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The Genetic Information Nondiscrimination Act of 2008 Has Taken Effect

March 25th, 2011

Did you know that there is a now a federal law which protects you against discrimination based on genetic information?

While the Genetic Information Nondiscrimination Act of 2008 (GINA), was enacted almost three years ago, the regulations actually just went into effect in January 2011.

GINA prohibits most employers from acquiring genetic information about you, and if for some reason an employer has that information, it requires the employer to keep it confidential.

How might this affect you? Here’s an example:

If you are out of work due to an on-the-job injury — let’s say your back was injured — many employers require you to submit to a “fitness for duty” medical examination in order to return to work. Often times, the doctors conducting those examinations explore your medical history as part of that examination. However, your medical history likely has nothing to do with whether you have recovered from an on-the-job injury. GINA means that in order for you to get back to work after a back injury, you will not have to reveal a family history of cancer or that you are receiving treatment for hereditary diseases, since those issues have nothing to do with your recovery from a back injury.

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Posted in Discrimination, Employment Law

Retaliation in the Workplace: Supreme Court Affirms Employee Protection against Workplace Retaliation

March 25th, 2011

On Tuesday, March 22, 2011, the United States Supreme Court stated  that employers cannot retaliate against employees who make verbal complaints that they have not been paid minimum wages or overtime wages. In 2006, Kevin Kasten complained to his foreman that he and his co-workers should have been paid for the time it took to change clothes and put on protective clothing at his plastics factory. In response to his complaints, the company fired him. When Kasten filed a retaliation lawsuit and stated his firing was illegal workplace retaliation under the Fair Labor Standards Act for having sought wages owed to him, the lower courts said the provisions of the FLSA that protect a worker against retaliation only apply if the worker’s “complaint” is in writing.

The Supreme Court said “not so,” that an employer cannot retaliate against an employee who complains – either verbally or in writing –  about not receiving pay. Of course, we know in the real world of the workplace most employees who have complaints bring them first to immediate supervisors, and that this is almost always in conversation, not in writing. The decision by the Supreme Court means that you have more protection when you verbally complain about wages that you are owed.

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Posted in Employment Law, Retaliation

Maryland State Legislature Considering a Bill to Fight Retaliation in the Workplace

February 28th, 2011

The Maryland State Legislature is now considering a bill that would strengthen the anti-retaliation provisions in state wage and hour law.  As a Maryland Employment Law Attorney, I view this as a very important piece of legislation.  As the law now stands, if you complain to your boss that you have not been paid correctly, the boss can cut your hours, change your shift, require you to work a split shift, and take other actions which are clearly “retaliatory.”  The only thing the boss cannot do is outright fire you.  Here’s how bad it can get – I represented an individual who was owed overtime wages from an employer he had recently left.  The ex-employer refused to resolve the case out of court, so we filed a lawsuit in federal court seeking those overtime wages.  In response, the ex-employer created and distributed a flyer with my client’s picture, social security number, and an accusation that my client had stolen the company’s property.  Then, the employer filed criminal charges against my client.  Of course, the company knew that the charges were false.  The company was clearly attempting to intimidate my client from pursuing his claim, and perhaps more importantly, sending a message to other employees not to stand up for their rights.  If the proposed bill is passed, it will provide employees, like my client, with added protection against retaliation.  Read more about Maryland Senate Bill 551.

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Posted in Employment Law, Retaliation, Wage & Hour

Overdue for Overtime – Non Exempt Overtime Pay for Legal Assistants

November 22nd, 2010

Lawyers – are you paying your legal assistants overtime?
Legal assistants – are you getting time and one-half when you work over forty hours?

Individuals who are paralegals, legal assistants, legal secretaries, and other non-lawyer positions that are often paid on a “salary” basis should get paid overtime when they work over 40 hours in one week. Under the federal Fair Labor Standards Act as well as the Maryland wage and hour laws and the DC wage and hour laws, these positions are not “exempt,” meaning, if an individual works more than 40 hours in a week, they must be paid one and one-half times their regular rate.

The United States Department of Labor’s Wage and Hour Division is often called on to issue opinion letters addressing whether a certain job is “exempt” from the overtime protections of the FLSA. In response to numerous inquiries over the years, the Department has consistently stated that paralegals/legal assistants are not exempt under either the “professional” or “administrative” exemptions to the FLSA.

The position descriptions that the DOL held were not exempt from receiving overtime include legal assistants whose job requires some advanced education, including a two year’s paralegal certificate; legal assistants who have a four-year college degree and work under an attorney’s supervision drafting documents; and, a highly experienced paralegal who often meets with clients, analyzes facts and identifies relevant legal issues in a case.

What does this mean to you? If you are a legal assistant and work 40 hours, you may be being eligible for non-exempt overtime pay and need to consult with an attorney to ensure you are paid correct and recover wages owed to you. If you are an attorney, you may need to consult with an experienced employment law attorney and correct procedures which run afoul of the FLSA.

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Posted in Employment Law, Overtime, Wage & Hour