Somehow, many have accepted the idea that it’s a rite of passage for someone who wants a good job to first prove their worth by working for free for a while. A look at Craigslist shows dozens of employers advertising that they want to break the law. But unpaid internships not only hurt the intern, who doesn’t get the wages they’re entitled to, but also hurt those who would like to get on the corporate ladder but can’t afford to work for free.

It also hurts the person who would have been paid for that work, if the employer didn’t think it could get away with getting someone to do the same work for free. Letting employers get away with intern abuse means fewer jobs for everyone, and it keeps those at the bottom from working their way up. It’s un-American, and wrong.

Late last year the Department of Labor proposed a change in the law, which would be a step towards closing this loophole. If the proposal passes, it would only exempt those people being paid directly by the family or household where they work. That means staffing agencies, through whom most people employ home health aides, would be required to pay the minimum wage and overtime.

The public response so far has been overwhelming, with 9,800 public comments submitted on the proposal, many by professionals in the health or legal fields, most in favor of the change. We would like to add our voice to that – this change is long overdue. The roughly two million home health workers in the United States – who take care of our nation’s most vulnerable population – deserve to be protected and deserve to be paid.

However, the only other anti-retaliation provision of Title VII, the “opposition clause,” also likely isn’t available to HR personnel conducting investigations. In order to be protected under that provision, someone must complain about something they have a “good faith basis” to believe is illegal. But if someone has just begun conducting an investigation, how could they possibly have a “good faith basis” to believe one way or another?

This puts HR personnel in a tough bind — they can be fired for not investigating, and thus not doing their jobs, but they can also be fired if they do investigate. Judge Lohier, in a concurring opinion, essentially asks Congress to step in and tie up this loophole. We couldn’t agree with him more.

]]> http://blog.bmbblaw.com/2012/05/10/hr-directors-can-be-fired-for-doing-their-jobs/feed/ http://blog.bmbblaw.com/2012/04/30/survey-of-workers-reveals-rampant-wage-theft/ http://blog.bmbblaw.com/2012/04/30/survey-of-workers-reveals-rampant-wage-theft/#comments Mon, 30 Apr 2012 14:00:16 +0000 BMBB Law http://blog.bmbblaw.com/?p=179 A recent report, Broken Laws, Unprotected Workers, confirms what many of us in the workers’ rights field already knew: wage theft and labor law violations are extremely commonplace in the United States.

The report surveyed 4, 387 workers in Chicago, Los Angeles and New York City. It found, for example, that one in five people surveyed were paid less than the minimum wage for the previous week — most by over $1 per hour. Of the people who worked overtime hours the previous week, only 24% were paid overtime premiums, despite the fact that most were working 10 or more hours of overtime. A worker in New York working 50 hours a week, and who is being denied overtime and being underpaid by $1 an hour would therefore be owed a shocking $90 each week.

In fact, the report found that, of all the workers surveyed, over two thirds had experienced at least one pay-related violation just that previous week, losing an average of $51 — even though the average weekly pay for the survey sample was only $399.

That means employers are stealing, on average about 13% of their workers’ wages. That’s a travesty.

Using criminal background checks does not violate federal law, per se. However, an employer’s use of them can be racially discriminatory. The EEOC gives an example of how an employer may perceive a Black applicant with a drug possession record differently from a similar White applicant.

Similarly, using criminal background checks and arrest records may violate a federal prohibition on policies which disproportionately affect a certain categories of people.

The EEOC also clarifies that the mere fact that someone was arrested doesn’t necessarily mean they’ve done anything wrong, and cautions employers against blindly relying on arrest records when making employment decisions.

The EEOC initially broke up her claim into two separate complaints: (a) discrimination because of sex (female) and (b) discrimination based on gender identity. Her lawyer appealed, claiming that discrimination based on her gender identity should be considered “discrimination because of sex.” The EEOC, on appeal, agreed.

While gender identity and sexual orientation discrimination have long suffered in the gray areas of Title VII, this is a huge victory for transgender rights advocates.