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Indianapolis Employment Law Blog

When you get fired for doing the right thing

Claudia Ponce de Leon wanted to do the right thing. When she saw something that wasn't ethical-three bankers under her supervision were opening fake bank accounts to meet sales goals-she called the bank's ethics hotline. What happened next is enough to get almost anyone angry.

Three weeks after her report, Ponce de Leon was terminated from her position. Feeling she was wrongfully terminated, she brought her complaint to the Labor Department's Occupational Safety and Health Administration (OSHA). The bank defended their action stating she had a documented history of excessive drinking and other inappropriate behavior. Ponce de Leon denied this.

Pay may not factor into overtime eligibility

Indiana workers and others that are considered highly paid for practical purposes may be entitled to overtime pay, according to the Fair Labor Standards Act (FLSA). A 6th Circuit court ruling found that the legal meaning of the phrase "highly compensated employees" should be considered regardless of how much a person makes. The case was brought by two welding inspectors that worked for a Houston-based construction contractor.

The welders first brought their FLSA putative class action suit before a U.S. District Court in Columbus. Before that court hearing, the company claimed that the employees were 'in a bona fide executive, administrative or professional capacity." Therefore, they should be exempt from the FLSA provision. A summary judgment was granted, dismissing the case. By making its ruling, the 6th Circuit put itself at odds with the 9th Circuit that had just considered an overtime case regarding mortgage underwriters.

Legality of cryptocurrencies as compensation

The use of cryptocurrencies has become increasingly common in Indiana as stories of their increasing values have made headlines. Employers may be tempted to attract employees to their companies with offers of compensation with cryptocurrencies like bitcoin. However, under U.S. federal law, this practice could be considered a wage and hour violation.

The Fair Labor Standards Act (FLSA) governs an employer's right to compensate employers with currencies other than U.S. currency. It allows employers to compensate employees with foreign currencies as long as certain requirements are met when the currency is converted to U.S. dollars, such as compliance with minimum wage standards. Courts have not addressed the issue of whether compensation with cryptocurrencies complies with the FLSA.

Care is required when advancing earnings to employee

Employers in Indiana who pay their employees on commission should be mindful of Department of Labor rules regarding paying 'draws" against future commissions. Even an unused written policy can cause problems in the future.

In a recent US Court of Appeals Sixth Circuit decision, the court determined that a written payment policy containing an improper provision could give rise to a wage and hour claim, even if the provision was never enforced. The claim arose on several allegations regarding payment of earnings.

The majority of transgender workers experience discrimination

Nearly all transgender workers in Indiana and across the United States have suffered on-the-job harassment or discrimination, according to a new report by the U.S. Commission on Civil Rights. As a result, the organization is calling on Congress to pass legislation that explicitly protects LGBT people from discrimination in the workplace.

The commission's report found that 90 percent of transgender workers experienced workplace discrimination. Of those, approximately 25 percent were not allowed to use bathrooms that matched their gender identity or were told to present as a different gender to avoid being fired. Around one-quarter of respondents also had information about their gender identity disclosed by a colleague or supervisor without their permission. More than 70 percent of transgender workers said they dealt with discrimination by hiding their gender identity, delaying their gender transition or quitting their job. The report also found that more than half of all LGBT employees earn less money, are denied promotions, are terminated from their jobs and experience difficulty finding work.

Sexual harassment underreported, dismissed in court

When people in Indiana and throughout the country take charges of sexual harassment before the legal system, those cases are often dismissed by judges. Nationwide, only 3 to 6 percent of sexual harassment cases make it to trial.

However, problems in addressing sexual harassment begin even earlier than that. It is estimated that although around 25 to 50 percent of women experience harassment in the workplace, no more than 15 percent report its occurrence. Retaliation is one of the main reasons that prevent this reporting, but many people also are discouraged by the high dismissal rate by courts.

One-third of Native Americans face workplace discrimination

Indiana residents may be surprised to learn that more than one-third of Native Americans report that they have experienced race-based slurs, harassment, violence and discrimination in the workplace, according to a new survey. The survey was administered on behalf of the Harvard T.H. Chan School of Public Health, National Public Radio and the Robert Wood Johnson Foundation.

The survey was intended to explore the personal discrimination experiences of certain groups, including Native Americans, African Americans, Latinos, Asian Americans, white Americans and LGBTQ adults. A sample of 3,453 people were contacted between January 26 and April 9, 2017, 342 of whom were Native American. When reporting personal experiences of discrimination, 35 percent of Native Americans said they had personally experienced slurs, and 39 percent said they had heard offensive or insensitive comments regarding their race or ethnicity. In terms of the workplace, 33 percent of Native Americans reported experiencing race-based discrimination when seeking a promotion or raise, and 31 percent said they had experienced discrimination when applying for jobs.

Sexual harassment in the workplace

Recent allegations made against powerful people in entertainment and politics have shone new light on sexual harassment across all industries and in all states, including Indiana. An outgrowth of the newfound focus on workplace sexual misconduct is the "me too" campaign, which has provided a platform for men and women to come forward with details of their experiences working in diverse work environments. Companies large and small have and do face legal actions based on the manner in which they handle sexual harassment cases.

Even with the prevalence of workplace sexual misconduct, only 30 percent of those experiencing harassment lodge a complaint with their employers. An even smaller percentage of those complaining file charges with the Equal Employment Opportunity Commission. The EEOC, which investigates meritorious sexual harassment claims, received 27,000 sexual harassment complaints in 2016.

What employers can learn from Hollywood

Allegations of sexual harassment in Hollywood may be getting the attention of the mainstream media at the moment. However, the lessons learned in those cases could be helpful for Indiana employers. Ideally, when a worker reports an incident of sexual harassment, his or her employer will work to resolve the situation properly instead of trying to make it go away. Investigations should be prompt, thorough and properly documented regardless of the nature of the harassment.

Employers should work to take steps to make sure that the problem is dealt with correctly and efficiently. This may involve updating training manuals or harassment policies. It also is important to understand that not every allegation is true or being articulated accurately. Therefore, companies should take their time before suspending an employee based on an accusation that may or may not be proven to be true.

How employees can help prevent harassment in the workplace

Although sexual harassment does occur in workplaces, not everyone is actively involved. There are sometimes witnesses who have observed the harassment or have heard of incidents occurring. Indiana employees can help prevent future incidents by taking action.

Those who see a coworker being harassed can prevent further harm from occurring by saying something. By saying something as a harasser is making inappropriate comments or advances shows the harasser and the person being harassed that others are aware inappropriate behavior is happening and that it is not viewed positively. Another way employees can help prevent future harassment is to speak up even when targeted coworkers are not present. For example, if male employees are speaking inappropriately about a female coworker, calling them out can have a positive effect.

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