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Stephanie Jane Hahn, Attorney At Law
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Indianapolis Employment Law Blog

Overview of workplace sexual harassment

Title VII of the Civil Rights Act of 1964 protects men and women from sexual harassment at work. The act enables Indiana workers to challenge unwelcome sexual advances, supervisors asking for sex, sexual touches, verbal harassment or sexually offensive remarks. Although the occasional lewd joke or teasing statement will not meet the definition of sexual harassment, a workplace where the behavior is pervasive or a specific employee endures continual mistreatment could be in violation of the law.

Illegality emerges when the targeted employee does not welcome the sexual comments or physical attention and feels abused by the behavior. Ongoing misconduct inspired by the person's sex could translate into labeling the entire workplace hostile. A court might deem a workplace hostile if a "reasonable person" would consider the place uncomfortable and unpleasant.

Hostile work environment case alleges management favored rapist

Employers in Indiana that disregard the criminal conduct of an employee outside of work could end up involved in litigation if one or more co-workers experienced discomfort in the alleged criminal's presence. A case involving a female employee of another state's department of corrections has been remanded back to the trial court after an appeals court found validity in her claim of a hostile work environment.

The man accused of raping a co-worker outside of work had existing complaints about his behavior from other female co-workers. Management placed him on paid leave while investigating the rape accusation. One of the female co-workers accusing him obtained a civil protective order to keep him away from her. At this time, management told staff that they eagerly anticipated his return to work. Management also sent an email encouraging co-workers to offer support to the man on leave.

Court rules that fired employee can pursue FMLA claim

Indiana workers and others in America are entitled to take FMLA leave under certain circumstances. According to a recent ruling by the U.S. District Court for the Eastern District of Pennsylvania, one maintenance employee could pursue FMLA claims despite getting fired. The man was hired to work as director of maintenance at Maplewood Nursing and Rehabilitation Center, and he was given a performance improvement plan in 2012.

At the time, his supervisor claimed that he failed to properly train and mentor a subordinate. He was also accused of not responding to phone calls or taking an active role in resolving security staff or maintenance issues. Around this time, the man started investigating his manager's attendance despite not being authorized to do so. He later received a written and verbal warning as well as a second performance improvement plan.

Federal court case could impact employee classification

In September, a federal court case began that could have far-reaching implications on employee classification for independent contractors. The result could affect similar cases in Indiana and across the country.

The case involves a man who worked as a food delivery driver for GrubHub. The man provided delivery services for the company for a period of five months in 2015 and 2016. In his lawsuit, he argues that he is owed overtime pay and reimbursement for business expenses because he was misclassified as an independent contractor rather than an employee of the company. Independent contractors are responsible for their own hours and cannot generally collect overtime or extra money for business expenses. The distinction between the two is sometimes a matter of debate. That distinction often comes down to the level of autonomy workers have in dictating how they conduct business.

The negative financial and professional consequences of bias

Black and Latino workers in Indiana and elsewhere may find it harder to find a job compare to their white counterparts. According to researchers at Northwester, Harvard and the Institute of Social Research in Oslo, blacks and Latinos face roughly the same levels of bias in hiring that they did 25 years ago. The researchers analyzed various studies that have been conducted since 1989.

They found that white applicants were called back 36 percent more often than black workers and 24 percent more often than Latino applicants. Even black and Latino workers who had a college degree were not immune from being discriminated against. This has led to a wage gap that may make it harder to buy a home or start a family. Furthermore, while white college students likely get help from their parents, black college-educated individuals provide assistance to their families.

How to handle DACA uncertainty

Business owners in Indiana and elsewhere could be fined or jailed for employing DACA "Dreamers" after their work permits expire. However, business owners may face penalties if they terminate workers because of their DACA statuses. It could also be discriminatory to check paperwork related to a person's work status or ask questions about that subject.

Employers should understand that failing to hire a worker because his or her work permit is set to expire may run afoul of employment law as well. Furthermore, terminating workers or not hiring those in the DACA program may be an overreaction at this point. This is because those in the program who have work permits expiring on or before March 5, 2018 may be able to renew those permits until Oct. 5. The new permits would then be valid for two years.

Natural disasters, FMLA and the FLSA

Employers in Indiana cannot stop following regulations around the Family and Medical Leave Act or the Fair Labor Standards Act when a natural disaster occurs. When businesses do disaster planning, it is best to make contingency plans with these regulations in mind.

An employee cannot volunteer to work extra hours for an employer in a natural disaster. In general, an employee is owed overtime for all hours worked during a natural disaster. One issue employers must consider is what they will do if an employee is unable to use timekeeping systems or if timekeeping records are destroyed since the FLSA has certain requirements for record keeping.

OSHA's online retaliation complaint form gets an update

Retaliation is unfortunately often used by Indiana employers to threaten and silence their workers on a wide range of topics including workplace safety. Such actions as demotion or wrongful termination are illegal, and OSHA and other federal agencies have the authority to investigate complaints and protect whistleblowers in specific circumstances. OSHA now provides an online form with special features for employees to report retaliation.

The new complaint form uses worker answers to direct complaints to the appropriate federal agency. The system shows questions based on user response to the last question. Both English and Spanish formats are available. OSHA provides protection for workers against retaliation as a response to some worker actions, such as reporting unsafe working conditions. Pop-up boxes will alert users when another agency has jurisdiction over different protected activities, such as reporting unlawful discrimination.

The risks of reporting workplace harassment

Some Indiana employees may be unsure of what to do if they witness sexual harassment in the workplace. Unfortunately, reporting sexual harassment on behalf of other employees can carry several risks. One man who reported seeing harassment in his workplace was demoted and then fired.

The man's boss had made lewd comments about female employees and often yelled at them in meetings. The women told the man that their boss made them feel unsafe, but they felt as though their jobs would be in jeopardy if they complained. The man then went to human resources about the issue. Human resources claimed that they conducted an investigation and then closed it; however, nothing changed. The man was then demoted and terminated, allegedly for poor performance. He said that he struggled to find a job afterward and that his health and financial situation suffered.

Employer sued after confusing FMLA leave and maternity leave

Indiana workers who are entitled to leave under the Family and Medical Leave Act as well as maternity leave should be aware of their rights. In a New York case, a woman was fired for allegedly failing to return to work after finishing her maternity leave. However, it appears that the employer considered both leaves to run concurrently, meaning the employee was using both her FMLA leave and maternity leave at the same time.

When the employee initially scheduled her time off for maternity leave, she sent an email to her employer that was titled "Maternity leave", indicating the type of leave she was taking. She also requested the ability to use her accrued vacation leave. The employer did approve the leave and failed to provide FMLA eligibility and designation notices.

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