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Coronavirus Discrimination Concerns in The Workplace

Coronavirus Discrimination Concerns in The Workplace

 

The Covid-19 pandemic has not only disrupted businesses, caused millions of job losses, and forced many employees to work from home, but it has also created unique workplace concerns related to employee discrimination. Coronavirus discrimination concerns in the workplace. Many employees are wondering whether their employer is discriminating by asking them to take a reduced pay or laying them off.

Other concerns may relate to their changed work responsibilities and job profile if the employees are now working from home. Some workers may even want to know whether their employer has the right to take their temperature before they step into the workplace or send them back home if any apparent signs of fever or respiratory illness are present.

Guidance for Workers

Whether in normal times or in the present situation of the coronavirus pandemic, your employer usually has the right to send you back home if you present any obvious signs of sickness (not just Covid-19). But in the present situation, your supervisors must exercise restraint and show compassion while following all the necessary CDC guidelines to prevent the spread of the virus.

If your employer overreacts on finding that you have symptoms of illness, acts in a way that makes you feel humiliated, or singles you out for taking temperature or other preventative steps, they could be committing discriminatory behavior against you.

Employment decisions as well as workplace safety policies and practices must be uniform for all workers, and your employer cannot rely on some generalities to presume that you are at a higher risk of infection than other employees.

The Law Protects Your Rights

Under the ADA (Americans with Disabilities Act), certain restrictions have been imposed on employers regarding what questions they can ask with regard to your medical status as an employee. Secondly, under the ADA provisions, the EEOC (Equal Employment Opportunity Commission) considers taking a worker’s body temperature to be a “medical exam”.

Your employer is prohibited from requiring you to take a medical exam or asking disability-related questions unless:

  1. The employer can show that the medical exam or inquiry is job-related and consistent with the needs of the business
  2. The employer has a valid reason to believe that the worker poses a “direct threat” to the safety or health of himself or others, which cannot otherwise be reduced or eliminated by reasonable accommodation

Your employer should apply discretion and analyze each case on its individual merit and make a non-discriminatory decision based on the available information. Even during the national emergency situation of Covid-19, your employer is still subject to all state and federal laws related to workplace discrimination and retaliation against workers.

Your employer may be in violation of these laws, if you believe that they are apply these rules and regulations differently to different classes of workers based on your national origin, race, or other protected classes.

In these situations, it is best to have an experienced workers’ rights lawyer by your side in Alabama. They can provide you the right legal advice and make sure that your rights are fully protected in the current challenging circumstances of coronavirus.

Discrimination against Ethnic Workers during Covid-19

The history of epidemics shows that there could be unwarranted attacks against people belonging to a certain nationality or ethnic origin. This has already happened in recent years in the case of Ebola and Swine Flu (H1N1) pandemics.

If you are an ethnic worker, you need to be vigilant in protecting yourself against any potential workplace harassment, discrimination or retaliation stemming from your employer, supervisor or co-workers. Workers of Asian descent (especially of Chinese origin) are at a particularly high risk to be made scapegoats as if they are individually responsible for causing Covid-19.

Coronavirus Discrimination Concerns in The Workplace

There are already calls on social media and elsewhere for boycotting everything Chinese, and discriminatory behavior could also occur at your workplace in Alabama. Your employer has a legal obligation to take the necessary steps to prevent such discriminatory actions at your workplace and take your complaints in this regard with utmost seriousness.

The CDC has already urged people to not show prejudice against individuals of Asian descent in the current fearful environment caused by the novel coronavirus. The CDC says that no one should presume that if someone is of Asian descent, they have a higher likelihood of being a carrier of Covid-19.

Recommendation for Employers

Employers in the current environment should focus on two things to avoid discriminatory actions against their workers: (a) Make sure that you are treating all your workers in the same manner during Covid-19, irrespective of their nationality or ethnic origin; and (b) Make sure that your employees are not indulging in direct or indirect harassment or discrimination against co-workers of Asian descent.

Employers need to make sure that they do not base a decision to remove or bar an employee from the workplace on their ethnicity or nationality. If as an employee, if you find that your employer only quarantining workers of Asian descent or knowingly ignoring hostile workplace conditions against ethnic employees, you should consult with a seasoned workers’ rights attorney in Alabama.

Speak to a Dedicated Workplace Discrimination Lawyer in Alabama

Attorney Kira Fonteneau has successfully represented countless workers in state and federal courts across Alabama. Kira is committed to helping you in your fight against the potential illegal actions of your employer or government misconduct. To schedule a free consultation, call us at 205-564-9005 today.    

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.

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.

Should I Stay or Should I Go? Resign or Wait For Termination

Most people who call our office are at their wit’s end.  They think they a termination is coming, they are being harassed, or worse; their employers are making them choose between termination or resigning. Employees who feel that they are victims of discrimination often wonder what they should do.  The answer depends on the facts of each case, but as a general rule, when it comes to pursuing a legal claim, it is often best to stay put.

If you feel that you are about to be fired

Most companies do not fire employees out of the blue.  Usually, there are signs that the employer is taking action.  If you think your employer is building a case to fire you, take action.  First, get your résumé together and begin to get ready for your future at a different company.  Next, try to determine if you are being singled out for an illegal reason. Are people who are different from you getting less punishment for the same infractions? If you suspect that your employer is targeting you because of your race, sex, pregnancy, religion, disability, taking Family and Medical Leave, or use of workers’ compensation benefits, it is important to gather your thoughts and evidence of the improper behavior.  You may have emails, voice recordings, videos or other evidence that will help you if you decide to file a lawsuit. Once you gather evidence and want to know if it proves discrimination, call our attorneys to get a consultation to find out if you have what you need.

If you suspect discrimination, report it

If you suspect that your employer is treating you differently because of your race, sex, pregnancy, religion, disability, or because you took FMLA, you must report it to management or Human Resources, even if you think it won’t do any good.    Making the complaint is the first step to ensuring that you preserve your claims of discrimination.  It also gives your employer an opportunity to do the right thing.  If you do not report discrimination or fail to tell your employer that you think the discrimination was based on your race or sex or other protected category, you may be waiving your claims.   Even if you think that you do not want to play the race, sex or disability card, it is important that you do and preferably in writing.  This is also a good time to discuss your concerns with an attorney who can help you lay out the important facts.

If your employer gives you the option: Termination or resign

In general, it is not a good idea to resign to avoid termination.  Many people feel as though it will look bad if they have a termination in their employment history.  While that may be true, there is no practical benefit to resigning and it could mean that you lose your right to collect unemployment benefits. Most large employers have policies preventing them from sharing the details of your termination.  If you later file for unemployment or claim that you were discharged in your lawsuit, your employer will pull out your resignation letter and say that you chose to leave on your own.  This could ruin your claim.

If you feel that you are in danger

Although the general rule is that you should let the employer make the first move when it comes to termination if you feel that you are in danger and you have reported the illegal behavior to your employer, you may find it is in your best interest to resign.  Again, if you have time, it is best to contact an attorney first, but always place your physical and mental well-being ahead of a potential lawsuit.

Kira Fonteneau is an experienced attorney who can help guide you protect your rights.  If you feel like you are about to be fired and would like to discuss your next steps, contact us  or call us at 205-564.9005.

The Ugly Truth About Workplace Discrimination Against Veterans

It may seem unthinkable that an employer would single out a veteran or service member for discrimination at work, but it happens quite a lot. Whether it is a general misunderstanding about the military, an outright negativity toward those who serve, or more subtle discrimination, such as a desire to avoid prolonged absences for deployments or other obligations, there are employers who actually try to avoid hiring veterans and service members. For some, it is an irrational fear that veterans will not be stable mentally or successful in terms of career productivity.

The ugly truth about veteran discrimination is that it can be easy to spot, yet hard to prove. Fortunately, employment discrimination lawyers may be able to help in some situations.

Common Reasons for Employers Discriminating Against Veterans

 

While there are sadly those who may just have a pure disdain for the military, the vast majority of veteran discrimination cases are not so obvious. Here are some of the most common types of unlawful discrimination against veterans and military service members:

Ignoring Veterans’ Preference Laws

 

Under Alabama law, all private employers are “authorized” to create and follow a veterans’ preference hiring policy. This means that private employers are allowed to apply a preference in favor of veterans, but they are not required to do so. Public employers, however, are required to give veterans extra points in the hiring process. Section 36-26-15(b) of the Alabama Code even extends these rights to wives of some severely disabled or deceased veterans. Federal law also requires special hiring authorities for some veterans.

 

Refusing to Hire or Retain Reservists and Guard Members

Those currently serving in the Reserves or Guard have additional protections under both Alabama law and federal law. You are entitled to a leave of absence, but there are several key rules that apply to also protect employers in the event of an extended long-term deployment. Some employers choose to unlawfully discriminate in hiring to “avoid the trouble.” Some employers will also try to convince reservists to quit when they are activated, sometimes finding creative ways to force the employee to leave employment, rather than keeping the job open.

 

Presumption of PTSD or Mental Health Problems

USA Today reports that many employers have unfair, biased views of veterans, assuming that they all suffer from mental health issues or that post-traumatic stress disorder (PTSD) will cause them to be a liability in the workforce. While this stereotyping may be completely offensive, it does happen. Veterans should be mindful of warning signs of discrimination in the workplace.

 

Presumption of Physical Disability

Since many veterans returning from combat service may have suffered physical injuries during their service, some employers may come to the generalized conclusion that “most” or “all” veterans are broken (mentally or physically). Rather than seeing veterans as resilient, highly-skilled, and dedicated employees who add value, these employers may see veterans as a liability risk or more likely to file a claim for injuries. All are unsupported by evidence. Of course, that’s the nature of discrimination – it is an employment practice that focuses on factors that have nothing to do with ability or skill.

Veteran Discrimination in Your Workplace?

 

If you are a veteran who is suffering discrimination because of your status as a veteran, you may have options. Do not let someone trample on your rights. You have worked hard to build your career, and you deserve to continue building on your hard work. Contact the attorneys of Fonteneau & Arnold, LLC. With over 20 years of combined experience representing employees in labor and discrimination disputes, we understand what it takes to fight discrimination. Do not just worry about your situation; call us to get real advice today.

Am I Exempt From Time and a Half?

There are a lot of different ways that an employer can pay an employee. Some workers receive a weekly paycheck, some are paid by the hour, and others have a set annual salary, which is broken into bi-weekly payments. The variations are pretty much unlimited. However, federal law still requires that workers be properly compensated for the time they work, regardless of how they are paid. Under the Fair Labor Standards Act (FLSA), employers are required to pay minimum wage and overtime pay for their employees. Not all employers or employees are eligible for these protections.

What is Time and a Half?

 

Time and a half is often misunderstood, but it is pretty simple. Your employer is supposed to pay overtime for any hours worked in excess of 40 hours within any seven-day period. It does not matter if work is at night, on the weekend, or you work a holiday. Just count any seven-day period, and if your hours exceeded 40, there should be overtime pay for the excess hours. Obviously, there are plenty of exceptions and nuances to this, but that is the general rule. Overtime should be paid at 1.5 times your regular wage.

 

Is My Employer Exempt?

 

As a federal law, FLSA applies to employers who engage in interstate commerce with at least $500,000 in annual business. Interstate commerce is a tricky concept. In general, interstate commerce means making things that will ultimately be sold across state lines, performing services across state lines, buying or selling things in different states, handling or transporting things across state lines, working on things in other states, or any other kind of work that implicates more than one state.

Big corporations are usually obvious examples, but even a small employer who sells items online could be covered by the law, provided the $500,000 limit is met.

My Employer Does Not Meet the $500,000 Limit or do Anything Out of State

 

Even if your employer does not meet the monetary threshold or obviously participate in interstate commerce, FLSA specifically covers the following:

  • Hospitals (private or public)
  • Nursing Homes (or any type of facility that serves the aged, sick, or disabled)
  • PK-12 Schools
  • Colleges and Universities
  • Federal/State/Local Government

The following household employees might be covered if they work at least eight hours per week and earn more than a predetermined annual threshold of income from a single employer:

  • Housekeepers
  • Cooks
  • Gardeners
  • Home Health Aides
  • Nurses

An individual employee who works in interstate commerce for a designated period of time may still be covered, even if the employer generally does not.

Is My Profession or Job Title Exempt?

 

This is one of the more common ways employers try to avoid paying overtime – they ‘classify’ workers as being one of the following job types. These are all exempt from the overtime protections of FLSA Overtime Protection, just to mention a few:

  • Executives
  • Administrative
  • Professionals
  • Teachers
  • Lawyers
  • Most Sales Employees
  • IT / Skilled Computer Tech Jobs
  • Fishermen
  • Most Small Farm Workers (less than 500 workers)
  • Casual Babysitters
  • Most Commissioned Retail Workers
  • Many More

My Employer Says I am Exempt, but I Disagree

 

Many employers will give a blue collar worker an ‘administrative’ title like Operations Manager or Office Manager, even though the person’s primary job duties are heavy labor or non-exempt types of work. This is done so the employer can classify the worker as a professional or administrative exemption in order to avoid paying overtime. Other employers might say that because they pay a salary, rather than hourly wage, this exempts the employee. This is untrue. The Department of Labor provides great resources for you to review.

If you believe your wage rights are being violated, call the attorneys of Fonteneau & Arnold, LLC. One call could save you thousands in lost wages, so do not keep wondering. Talk to an attorney who can help you understand and fight for your rights today.