harassment Part 2: Sexual Harassment in the Hospitality Industry

Last time, we talked about sexual harassment in the medical field and the dire need for reforms to give female health professionals a safer work environment. This time, we turn our attention to another industry that is in badly need of reform; the food and beverage/hospitality industry. For as long as there have been bars, restaurants, hotels, and resorts, owners of many of these businesses have used a sexual undertone to attract customers.

Discriminatory hiring practices are rampant in this industry. For example, how many male waiters or female waitresses over the age of 40 does Hooters hire? Hooters is not alone, however. These same preferences are used openly by casinos in Nevada, Atlantic City, and on reservations when they are considering who to hire as cocktail waitresses to serve drinks to their patrons. So, given the atmosphere in many establishments that serve food and drinks, it comes as no surprise that sexual harassment has become ingrained into the culture.

How bad is the problem? According to the Harvard Business Review, more sexual harassment claims in the United States are filed by hospitality industry workers than by workers of any other industry. It is estimated that as many as 90% of women and 70% of men who work in this industry have reported experiencing sexual harassment.

While the #MeToo movement has helped shine the spotlight on the widespread sexual harassment and assault among members of the media, movie industry, politicians, and other high-profile professions, very little attention has been given to the issues hospitality workers routinely have to deal with.

USA Today offers some additional insights into why sexual harassment seems to be more accepted in the food and drink industry:

  • Men still rule the roost: While there are more female owners and managers in the bar and restaurant industry than ever before, the industry is still dominated by men. Owners, chefs, and managers often have absolute power, and this tends to feed their egos and make them believe they can get away with anything.
  • Sex is often part of the marketing plan: As mentioned earlier, many bars and restaurants build their entire business model around selling sex. This means that those on the frontline, especially female bartenders and waitresses, are expected to give the customers what they want. And since bartenders and waitresses depend largely on tips for a living, they feel enormous pressure to oblige.
  • Fast-paced environments: Restaurants are high-pressure environments, especially during busy times. With everyone rushing around to serve the customers, many snarky and inappropriate comments are made in the heat of the moment.
  • Work done in close quarters: Bartenders, waiters, waitresses, bus boys, dishwashers, chefs, and cleaning staff often work together in very tight and enclosed areas. This makes it more tempting for workers to engage in inappropriate behavior.
  • Disproportionate number of young workers: The hospitality industry tends to hire most of its staff from the 16 to 34 age group. For many workers, this is their first job, and they may not have a clear understanding about what types of behavior are appropriate, and what crosses the line.

Another issue that makes sexual harassment such a widespread problem within the hospitality industry is that, like in the medical field, workers are often harassed by customers. In fact, customer-based harassment accounts for a large percentage of sexual harassment claims in the industry.

What Can be Done About Sexual Harassment in the Hospitality Industry?

There are many steps that need to be taken in the food and beverage industry to effectively address the problem of sexual harassment. Here are a few of the most important:

  • Create strict anti-sexual harassment policies: It all starts with making absolutely clear to all who work at the establishment that sexual harassment will not be tolerated. If an employee believes that the company doesn’t care about it, tolerates it, or ignores it, they are much more likely to engage in inappropriate behavior. Bars, restaurants, and other establishments in the hospitality industry need to make a commitment to create a safe work environment for everyone.
  • Implement more effective reporting procedures: Having a good policy on paper is a start, but it does little good if there is not an effective way for an employee to report harassment. For example, if you are supposed to report harassment to your manager, and the manager is the one who harassed you, your complaint is not likely to get too far. There should be a separate department, perhaps online or through human resources, where an employee can safely report harassment and know that their complaint is being investigated.
  • Give all managers and workers comprehensive sexual harassment training: Everyone in the company needs to be fully trained on the sexual harassment policy, and what constitutes inappropriate behavior. There should also be training on how to effectively intervene when someone witnesses harassment, so the situation can be diffused.
  • Implement policies to protect employees from customer-based sexual harassment: Finally, restaurants and bars need to be fully committed to protecting their employees from being harassed by customers. For example, if an employee is uncomfortable serving a patron after they have made inappropriate remarks and/or advancements, they should have the right to stop serving that person. The establishment should also have a policy in which they warn customers who behave inappropriately, and if they do not comply, ask them to leave.

Harassed in the Workplace? Contact Our Experienced Alabama Employment Lawyer

If you have experienced sexual harassment as a hospitality industry worker or a worker in any other industry, it is important to speak with a skilled attorney, so you fully understand your legal rights and options. Attorney Kira Fonteneau has over 13 years of experience aggressively advocating for working people in Alabama. Kira was recently appointed president of the American Civil Liberties Union of Alabama, and she has a successful track record obtaining justice for those whose civil rights have been violated in the workplace.  For a consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our online contact form.

Sexual Harassment in Healthcare - Kira Fonteneau

Sexual Harassment in the Medical Field

Gender inequality has existed in the medical field for centuries. It took until the mid-1850s before the first woman was admitted to a medical school in the U.S., and Harvard Medical School didn’t admit a female student until 1936. Today, there are roughly the same number of men and women attending medical school. But despite reaching parity at the academic level, women still only make up approximately one-third of the nation’s physicians.

The gender gap is even wider in positions of authority within the health care field. While the field has far more women than men overall, women only hold about 15% of the management positions, and only about one out of five hospital CEOs are women. Because of these disparities, women are frequently subjected to various forms of discrimination and harassment in the medical workplace. And the male-dominated hierarchical structure (and other factors unique to the health care industry) has created an environment where sexual harassment is prevalent.

Widespread Sexual Harassment in the Medical Field

As more women have entered the healthcare field, the rate of sexual harassment has also increased. Women in the industry experience sexual harassment from the time they begin training for their career. For example, as many as half of female medical students have reported being sexually harassed. In addition, 30% of female members of medical faculty say they have been sexually harassed in the past two years.

It gets no better once women enter their residency and start working in hospitals, laboratories, and other medical facilities. 30% to 70% of female physicians report they have experienced sexual harassment in the workplace. This percentage is higher than in most other fields, and there is little evidence that the health care industry is doing anything to stop it. According to an article by the Harvard Business Review, “the efforts of many healthcare organizations and medical centers tend to go little further than avoiding litigation.”

There are several reasons sexual harassment occurs so frequently in the medical field:

  • Management Disparities: the positions of power in the health care field are overwhelmingly dominated by men, with women accounting for the vast majority of subordinates. Transgressions are frequently tolerated in this environment, because those in power tend to “look out for each other.”
  • Isolated Work Environments: Women who work as residents and in hospitals, clinics, and laboratories often work alone with their supervisors. This creates a climate where supervisors can harass subordinates without other witnesses. More than half of all reported incidents of sexual harassment in the medical field occur in isolated work environments.
  • Fear of Retaliation: One of the major reasons sexual harassment continues to occur at alarming rates within the health care field is that many women do not report it fearing negative consequences. Not only do victims of sexual harassment fear losing their job, they are also afraid that they will be labeled “moody” or “difficult to work with” or many other derogatory labels that could foster a hostile work environment and cost them career advancement opportunities. And for residents, a sexual harassment claim could mean not getting a letter of recommendation from their supervisor, which is often their only route toward securing future employment.

Sexual harassment is not only a problem between supervisors and subordinates in the medical field, females are also frequently harassed by patients whom they often work with in an isolated environment. Unfortunately, most women in the medical field do not report sexual harassment by patients because of fear they may be publicly ridiculed or even lose their jobs.

Combating Sexual Harassment in the Medical Workplace

In the wake of the #metoo movement, a growing number of female physicians and other health care workers are reporting incidents of supervisor and patient harassment. However, there is still a long way to go before females will be adequately protected from sexual harassment and sexual advances in the medical workplace.

There are steps female doctors and other health care workers can take to help protect themselves from being subjected to this behavior:

  • Avoid being alone with a male supervisor or male patient;
  • End a conversation, examination, or doctor-patient relationship if harassment or abuse occurs or if you feel unsafe;
  • Report any questionable behavior by a supervisor or patient. In most medical workplaces, there are channels set up for this specific purpose;
  • Speak with an experienced workplace discrimination lawyer about your legal rights and options.

Contact Alabama Employment Attorney Kira Fonteneau

If you have experienced sexual harassment in the workplace, you need strong legal counsel in your corner advocating aggressively for your rights and interests. For 13 years, attorney Kira Fonteneau has stood up for working people in Alabama. Kira knows this area of the law, and she works closely with her clients to investigate their case and explore every potential legal avenue toward obtaining relief.

For a consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our online contact form.  

FMLA and the Military - Fonteneau Law

Does the Family and Medical Leave Act apply to Members of the Military?

The Family and Medical Leave Act (FMLA) is a federal law enacted in 1993 designed to allow covered employees to take unpaid and job-protected leave for qualified medical and family reasons. Under the FMLA, covered employees may take off up to 12 weeks per year to care for themselves or eligible family members. The law was intended to balance the demands of the workplace with the needs of families, and although the FMLA does not require employers to provide paid leave, employers can do so voluntarily. In addition, employees may substitute any paid leave they have accrued for FMLA leave.

Basic Coverages under the FMLA

Under the original provisions of the Family and Medical Leave Act, covered employees may take up to 12 weeks of unpaid leave per year for these purposes:

  • To care for a newborn child;
  • To care for a child adopted or placed into their foster care;
  • To care for a spouse or parent who is seriously ill;
  • To care for a child under the age of 18 seriously ill, or a disabled child of any age seriously ill;
  • For an employee to recover from their own serious illness.

FMLA Amendments for Military Families

In 2008, Congress amended the Family and Medical Leave Act to provide two new types of leave for covered employees with qualified family members in the military;

  • Active duty family member leave (also known as “qualifying exigency leave”); and
  • Military caregiver leave.

Active Duty Family Member Leave

Active duty family leave allows covered employees to take up to 12 weeks of unpaid, job-protected leave per year for “qualifying exigencies” that arise when an employee’s spouse, parent, or child is on covered active duty or has been called to covered active duty.

For members of the Regular Armed Forces, “covered active duty” means deployment to a foreign country (this would include international waters). For members of the National Guard and Reserves, “covered active duty” means deployment of the member with one branch of the Regular Armed Forces to a foreign country to support a contingency operation.

There are 8 qualifying exigencies for which an employee can take active duty family member leave under the FMLA:

  • Short-Term Notice Deployment: An employee may take up to 7 calendar days to deal with issues that may arise from the notification of an impending call to covered active duty.
  • Military Events and Related Activities: Employees may take leave to attend military programs, ceremonies, events, briefings, family support and assistance programs, and other activities related to deployment to active duty.
  • Financial and Legal Arrangements: Updating bank accounts, wills, powers of attorney, etc.
  • Childcare and School Activities: Arranging care and schooling for the child of a family member called to covered active duty or is already deployed abroad.
  • Counseling: Employees may take leave to attend counseling for themselves, the deployed family member, or the child of the deployed family member.
  • Rest and Recuperation (R&R): Employees may take up to 15 days of leave to spend with a military family member on short-term R&R leave during active duty deployment.
  • Post-Deployment Activities: Employees may take time off to attend ceremonies, programs, events, briefings, and related activities that occur after the family member returns home from active duty, or to address issues and events that arise from the death of an active duty military family member.
  • Parental Care: Employees may take leave to care for a military family member’s parent who is unable to care for themselves, and whose care is necessitated by the family member’s active duty deployment.

Military Caregiver Leave

Eligible employees may take up to 26 weeks of unpaid, job-protected leave to care for a covered service member. “Covered service member” is defined as a current military member or veteran discharged (other than dishonorably) within five years of treatment who has incurred or aggravated a serious injury or illness while in the line of active duty.

A serious injury or illness is one that makes an active duty member medically unfit to perform his/her duties. For a veteran, a serious illness or injury is one that rendered them medically unfit to perform their military duties, qualifies them for certain VA benefits, or inhibits their ability to work.

Eligibility for FMLA for Military Families

For employees with military family members to be eligible for leave, they must meet all the criteria to be eligible for the Family and Medical Leave Act:

  • Work for a private employer with 50 or more employees, or work for a federal, state, or local government agency or elementary or secondary school;
  • Have worked for a covered employer for at least the past 12 months;
  • Have worked at least 1250 hours during the past 12 months;
  • Work within 75 miles of a site that has at least 50 employees.

FMLA Anti-Retaliation Provision

It is unlawful for a covered employer to deny, restrain, or interfere with an employee’s right to take a leave under the Family and Medical Leave Act. It is also unlawful for a covered employer to retaliate against an employee or prospective employee or discriminate against them for exercising (or attempting to exercise) an FMLA right. If you or someone close to you has been subjected to retaliation or discrimination for exercising an FMLA right, or an employer has engaged in any other discrimination in the workplace, contact an experienced employment law attorney to assess your case and review your legal rights and options. Contact Fonteneau Law at (205) 564-9005 or through our website contact form.

Human Resource Employees and Retaliation - Kira Fonteneau Attorney at Law

HR Employees can be victims of Retaliation, Too

Many employees view Human Resources as the enemy, helping management to carry out unfair or discriminatory policies.  Did you know that Human Resources employees who advocate for employees can be the victims of retaliation themselves?

HR Employees May Help Other Employee Victims of Discrimination

Recently, the Eleventh Circuit decided that Title VII protects HR representatives from retaliation in certain situations.  The Case, Gogel v. Kia MFG. of Georgia, Inc., involved an HR employee who received a complaint from an employee.  The employee reported that she felt another woman was being treated more favorably because of a romantic relationship with a senior manager.   When Gogel reported the complaint through her chain of command, she was discouraged from pursuing it.

Later when Gogel complained about being overlooked for a promotion, she concluded that the reason was her prior advocacy for the employee who complained and gender discrimination.  After Gogel filed her Charge of Discrimination with the EEOC, management approached her to sign a document promising not to discuss her charge of discrimination, get other employees to give her information about her Charge, or to encourage other people to file Charges against the company.  Later Kia accused Gogel of working with another employee to further their Charges of Discrimination against the company because they had the same lawyer.  The company decided that the unproven allegation she was helping another employee with her Charge violated her duties as a Human Resources employee and terminated her employment.

The Eleventh Circuit decided that Human Resources employees can help the employees they work with sometimes.  The court explained that Title VII protects HR employees who try to resolve employee complaints internally if the employer fails to respond adequately and the HR employees actions were reasonable.

Get Help Before You Make a Decision

The bottom line is that Human Resources employees should not be afraid to advocate for their employees and not just co-sign unlawful behavior by their employers.  It is, however, a good idea to consult with an attorney to determine whether the course of action you propose to take is protected.  Kira Fonteneau is an employment lawyer with several years of experience helping Alabama employees level the playing field against their employers.  If you think you need to discuss an employment issue, call us at 205-564-9005.

Employment Discrimination and workers' rights attorney in alabama

I Believe my Rights have been Violated in the Workplace – What Can I do About It?

Employees who face a difficult work environment are typically under a great deal of stress, and they often have a hard time focusing on their jobs. This could be due to disagreements, disputes, or hostility from a manager, supervisor, co-worker, or multiple parties. Workplace challenges can sometimes be chalked up to personality clashes, differing worldviews, and other common sources of conflict. However, when those disputes arise because of an employee’s membership in a protected class like race, sex, pregnancy religion or national origin, employers and co-workers may cross the line into violating the law.

No matter where you work or what type of job you do, you are entitled to certain rights in the workplace. For example, your workplace should be free of:

  • Safety Hazards: It is the responsibility of every employer to take reasonable measures to ensure a safe work environment. For example, if you work with dangerous machinery or equipment, you should be wearing the appropriate safety gear. You also have a right to expect a workplace free of toxic substances and other hazards that could make you ill.
  • Discrimination: Your employer is not allowed to discriminate against you on the basis of age, race, gender, religion, disability, national origin, pregnancy, or any other protected class. For example, your employer is not allowed to terminate you, turn you down for a promotion, or deny a pay raise simply because of a protected characteristic.
  • Harassment: You should not have to endure offensive, humiliating, intimidating, or threatening comments or actions because of a protected characteristic. One common example of this is sexual harassment. Whether it is a manager or supervisor harassing an employee, or the employee being harassed by another co-worker, workplace harassment is against the law and should never be tolerated.

What Can I Do If I Believe my Rights have Been Violated in the Workplace?

If you feel that one of your protected rights was violated at work and you wish to take action, you have some options available. These include:

Informal Negotiations

Some employment law violations can be addressed by resolving the issue directly with the employer without the need to take the matter to court. This often involves reporting the concern to the employer and giving them a chance to respond. For example, you may be seeking certain forms of relief; such as being transferred to another department where you won’t have to work around the individual who was harassing you or an adjustment to your pay to conform to what the employer is paying your co-workers.

Filing a Charge of Discrimination with the EEOC

If reporting it internally does not work, you may need to take further legal action. For most types of discrimination violations in Alabama, you must first file a complaint with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit. If you think you need to file a Charge, you should contact a lawyer to help you draft your Charge.

The EEOC may investigate your claim, ask you to participate in mediation with your employer, or take other actions. At the end of an investigation, if the EEOC finds conclusively that a violation of law occurred they will make a cause finding and attempt to get the employer to settle with you.  This is rare. Normally, the EEOC simply issues a “right to sue” letter that says it cannot determine that a violation occurred. This does not mean you do not have a case.  It merely gives you the right to file your lawsuit in Court. There are very tight deadlines in which to file an EEOC charge. In Alabama, EEOC Charges must be filed within 180 days from the last act of discrimination or they will be lost forever.

Private Litigation

Once you receive a “right to sue” letter, you can proceed with litigation against your employer. You have only 90 days from the time you receive the Right to Sue Letter to file your lawsuit. When preparing your lawsuit, you must retain as much documentation as possible to prove that your employer violated the law. This may include company documents and emails, photos, the testimony of witnesses, video recordings, audio recordings, and many other things. You should also work with an experienced attorney who knows how to present the facts and evidence in a way that is likely to persuade the court.

Speak to a Skilled Alabama Civil Rights Attorney

If you believe your rights have been violated in the workplace, there are some legal avenues available to you. The first step is to contact an experienced civil rights lawyer. Your lawyer can thoroughly assess your case, advise you of your rights, and review your options.

Since 2005, attorney Kira Fonteneau has been an aggressive advocate on behalf of working people in Alabama who have experienced workplace discrimination. Kira has an in-depth understanding of the state and federal discrimination laws and a successful track record of pursuing these types of cases in both the state and federal courts. To schedule a consultation with one of our attorneys, contact our office today at 205-564-9005 or send us a secure and confidential message through our online contact form.