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 http://lgbtmap.org/lgbt-workers.
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.