Wednesday, October 29, 2008

Workplace Retaliation

Retaliation due to raising issues against the employer is not only unethical but also unlawful.

Retaliation often results when an employee reports an illegal or unlawful act against the employer and the latter retaliates by means of firing said employee or decreasing her or his benefits.

Retaliation may be committed not only against the employee who filed a complaint. It may also be committed against fellow employees who serve as witnesses or in any manner participated in the case.

Even in school setting, retaliation is also practiced. Take the example of a drama teacher at Yale University where after reporting an incident of sexual harassment she was dismissed from work.

It is of common knowledge that retaliation is proscribed and not taken sitting taken down. In California, the Fair Employment and Housing Act specifically make workplace retaliation illegal.

Many cases of retaliation have been filling up the court dockets. It only signifies that many employers have retaliated against those who filed cases or complaints or participated in any proceedings against the employer.

The California Supreme Court made it clear, however, that supervisors who allegedly retaliated cannot be held personally liable for such act.

Retaliation is never helpful. It could never cultivate a healthy environment between the employer and employees and among employees themselves.

Monday, October 27, 2008

ADA Provisions on Reasonable Accommodation

A disabled employee or worker has certain privileges that other employees do not normally enjoy, even before being hired and when is employed. Reasonable accommodation is a right guaranteed by law to individuals with disabilities under the Americans with Disabilities Act (ADA).

The article, “Five Questions Regarding Reasonable Accommodation Employers Should Know”, posted on October 14, 2008, answers some of the questions regarding reasonable accommodation, how to handle a request and identifies some of its common forms.

However, the reasonable accommodation that the law provides has certain limitation to employers. According to law, a disabled employee can be granted this privilege provided it will not cause “undue hardship” to an employer.

Undue hardship means “a significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation”. It refers not only to financial difficulty but also to reasonable accommodations that are “unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business”.

Under the ADA, when a request for reasonable accommodation has been made, an employer – if it will not cause him undue hardship - has no recourse but to grant the request.

Reasonable accommodation can take the following form:

• Modification or adjustment in a job application process or during the hiring process

• Modification or adjustment to the work environment

• Modification or adjustments to enable a disabled employee to have equal benefits and privileges as those employees without disabilities

A disabled employee who encounters difficulty seeking modification or adjustments in his job should immediately consult with an employment lawyer regarding possible violations of this ADA provision.

Wednesday, October 22, 2008

Lilly Ledbetter bill, a Move for Fair Pay

Some of us may still remember the story of Lilly Ledbetter. She was once a supervisor in Goodyear Tire plant who discovered that for several years that she had been working in the said company – she was receiving far less than her male contemporaries.

She sued the company in courts. Theory of the case is discrimination in terms of payment. The courts agreed with her, that indeed this was a case of discriminatory pay practices. But upon reaching the Supreme Court, the highest tribunal overturned the decision of lower courts.

The Court said that according to the law, Ledbetter should have filed the discrimination complaint the moment the discriminatory act began.

The Supreme Court, understandably bound by law, didn’t consider the argument that she couldn’t have filed the same on time as she had no way of knowing that a discriminatory act was being committed against her.

Ledbetter lost in her battle.

Taking notice of the soundness and logic of Ledbetter’s situation, a bill was made in her name and recently, the Senate voted on it to become the Lilly Ledbetter Fair Restoration Act. It substantially provides that each new paycheck be subject to a discrimination complaint.

Presently, the issue of fair pay and discrimination against women reaches the political debate.

It is likely that new legislation and measures in labor and employment laws will take place considering the economic downturn that the country, nay, the world, is experiencing. With the feisty campaign, economic situation and all the others that are happening out there – one can only hope and pray.

Friday, October 17, 2008

Quitting the Job: Not a Condition Precedent for Filing Disability Claim

Disability can often get in the way of our work. It prevents us from being efficient and effective. It affects not only our physical being but also our financial state and our personal interaction with others.

The fact remains that it is during disability that we should have the most of everything. We need the most care, understanding, money and support.

To help us with the financial burden, we can file a disability claim with the Social Security Administration (SSA).

Disability benefits can be under the supplemental security income (SSI) program or social security disability insurance (SSDI). Hence, we come to the query of whether we have to quit work or not before we can file our disability claim.

No! The applicant need not stop working before filing with SSA. Practically, he or she need not wait to succumb totally to such disability. In fact, it is advised to file the disability claim immediately.

In filing a disability claim, the primary consideration is that the applicant has a medical illness that is expected to last for not less than one year and such illness prevents him or her from performing any substantial gainful activity.

Needless to say, the applicant must present proof of his or her medical condition to support the claim of disability.

Becoming disable is not an option for me but in the event that I become one, at least I know what to do.

Tuesday, October 14, 2008

Arthritis as an ADA-Defined Impairment

A growing number of California workers are reportedly afflicted with arthritis and it is fast becoming a medical concern for many employers as an increasing number of employees are filing disability discrimination claims under this impairment.

The article, “Arthritis as a Medical Disability in the California Workplace”, posted on October 7, 2008, noted this growing affliction among California workers and warned employers of making discriminatory acts against workers who have arthritis.

Under the law, an employer is prohibited from discriminating against any worker based on his disability or medical condition. However, to be able to file discrimination claims against an employer, a worker must first determine whether his medical condition qualifies as a disability as defined by law which is the Americans with Disabilities Act (ADA).

The ADA defines disability in three ways:

1. a physical or mental impairment must substantially limit one or more major life activities

2. a worker has a record of such an impairment

3. a worker is regarded as having such an impairment

On the other hand, a physical impairment is defined by ADA as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine."

But not all the diseases or conditions covered by this definition are actually listed under the ADA or the regulations that implement it, which include a disability such as arthritis.

Arthritis, as a medical condition, is a rheumatic disease characterized by inflammation of the joints. It can be caused by several factors such as injury, metabolic abnormalities, hereditary factors and infections.

However, having a medical condition like arthritis is not a reason for an employer to discriminate against a worker or employee.

If you believe you have been a victim of discrimination due to your disability or impairment, you have to consult with a lawyer immediately.

Tuesday, October 7, 2008

Texting might have caused the fatal train accident

Another blow to the government’s reinforced program and measure against the use of mobile phone while driving has been delivered.

Recent developments in the still on-going investigation of the fatal train accident in California reveals that the Metrolink engineer who was driving the train sent text messages moments before the crash occurs.

One expert estimated that the last text message was sent approximately five seconds after the engineer drive through the red signal. Others said that the last message was sent after the light which could have been the cause of the failure of the driver to see the oncoming train.

While Los Angeles Times reports that according to the preliminary information released by the federal authorities, the Metrolink engineer sent a text message from his mobile phone nearly 22 seconds before the actual impact. The driver was said to have also received text a minute earlier. All in all, he sent 57 messages while on duty.

With these findings, it becomes clear that the engineer was in perfect good health before the accident – thus, negating some theories linking his health condition to the crash.

It becomes clear that he was violating the Metrolink policy, and the law, against using cellular phones while on the job. It somehow becomes clear now whose negligence, at least initially, was it that produced the fatal and horrible train accident.

With this, inevitable legal consequences against Metrolink will surely follow. The victims of this accident, we need not say, needs justice, vindication and reparation for their losses – loss of life, damages and injuries to them and their loved ones.

It will become clearer as the investigation reveals more. Irrespective some statements that the feds investigation dubiously leads to their initial “no-basis” pronouncements, truth will come out – which is just what the victims, their families and the commuting public needs during these times.