Investigations
Discrimination and Denial of Reemployment to Uniformed Services Members and the National Guard
Many members of the armed services and national guard are returning home from military duty in the Middle East. The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prevent adverse actions against members of the “uniformed services” including the Army, Navy, Air Force, Marine Corps, Army National Guard, Air National Guard, commissioned corps of the Public Health Service, and other persons designated by the President during times of war or national emergency. USERRA seeks to ensure that upon their return from service, employees will be free from discrimination in their place of employment as well as be able to retain their employment and benefits.
USERRA covers both voluntary and involuntary service members. You do not have to be actively deployed for military duty to be covered under USERRA. The Act also covers those persons in uniformed service training programs and periods of time during which medical or technical exams are being administered.
Under USERRA, an employer may not deny initial employment, re-employment, promotions, or other benefits of employment because a person is a member of the uniformed services. USERRA also protects a service member’s right to re-employment upon his or her return from military service. Generally, in order to qualify for reemployment, the cumulative length of the current and previous absences from the position with that employer must not exceed five years (subject to various exceptions including service during emergencies, national security operations, and war). Once the uniformed services member returns home, he or she must seek reemployment within a specific period of time, which varies based on the length of the military service. Upon reemployment, the employee will be returned to a position which may not have been the previously held position but which must be comparable to that which the employee would have held if continuously employed with the employer.
Nichols Kaster & Anderson has experience representing employees who have been discriminated against or denied reemployment because of their military status. Please contact our office if you think you may become involved in litigation against your employer for violations of USERRA or other anti-discrimination laws.
Immigration Law and the Rights of Immigrant Workers
The rights of immigrant workers are increasingly being addressed by national organizations and the legal community. Undocumented workers are often forced to take low-paying, dangerous jobs. When they begin to organize in hopes of creating safer and better paying jobs, these workers are often threatened with deportation by their employers. Additionally, increasing national attention on undocumented workers (often called “illegal aliens”) has resulted in a reduced workforce, as workers are choosing not to place themselves in high-profile locations that might be watched by U.S. Border Patrols and immigration officials.
In response to the changing social climate, many organizations and legal practices are addressing the social and legal impact of maltreatment of immigrants in the United States. The recent focus on guest-worker programs and other legislation affecting immigrant workers highlights the unique legal problems facing this contingent of the American work force. At Nichols Kaster & Anderson, we will continue to help immigrants overcome the legal challenges they face and ensure they receive fair treatment in the workplace. For more information about these issues, see the following websites:
Donning and Doffing Claims under the Fair Labor Standards Act
Congress passed the Fair Labor Standards Act in 1938 in an attempt to provide minimum wage and overtime pay guarantees to employees. The FLSA requires employers to pay employees for all time worked, which includes any activity that is part of the job or that is necessary to perform part of the job. This means that employers will sometimes have to pay employees for tasks the employees perform before they clock in and after they clock out. In IBP, Inc., v. Alvarez, the U.S. Supreme Court held that employers must pay employees for time spent donning and doffing unique protective gear (in this case, metal aprons, vests, armguards, and special gloves) and walking between the locker room and the production floor at the start and end of each shift. However, time spent donning and doffing non-unique gear (e.g., hard hats, gloves, boots, or hairnets) is not compensable. The Court also said that employees must be paid for time spent waiting to don protective gear if the waiting time is an integral part of the employees’ principal work activities.
Nichols Kaster & Anderson recently filed a lawsuit on behalf of workers at Celestica Corporation, alleging that Celestica fails to compensate its workers for the time they spend donning and doffing protective gear and waiting in line to have the gear checked before beginning their shifts. Given the recent Alvarez decision, we are particularly interested in donning and doffing claims. For more information about these issues, see the following websites:
- Nichols Kaster & Anderson’s Overtime Cases website
- U.S. Dept. of Labor website with FLSA information (Aug. 15, 2006)
- U.S. Dept. of Labor, “Wage and Hour Advisory Memo No. 2006-2” (May 31, 2006)
- Minneapolis Star Tribune, “Suits Against Poultry Plants Focus on when Workday Starts” (Nov. 30, 2005)
- Press Release, “BMW Agrees to Pay $629,000 in Back Wages for 1,224 Workers at South Carolina Assembly Plant” (Aug. 1, 2006)
- Texas Lawyer, “Effects of the U.S. Supreme Court’s Don-Doff Ruling” (April 3, 2006)
Mortgage Industry Employees
Jobs in the mortgage industry require a lot of hard work and, unfortunately, mortgage companies have notoriously poor pay practices. As a result many loan officers, originators, consultants and processors are denied their rightful compensation.
Frequent pay violations in the industry include:
-
Job Misclassification: Employees are often improperly classified as exempt from overtime pay when the nature of their work entitles them to overtime pay under the law.
-
Off-the-Clock Work: Some companies have the policy that overtime is only paid when that time is pre-approved by management. Consequently hourly mortgage employees regularly have to underreport their hours worked on their time records and, thus are not paid the full amount that they deserve.
-
Meal and Rest Breaks Violations: Many mortgage employees have to work through their meal or rest breaks because of the amount of work they have to get done. Certain states require that employees be given their allotted breaks every day or employers will be held liable under state law.
Our firm has extensive experience representing mortgage employees in overtime cases. If you worked as a loan officer/consultant/originator or a loan processor with a bank or mortgage lender in the last three years and were denied some or all of your overtime pay, please contact us, for a free review of your possible claim.
|