Monday, September 30, 2013

You Say Let's Talk Severance/Your Employer Hears I Quit

Source: Workplace Fairness
September 9th, 2013 | Donna Ballman
As sometimes happens when you’ve been practicing as long as I have (hint – I may have had a pet with a name ending in -saurus), you find yourself chatting with an opposing counsel with whom you’ve had many encounters over the years. These conversations can sometimes lead to some frank exchanges. I had one of these conversations a few days ago.
The topic was what it means when an employee says they want to talk about a severance package. He insisted it meant the employee had resigned. I hear this all the time from management-side lawyers, and I understand where they’re coming from.
However, my clients never see it that way. I told this fellow attorney-saurus that I’ve never had a single client who meant they were quitting when they said to their boss or HR that they wanted to discuss severance. My colleague seemed shocked by this. “Then what did they mean?” he asked.
I had to explain that employees who say they want to discuss severance are usually making a cry for help. They’ve gone to the boss or HR with some dire problem. Maybe they’ve been sexually harassed or discriminated against. Maybe it’s a bullying situation. Sometimes they’ve blown the whistle and are suffering retaliation. They’ve reported it and gotten no relief. So they say, “Fine. Let’s talk severance.”
What they probably mean is, “If you won’t help me, you risk losing me as an employee.” They’re usually hoping that this final cry for help will result in some action being taken. They sometimes mean, “Rather than torture me into making me quit, let’s just part ways amicably now.” They’re still hoping the employer will come to their senses.
I’m not sure why there’s such a large communication disconnect between employer and employee on this, but my management-side colleague seemed genuinely surprised by my analysis. So I thought I’d share it.
Employers use any mention of a severance package to get rid of a complaining employee. They’ll claim you quit before you can finish your sentence. And guess what? If you quit, you usually don’t get severance. To an employer, severance goes to employees who have been laid off or fired with little or no cause. Quitters get squat.
So I’ll say this to employers: Listen more carefully. If you like this employee, you may be able to salvage things if you act quickly. Plus, if they’ve just reported sexual harassment, discrimination or blown the whistle on something illegal, you might have handed them a lawsuit by escorting them quickly to the door.
To employees everywhere, be warned: If you even mention a severance package, your employer will claim you quit. Wait for them to bring it up. Then you might actually get some money to tide you over while you’re looking for something else. If you were the victim of discrimination, illegal retaliation or sexual harassment, you might also have leverage to negotiate a better package if the employer fires you for reporting it.
I’m sure there are other things that employees and employers hear differently.

Monday, August 12, 2013

How Do I Know If My Severance Package Is Good Enough?

Source: Heydary Hamilton PC
You’ve been working for the same company for more than 10 years.  Although management is always saying “We’re a family”, you never bought into that.  Still, you get along with everyone, you’ve worked hard, and your manager has let you know that they appreciate your efforts.  The pay’s not that great.  Working conditions could be better.  Anyway, it’s only a job, but you’ve spent most of your waking hours there, five days a week, for a long time, and it’s an important part of your life.
For the last year or so, however, it’s been obvious to everyone that there are problems.  It’s not as busy as it used to be.  There are rumours of layoffs.  It’s a stressful time for everybody.  Then the boss calls you into his office.  Times are tough, he says.  You’ve always done a great job, but business is slow, and we’re going to have to let you go.  Here’s a letter outlining your terms of severance.  I’m really sorry.
Okay, it’s not really a family, but you did feel a part of the organization, and even if you’re not the only one who’s being let go that day, it’s really tough to be shown the door.  What will you do without that paycheck? How will you spend your day, now that you no longer have a 9 to 5? You know you’re going to miss seeing the same people every day.  How long will it take to get a new job? And will you really be able to get a job in your field at the same level, after you’ve been so long with the same company?
You’re a bit surprised at how emotional you feel.  In the middle of all this, you have to decide whether or not the severance package that your employer is offering is reasonable and fair.
First of all, there’s no rush. Your employer wants you to accept the terms you’ve been offered.  Otherwise, why would they offer you a severance package at all?
Employers often set a deadline for acceptance of the proposed severance package. That’s usually just a tactic to put pressure on you to accept their terms.   Remember, these are the terms they want you to accept.  Chances are they will be willing to settle on the same terms or better even after their artificial deadline expires.
If you are a member of a union, the employer’s right to let you go or to eliminate your position depends on the terms of the collective agreement between the union and your employer.  You may have the right to grieve or arbitrate your dismissal, and you should speak to your union representative about this.
If you are not a union member, you really should consult a lawyer who specializes in employment cases before you accept your employer’s severance terms and sign a release.  Once that release is signed it will be difficult, if not impossible, to claim a better severance.
Often, the employer will base its severance proposal on the “Termination and Severance of Employment” provisions in Part XV of the Employment Standards Act, S.O. 2000, c. 41 (the “ESA”).  Under the ESA, the employer has to provide the employee with written notice in advance of termination.  The length of the notice period depends on the length of service of the employee.
In most cases, the employer will want to terminate the employee right away.  The ESA allows employers to do that, but the employer has to provide severance pay that is equivalent to the pay that the employee would have received during the statutory notice period.
Notice periods under the ESA are pretty short.  If you have worked for the company for a full year, but less than three years, you are only entitled to two weeks’ notice under the ESA.  If you’ve been with the same firm for eight years or more, all you get is eight weeks notice of severance; in other words, one week for every year of service.  And there is a cap of 8 weeks’ severance which applies even if you’ve been with your company for 20 years or more.
The good news is that the courts have made it very clear that the severance requirements of the ESA are the minimum.  If you choose to challenge a severance package that is based on the ESA notice periods, you can potentially negotiate a much better severance.
At law, you are entitled to “reasonable notice” of termination, and if your employer fails to provide reasonable notice, you get money damages equal to the salary you would have received during the period of reasonable notice.  Although the minimum notice periods under the ESA are the equivalent of about one week of notice per year of service, court cases have established that reasonable notice amounts to between one and two months’ severance per year of service, depending on the circumstances.
The overriding principle that courts take into consideration in determining whether or not the employer’s severance package is reasonable is the length of time that it would take an employee with the same qualifications and experience, and looking for work in the same job market, to find a new job that was comparable to his former position in terms of the nature of the work, the status of the work, and the compensation earned.  The courts have determined that the assessment of reasonable notice depends on a number of factors:
(1)          The age of the employee. Generally speaking, it takes older individuals longer to find a new position that is equivalent or comparable to their earlier employment.
(2)          The level of your position in the employer’s job hierarchy.  There are a lot of entry-level jobs, but there are very few presidential or vice-presidential level positions.  Courts therefore tend to conclude that the higher your job level, the longer it will take for you to find an equivalent position with another company.
(3)          The salary of your former position.  The more your old job paid, the harder it’s going to be to find another job that pays a comparable salary or wage.
(4)          The nature of the work.  If your job is specialized, and requires a high level of education or a great deal of on-the-job experience, it is unlikely that there will be a lot of other jobs available for someone with your background and education.  On the other hand, if you are highly qualified and there is a shortage of people with your skills, training, and experience, it may be that you can find equivalent work quite quickly.
(5)          Conditions in the job market.  If the overall economy is bad, and employment is low, courts will tend to award longer severance.  If, however, the economy is good, or if demand is high in your particular industry, the court might conclude that it won’t take you that long to find new employment that is comparable to your former position in terms of earnings, responsibilities, and status.
If you have been laid off, you are faced with some tough decisions.  Should you accept the severance your employer has offered, put the whole thing behind you, and hope for the best in terms of whether or not you can get a new job that pays as well and gives you the same satisfaction? Or should you go back to the employer and try to negotiate a more favorable severance? And if you can’t get a better severance, does it make sense to take your case to court?
There aren’t any easy or obvious answers, but an experienced employment lawyer can help you evaluate your options.

New sick leave law may have limited effect

by Annie Baxter, Minnesota Public Radio

ST. PAUL, Minn. — Tim Sorenson can't forget what happened a couple of years ago, when a few hours before his shift, his sister called to tell him their father had suffered a stroke and was on his way to the hospital.
"So I called work and said, 'Something's wrong with my dad," recalled Sorenson, a nursing assistant in the Twin Cities. "'He's in an ambulance. We think it's a stroke or something. I'm going to the hospital so I'm calling in sick. I can't make it.' "
But when Sorenson tried to use a sick day for the episode, his supervisors would not allow it. They told him sick days only covered his own illness or a dependent child's.
A new state law that takes effect Thursday will change that for workers at companies that have at least 21 employees. It adds adult children, spouses, parents, grandparents and step-parents to the family members an employee can take paid sick days to care for.
The law may not make a big difference for workers in Minnesota, as many employers already have dropped restrictive sick leave policies in favor of more flexible paid time off benefits.
But that hasn't stopped detractors from decrying the law -- or proponents from cheering it. "When I talk about the last legislative session with employee groups around the state and our union, this ranks at the top of the list as far as day to day impact on their lives," said Jamie Gulley, president of SEIU Healthcare Minnesota.
Sorenson, who was miffed by his employers' refusal to allow him to use sick time to care for his father, said it will allow many employees to be open about their reasons for needing time off. When his father was ill, Sorenson told his employer he could have lied to take the day off.
"... I just finally said, 'Well, I learned that next time I just tell you I have a cold because that's how simple it would've been for me to use a huge bank of time I've accumulated.'"
- Tim Sorenson
"At the very end I just finally said, 'Well, I learned that next time I just tell you I have a cold because that's how simple it would've been for me to use a huge bank of time I've accumulated,' " Sorenson recalled. "I've been there 22 years. I had to just take the day without pay."
The new law does not force firms to offer sick leave policies. Instead, it only requires that employers with existing sick leave policies extend them to allow workers to take care of more close relatives.
Some employers fear that the new law will make it harder to police employees' use of sick time, said Joe Schmitt, a Minneapolis attorney who specializes in employment law.
"There's the administrative burden of trying to figure out whether any one of these relatives was in fact sick, and whether the employee was taking care of this relative," Schmitt said.
If more workers take time off to care for sick loved ones, he said, that also could mean lost productivity.
Both the labor groups and nervous employers could be overstating the law's potential effects.
The state's powerful business lobbying group, the Minnesota Chamber of Commerce, did not take a position against the new sick leave law.
That may be because many companies already let employees use paid leave to care for relatives or for other purposes.
Many offer paid time off, or PTO, which combine sick, vacation and personal days. That bank of time can typically be used as the employee sees fit.
A survey this year of 518 companies by the Society for Human Resource Management shows that a growing share of employers -- 52 percent of those polled -- offer paid time off. A shrinking share -- 34 percent -- offer paid sick days, which allow employees to take care of themselves and their children.
"The concept of sick leave is almost gone," said Jason Averbook, an HR consultant for Appirio, company that aims clients develop better relationships with customers and employees. "The majority of organizations are using PTO, which is used for whatever."
It's not just sick leave policies that are going the way of the dodo bird. So are limits on how much time employees can be off.
Averbook said many white collar firms are granting employees unlimited sick and vacation days. It may sound odd, but it helps the bottom line.
"Most of our customers that've done it find that employees use less when it's unlimited than when they actually have a number that they have to use," he said. "They actually take more to get to that number."
Minnesota's new sick leave law won't apply to people who work as contractors and lack any sick or vacation benefits.
If they catch the flu or have a sick spouse who needs tending to, they likely will have to take a day off without pay.

Tuesday, July 30, 2013

Six Key Points to Consider when Reviewing a Severance Agreement

Source: This entry was posted in Severance Pay on  by .
1. What is the payout schedule? Many companies will propose a payout in 30 or 45 days after execution of the agreement. There is no reason to wait that long and companies will often shorten the payout date to 10 or 15 days upon request. Also, companies often propose a payout over time that basically keeps you on the payroll for a period of time. A Lump sum payment is preferable because you get all of the money immediately. Payouts over time can be disrupted if something comes up – avoid these potential issues by getting a fast upfront payout.
2. Are outplacement services offerred? If so, determine if you need those services. Most people do not want them anymore. If you don’t need those services, ask to have the cash equivalent.
3. Are the payments subject to a mitigation offset? For example, if you get a new job within a certain time frame, are you required to pay back an amount or have the payments reduced? Obviously you want to avoid any offsets if you find a new job. If an offset clause is included in your agreement, ask to have it removed. Companies usually agree to do this. The point of a severance package is to end the relationship so why create new ties.
Here is a clause that covers mitigation and offsets:
“The Executive is under no obligation to seek other employment and there shall be no offset against any amounts due to her on account of any remuneration or benefits provided by any subsequent employment she may obtain.”
4. Is there any money owed to you that is independent of the severance package? For example, are expense reimbursements owed or a pending bonus? These payments should be recognized in the agreement. If you know that certain expenses are due, run a report and show it to your employer so the amount owing is known and if any questions arise, try to solve them immediately. Also, if an accrued bonus is due, make sure you put up a good fight to get the bonus paid. The bonus is not part of the severance if it has already been earned. Companies often try to exclude bonuses.
Here is a clause that covers any unreimbursed business expenses:
“Within 15 days of the Separation Date, the Company shall pay to the Executive any expense reimbursements due to the Executive as of the Separation Date pursuant to the applicable plan, program or practice of the Company.”
5. Benefit Continuation. If the company has offerred to continue your health insurance, will this be accomplished by continuing the existing insurance plan or by COBRA reimbursement? This should be set forth clearly in the agreement. If the company has not offerred to extend benefits, you should ask them to do so. Ask to have the benefit continuation mirror the severance period (if the severance offer is 4 months ask for 4 months of continuing health insurance).
6. Job Reference. What type of reference will the company provide to you? If they will agree to a letter of reference, have the letter prepared and attach it to the agreement. Or if a letter cannot or will not be prepared, set out the terms of the reference in the agrement as in this sample.
“The Company agrees to supply a neutral reference letter that includes the Executives title, dates of employment, salary and the reason for separation as resignation.”

Wednesday, July 10, 2013

Business forum: HR and the same-sex marriage act

    Source: Star Tribune 
    Author: Sara McGrane, employment law attorney with MInneapolis law firm Felhaber, Larson, Fenlon & Vogt. 

    The impact of same-sex marriage goes beyond the ceremony to employee benefits. Minnesota companies are advised to take note.
    While the passage of legislation to legalize same-sex marriage in Minnesota has advocates celebrating, the future walk down the aisle won’t be completely covered in rose petals when it comes to equality in company-sponsored benefits.
    In fact, differences in the way the federal government and the state define marriage has several implications for businesses as they determine how the Minnesota statute will affect their benefit programs.
    With the new law taking effect Aug. 1, and a ruling expected this summer by the U.S. Supreme Court on the Defense of Marriage Act (DOMA), a lot is still undecided. In the meantime, here are a few guidelines that can help employers as they evaluate the change to Minnesota law.
Consider state and federal laws when determining benefit policies. Minnesota is the 12th state to legalize same-sex marriage. While some states are making it easier for couples to recognize the unions, there are still hurdles at the federal level when it comes to employee benefits because the U.S. government defines marriage as a union between two individuals of the opposite gender.
The U.S. Supreme Court is currently debating a case relating to DOMA, which denies married same-sex couples a range of benefits that are available to heterosexual couples.
When determining benefits policies in Minnesota, companies first and foremost need to follow all federal laws that have no state equivalent. For example, employee benefit plans covered by ERISA (Employment Retirement Income Security Act) do not change. Benefits that remain federally mandated include Social Security benefits, pension plan benefits, spousal immigration rights and income tax benefits.
In the case where a law has both a state and federal statute on the same topic, or only a state law, protections will now extend to the same-sex spouse. For instance, employers required to provide 12 weeks of unpaid leave for an employee with a serious medical condition, or to care for a spouse or close family member under FMLA (Family Medical Leave Act), need to extend those protections. Minnesota has state FMLA provisions and employers are required to provide those benefits to the same-sex spouse.
When evaluating any benefit policy, employers should consider whether they operate in a state that recognizes same-sex marriage. Employees living in states recognizing same-sex unions should have those state law benefits extended to them.
Review human resource policies. The upcoming change to Minnesota law makes this a good time to audit human resource documents to update policies and practices that previously applied to married employees so they can be worded to apply equally to same-sex married couples. Employers should review new employee forms, benefit forms and other documents to make sure they are gender-neutral in relation to identification of marital status and spouse.
Businesses should also update personnel policies that relate to state protections, such as FMLA, to include options for same-sex couples. This includes reviewing policies and procedures to ensure that the same requirements are being applied to both same-sex and opposite-sex couples for the purposes of establishing benefit eligibility.
In addition to recognizing same-sex unions, Minnesota has a Human Rights Act that protects individuals on the basis of their sexual orientation. If they haven’t already, businesses should review employee manuals and policies to ensure they are not discriminatory on the basis of sexual orientation.
Provide leadership training. With any statutory change, it is a good idea for employers to provide training for supervisors and managers to ensure fairness and equity in their treatment of employees. Issues to be discussed include providing insight into the rights and obligations of same-sex couples. All managers should be educated about employee benefits, such as medical leave laws, that apply to same-sex couples.
While the Minnesota law to legalize same-sex marriage will bring changes to company policies, we should also receive additional clarity at the federal level once the U.S. Supreme Court announces its decision on the case involving DOMA.
Once that is established, the walk down the aisle may offer more rose petals for couples as well as a clearer solution for businesses.

Tuesday, July 2, 2013

Happy Independence Day

Happy Independence Day weekend everyone! Bertelson Law Office wishes you relaxing long weekend! 

On a day when we give thanks for the liberties fought by the first generation of Americans, we think about the freedom they were seeking. In addition to the pursuit of a better life in the New World, we think of those similarly pursuing better conditions in their workplace and reaffirm our mission to serve employees with strong advocacy, extensive knowledge, and a commitment to personal service.

Contact Bertelson Law Office if you are looking for legal advice about your workplace situation.

Tuesday, June 25, 2013

Unemployment Compensation

By Andrea R. Ostapowich 
Bertelson Law Offices, P.A.

Following are the published opinions involving unemployment compensation from August 1, 2012, through November 13, 2012. All three opinions involve employees who quit their employment.

Timing of Quitting

Wiley v. Dolphin Staffing Dolphin Clerical Group, 2012 WL 5476134, A12-0383 (Minn. Ct. App. Nov. 13, 2012): Under Minnesota Statutes, section 268.095, subdivision 1(3) (2010), an employee who gives notice of quitting to an employer in advance of separating from employment is deemed to have quit at the time she provides notice of quitting.

Relator began working for the employer on August 11, 2011. On September 8, 2011, her thirtieth day with the employer, Relator gave two weeks notice of quitting. Her last scheduled day of employment was September 23. Relator later requested that she be allowed to withdraw her notice of quitting. The employer confirmed that her notice to quit had been accepted and that her last day of work would be September 23.

Relator applied for unemployment benefits. DEED determined that she was ineligible for benefits. Relator appealed. After the hearing, the ULJ determined that Relator did not qualify for benefits under any exception, including the “30-day unsuitability exception.” DEED determined that Relator had “quit” as of the date of her last scheduled work day, September 23, which was beyond the 30 days.

Section 268.095, subdivision 2(c) provides that an employee who seeks to withdraw a previously submitted notice of quitting is considered to have quit if the employer refuses to allow withdrawal of that notice. The court noted that the statute does not define when a quit occurs—whether it is upon notice, when withdrawal of notice is refused, or on the last day of employment. The court found that the statute was ambiguous because the language was subject to more than one interpretation. The court looked at legislative intent and section 268.031, subdivision 2, which requires the court to construe and apply the unemployment benefit statutes “in favor of awarding unemployment benefits.”

The court construed the thirty-day unsuitability exception as allowing an employee thirty days to decide if the employment was unsuitable. Therefore, for the purposes of the thirty-day exception, an employee who gives notice in advance of separating from employment is deemed to have quit at the time of notice.

No Duty to Complain Before Quitting Employment

Thao v. Command Center, Inc., 2012 WL 5188032, A12-0068 (Minn. Ct. App. Oct. 22, 2012): When the employer unilaterally and substantially decreases the employee’s hours of work, an employee has no duty to first complain to the employer about a reduction in hours and allow the employer an opportunity to correct the problem before the reduction in hours will be deemed to be a good reason to quit caused by the employer.

Relator was hired as an employee of a temporary agency that provided temporary labor staffing for businesses. She was employed for a total of five weeks. Relator was assigned to primarily work with one client, which had a contract with temporary workers. Relator’s job included recruiting temporary employees to fulfill the client’s employment needs.

When Relator was hired, she testified that she was told she would work at least thirty-two hours per week and that her hours may possibly increase to forty hours per week. During her first few weeks of work, which included training, she worked nearly forty hours each week. However, in her last week of employment, the client cancelled its orders, and Relator’s hours were reduced to sixteen to twenty hours per week. The schedule for the following week had Relator working only eight to ten hours. Upon seeing this schedule, Relator quit without complaining to anyone at the employer about these reduced hours.

The court focused on the language of section 268.095, subdivision 1(1), which defines a good reason for quitting caused by the employer, and subsection 3(c), which states, “If an applicant was subjected to adverse working conditions by the employer, the applicant must complain to the employer and give the employer a reasonable opportunity to correct the adverse working conditions before that may be considered a good reason caused by the employer.”

The court did a lengthy analysis of what the word “conditions” means versus the word “terms,” which is not in the statute. Relator argued that a reduction in hours was a “term” of employment, rather than a “condition,” and therefore, subdivision 3(c) did not apply. DEED argued that “conditions” is a broad terms that includes a reduction in hours.

Looking at both the common law and legislative history, the court concluded that “terms” and “conditions” are not synonymous. Working “conditions” are circumstances under which employees work, such as the social and physical environment, relationships with coworkers, and safety measures. “Terms” of employment includes compensation, and benefits, and hours. Because a reduction in hours is not a “condition” of employment, subdivision 3(c) does not apply. Relator was not required to first complain to the employer and allow it an opportunity to correct the adverse conditions before quitting.

Good Reason to Quit Where Employer Reduced Work Hours
Haugen v. Superior Development, Inc., 819 N.W.2d 715 (Minn. Ct. App. 2012): Relator had good reason to quit caused by the employer’s decision to reduce his work hours.

Relator worked for the employer for nearly three years, managing rental houses. Almost immediately after starting employment, his hours increased from twenty-eight hours per week to forty hours per week. In late 2010, his hours were reduced to thirty-two hours per week because the employer believed Relator could complete his duties in less time. However, Relator’s hours soon increased to forty per week. In late April 2011, the employer reduced Relator’s hours to twenty-four hours per week. Relator told the vice president of the company that he “didn’t think he could make it on twenty-four hours” per week. Two months later, Relator quit.

Section 268.095, subdivision 3 provides that a good reason to quit caused by the employer is one that is directly related to the employment, that is adverse to the employee, and that “would compel an average, reasonable worker to quit and become unemployed rather than remaining in employment.”

The court found that “[relator’s] drop from 40 hours to 24 hours is substantial enough to constitute a good reason to quit employment. It represents a 40-percent drop in weekly pay from $600 to $360. Even if [Relator] was working only 32 hours before the drop, the reduction in wages is still 25%, and it similarly constitutes a good reason to quit under the caselaw that binds our decision.”

Wednesday, June 19, 2013

LGBT Workers Face Rampant Discrimination, Higher Taxes and Receive Fewer Workplace Benefits

June 7th, 2013 | Kate Thomas | Source: Workplace Fairness

87% of polled Americans believe it’s illegal under federal law to fire an employee just because that employee is gay or lesbian.
They’re wrong.
A new report demonstrates how 40 years of advocacy have yet to yield federal non-discrimination protections for LGBT workers. Instead of having a fair chance to get ahead, our existing federal laws result in LGBT workers and their families being held back by bias, fewer workplace benefits and higher taxes.
There are many ways America’s basic bargain – i.e. the widely-held belief that those who work hard can get ahead – is broken for LGBT workers. Here are just a few:
  • Lack of nondiscrimination protections.

    There’s no federal law – and only a minority of states – that provide explicit protections for LGBT workers. In 29 states, state law allows private employers to fire someone based on their sexual orientation — and based on their gender identity in 34 states. Progress has perhaps also been impeded by the fact that 87% of Americans think that it is already illegal under federal law to fire someone simply for being LGBT.
  • Higher levels of education lower unemployment rates.

    The National Transgender Discrimination Survey found that although transgender workers are more highly educated than the general population, their unemployment rates were twice the rate of the population as a whole–with rates for transgender people of color reaching as high as 4x the national unemployment rate
  • Family and medical leave.

    LGBT workers are denied equal access to unpaid leave to provide care for a same-sex spouse or partner. Transgender workers are often denied medical leave for transition-related medical care.
  • Family health benefits.

    An employer that extends family health benefits to married opposite-sex couples can legally deny that same coverage to married and unmarried same-sex couples. When LGBT workers do receive these benefits, middle-income families pay an estimated $3,200 in extra taxes for the same benefits that heterosexual workers get tax-free.
  • Spousal retirement benefits.

    LGBT workers are systematically denied Social Security spousal benefits designed to protect workers’ families during their retirement years. This costs retired same-sex couples up to $14,484 per year and a surviving same-sex widow or widower up to $28,968 per year.
  • Death and disability benefits.

    If an LGBT worker dies or becomes disabled, the worker’s same-sex spouse–and in some cases, his or her children–will be denied Social Security disability and survivor benefits, costing a surviving spouse with two children as much as $29,520 in annual benefits.

Even if same-sex couples were granted the right to marry in all 50 states tomorrow, it would still be perfectly legal to fire someone for being gay under federal law and in a majority of states.
“The public increasingly gets that discrimination based on sexual orientation or gender identity is flat wrong, and it’s past time for our work place and public policies to catch up with public sentiment,” Mary Kay Henry, President of SEIU, said in a statement. “LGBTQ workers and their families deserve the same workplace protections and benefits as other workers and their families.”
This comprehensive report shows why it’s long past time for Congress and President Obama to take action to give LGBT workers the freedom to build a successful career without fear of harassment or discrimination based on who they are or who they love.

 This report was created in coordination with a coalition of leading LGBT organizations, policy experts and business advocates that include the Movement Advancement Project (MAP), the Center for American Progress (CAP) and the Human Rights Campaign (HRC), in partnership with Freedom to Work, National Center for Transgender Equality, National Partnership for Women and Families, Out and Equal Workplace Advocates and SEIU.
A Broken Bargain: Discrimination, Fewer Benefits, and More Taxes for LGBT Workers - Read and/or download the full report and the executive summary at
This article was originally printed on SEIU on June 4, 2013.  Reprinted with permission.

Monday, June 10, 2013

In marking anniversary of Equal Pay Act, Obama extols gay rights

By Juliet EilperinPublished: June 10, 2013 at 2:01 pm Source:Washington Post
President Obama made a point Monday of commemorating the 50th anniversary of the Equal Pay Act, calling for more action to close the wage gap between men and women.
Making a reference to his own daughters, the president noted that women now earn 77 cents for every dollar a man does, on average.”Over the course of her career, a working woman with a college degree will earn on average hundreds of thousands of dollars less than a man who does the same work,” Obama said. “Now, that’s wrong. I don’t want that for Malia and Sasha.  I don’t want that for your daughters.”
But Obama also used the occasion to speak up for gay rights in the workforce–albeit, in a subtle way. Later in the speech, Obama suggested that Americans should be able to succeed in the workplace regardless of their sexual orientation.
“If we do all this — and this will be part of our broader agenda to create good jobs and to strengthen middle-class security, to keep rebuilding an economy that works for everybody, that gives every American the chance to get ahead, no matter who you are or what you look like, or what your last name is and who you love,” he said.
It is still legal to discriminate in the workplace based on a person’s sexual orientation: legislation to change that, the Employment Non-Discrimination Act, has been stuck in Congress for several years.
Thirty-seven senators sent Obama a letter in February asking him to issue an executive order prohibiting federal contractors from discriminating against employees based on sexual orientation or gender identity. Current policy already bars federal contractors from discriminating on the basis of race, color, religion, sex, or national origin.
That order has not been issued, and a gay rights activist recently heckled Michelle Obama on the issue during a private fundraiser.
In order to drive home his point on women’s rights, the president used humor during Monday’s events, noting that women are now the primary breadwinners in 40 percent of U.S. households.
“But what it does mean is that when more women are bringing home the bacon, they shouldn’t just be getting a little bit of bacon,” he said, prompting laughter from the audience.

The Female Labor Market Is Actually Stagnating

The announcement last week that women are now the primary breadwinners in 40% of American households unleashed the usual reflexive responses. Attempting what looked like self-parody, Fox News featured an all-male quartet of pundits sputtering about the decline of women’s “natural” role. Some saw welcome progress for women, while others viewed the 40% figure as more evidence that the “End of Men” is nigh. Either way, it’s hardly cause for celebration that two-thirds of the female (mainly poor) primary earners are really the family’s only earner because they lack a partner or spouse to share the burden.

But amid all the tumult, few paused to consider why the 40% figure isn’t even higher. Yes, women have made major gains in the workforce compared with their participation in the labor market in the late 1960s, but much of that growth took place in the 1970s and ’80s and has stalled in more recent decades. In 1990, 74% of American women were in the workforce. Twenty years later, that number has increased by only a percentage point, to 75%. Other countries, meanwhile, have surged ahead of us.

According to a paper published by the National Bureau of Economic Research, in rankings of the percentage of women in the workforce, the U.S. actually fell from sixth place to No. 17 out of 22 developed countries. The authors, Francine Blau and Lawrence Kahn, estimate that almost a third of the slowdown in women’s workforce participation can be explained by our comparatively inadequate infrastructure for working parents. Meanwhile, other developed countries, such as Portugal, Finland and Luxembourg, started out at a lower baseline (an average of 67%) and have seen their rates grow to 80% or higher. Something seems amiss when even Switzerland, a country that didn’t grant women the vote until 1971, leaves the U.S. in the gender dustbin.

And yet it’s not so simple. First, it’s not just women who have stalled in the American job market. Men’s workforce participation is also lagging, as a result of the economic downturn, an aging population and a decades-long decline in traditionally male manufacturing jobs.

Second, it turns out all those progressive countries with better profamily policies don’t necessarily help women’s professional advancement overall. As reported in an article in the Atlantic, American women are twice as likely to work full time as European women and also more likely to be senior managers or skilled professionals. It’s possible that employers hesitate to promote women who step on and off the career ladder. Or perhaps the family-friendly work options in European countries make the prospect of “leaning in” paradoxically unappealing.

Given a black-and-white choice between work and no work, the majority of women clearly choose the former. But given the option of a more viable work-life balance, with longer maternity leave, for example, or a job that’s been refitted to part-time hours, there’s no reason to believe some American women wouldn’t choose, like their European peers, to grab that brass ring pretty fast. It’s clear we urgently need to patch the holes in our frayed tapestry of family care. Yet even when we do, economic projections and the experience of other developed countries suggest that we’ll always have a percentage of women for whom the work-life balance is weighted more heavily toward family than the corner office.

It shouldn’t be such a surprise that women, like men, derive different degrees of satisfaction and financial security from their jobs. And yet we are all too quick to overinterpret every piece of news about working women, declaring it a sign of success or failure. There are more nuanced, real-life stories than the caricatures we hear, the Sheryl Sandbergs and the Ann Romneys, who occupy opposite ends of the work-home continuum. If we really want to understand the female labor market in all its complexity, we need to hear more of them.

Wednesday, May 8, 2013

What privacy rights to I have in the workplace?

From:  The Los Angeles Times, April 8, 2013

Employers are frequently using monitoring software to make their employees more productive at work, according to an article in the Los Angeles Times, part of a series about the "Tougher Workplace."

Although the Constitution speaks of a "reasonable" expectation of privacy, this is largely not applicable at private employers. Courts are still sifting through the changes that technology has caused in the workplace and figuring out what employers can and can’t do.
The exchange below aims to help clarify some issues.

Can my boss read my email?
Yes. Any email you send on a work-issued computer goes through the company's servers and can be read by your employer.

Can my boss listen to my phone calls at work?
If they are work-related, your employer can listen to your phone calls. Federal law requires that employers must stop monitoring the calls when they realize they are of a personal nature.
When all of the parties to a call are in California, state law requires that they be informed that the conversation is being monitored, according to the Privacy Rights Clearinghouse.

Can my boss read my text messages sent on my work phone?
Yes. If your company gives you a cellphone, the firm's officials can see what's on the cellphone. That's even if you're paying for the personal messages you send on your device.
In a landmark case that went all the way to the U.S. Supreme Court, Jeff Quon, a member of the police SWAT team of Ontario, Calif., sued when his employer obtained transcripts of his text messages without his permission.
They found that he’d gone over the number of approved text messages because he’d been sending sexually explicit personal messages on the phone.
The high court ruled in 2010 that Quon did not have a reasonable expectation of privacy because his employer was looking at his text messages for work-related reasons.
Also, an individual's 4th Amendment rights apply only to government employers, not private employers.
“You live in a constitutional democracy, but that’s not true when you’re at work,” said Frederick Lane, the author of “The Naked Employee: How Technology is Compromising Workplace Privacy.”  “You’re in a capitalistic work environment, and the Constitution, put simply, does not apply to private employers.”

Can my boss monitor me by video in the workplace?
In most cases, yes, though courts have prohibited employers from using video in places such as locker rooms and bathrooms.

Can I be fired for something I write on social media sites? The standards for this are changing. For example, a ticket taker for the Philadelphia Eagles was fired in 2009 for tweeting that the team was stupid (though he used a harsher word) for not signing a certain player.
But in the last year, the National Labor Relations Board has issued rulings finding that it is illegal for companies to fire people for things they say on social networking sites.
However, the legality of many recent NLRB decisions are in flux after the U.S. Court of Appeals for the District of Columbia Circuit called the recess appointment of three of its members unconstitutional.

What is the status of laws to give me more privacy in the workplace?
Since the 1980s, there have been three major attempts to push electronics privacy laws through Congress, said Lewis Maltby, president of the National Workrights Institute.
But “employers don’t want the law changed,” he said in an interview. There is currently nothing on the horizon to increase employees’ privacy rights at work.

What’s next in monitoring technology?
There are companies that offer to embed radio-frequency identification chips under the skin of employees, but three states have laws prohibiting employers from requiring workers to do so.
Some futurists talk about “wiggle monitors” that measure how much you move around at your desk, and thus how engaged you are in your job.
Employers are increasingly monitoring work computers, even when they’re being used at home, to see how much telecommuters are actually working.
They’re also asking employees to wear badges that monitor how often they get up from their desks, the tone of their conversations and how many people they socialize with during the day, according to the Wall Street Journal.

Is there any way to avoid being monitored at work?
Privacy-rights experts encourage employees to bring their personal devices to work and use them whenever possible for personal interactions, because employers cannot access those devices.
However, if you’re using your employer’s Wi-Fi network, your employer can access those messages. Better to use your cellphone provider’s network to send personal information.
Some privacy experts point out that there is one advantage to ever-increasing technology in the workplace -- it’s possible to monitor the people at the top as easy as it is the people at the bottom. After all, David Petraeus’ affair would not likely have been made public had the FBI not been able to access his emails.

Tuesday, March 26, 2013

Before You Sign A Severance Agreement

Bertelson Law Office has a successful history of reviewing, evaluating and strategically negotiating severance agreements, "buy-out packages", executive agreements and non-compete agreements.  We can help you assess whether the package you were offered makes sense considering the specifics of your employment.  

Feel free to contact us if you would like us to review your severance package.

The below is an article written by Donna Ballen taken from the website Aol Jobs:

Here are some important things to consider when you are presented with a severance agreement:

Take your time:Because this reader is clearly over 40, he should have been given at least 21 days to review the agreement and take it to a lawyer before he signed. If he wasn't given that time, then any release of age discrimination claims might not be valid. Of course, the agreement probably says he had that much time, and he's acknowledging it if he signed. If you're being pressured to sign before you have a chance to properly review it, I suggest putting your request for more time in writing, by email, fax or some way you have proof you sent it. Put in writing that they have given you a deadline of x-date, that you want to take the agreement to a lawyer, and that you need another week or a few weeks to review it. If they deny the extra time, you now have it in writing.

Limits on your ability to work:Even if you didn't sign a noncompete agreement while you were employed, some employers may try to sneak one into a severance agreement. If you're signing an agreement that you can't work for a competitor for a year or two after you leave, you'd better make sure you're getting enough money to tide you over. Some agreements ask you to affirm you will abide by an existing noncompete agreement. If you sign, you may be giving up some defenses you had to the enforceability of the prior agreement. Be careful, and make sure you can live with any noncompete restrictions before you sign.

Confidentiality:If you are agreeing to keep company information confidential, beware. Some management-side lawyers use provisions like this to say that, if you work for a competitor, you would inevitably have to disclose confidences. In effect, you've signed a noncompete and didn't even know it. I like to insert some language into these provisions saying they aren't intended to be a noncompete agreement.

Release:If you're giving up all the potential claims you have against your employer, you should make sure you understand what you're really giving up. The reader who asked this question mentioned some comments made that indicate he might have an age discrimination claim. If you take your agreement to an employment lawyer, you should discuss any potential claims you have to see if they might give you leverage to negotiate a better agreement. If you were treated differently than others of a different race, age, religion, etc., you might have a discrimination claim. If you were fired right after objecting to an illegal practice, taking Family and Medical Leave or making a worker's compensation claim, you might have a retaliation claim against your employer. These are just some examples of claims you'll be giving up if you sign without understanding your rights.

Mutuality:If you're releasing your employer from potential claims, can they turn around and sue you for something? If you're agreeing not to say negative things about them, are they still able to slam you in references? If the agreement itself is confidential for you, can the employer tell coworkers and potential employers about it? These are some of the provisions I like to insist the employer make mutual. After all, if you have obligations to them after you leave, shouldn't they have similar obligations to you?

My number one rule for signing any agreement is this: make sure you understand it before you sign. When in doubt, have an employment lawyer in your state review and explain it to you and discuss your options. Sure, it will cost some money, but isn't it worth paying to be sure you aren't making a huge mistake in signing?