http://www.newmexicoemploymentattorneyblog.com/ Published by Collins & Collins, P.C. en Copyright 2011 Tue, 20 Dec 2011 15:14:13 -0700 http://www.sixapart.com/movabletype/ http://www.rssboard.org/rss-specification NuevoMexicoAbogadoBlogComhttp://feedburner.google.com <p>Year end performance reviews and bonuses are often sensitive. Bad performance reviews are always tricky. They are particularly tricky when the employee having performance difficulties is a member of a protected class. Though risks cannot be completely eliminated, there are a few key ways to handle those situations and minimize risk. </p> <p>First, any negative feedback contained in a performance evaluation should be supported by a manager's documentation of the issue when it arose. Second, negative feedback should be based on objective criteria, not subjective factors that may be easily influenced by prejudice and discriminatory intent. Third, if an employer is concerned that an employee may interpret a negative review with salary or other material implications as <a href="http://www.collinsattorneys.com/lawyer-attorney-1750408.html">employment discrimination</a>, it is always helpful to involve an attorney experienced in employment law to review the situation with fresh eyes and provide advice as to how to proceed.<br /> <br /> Bonuses can also provide a host of <a href="http://www.collinsattorneys.com/lawyer-attorney-1750406.html">employment law </a>risks but if handled properly, can be a great way to motivate staff and earn employee loyalty. One consideration with bonuses is to ensure that employees in protected classes are generally treated like those who are similarly situated to them in rank and duties. If there is a discrepancy, there must be a very good reason for it other than the class status. In addition, the reasons for the differential treatment should be well documented and based on objective criteria. <br /> <br /> Bonuses can also have <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour law</a> implications. If a non-exempt employee receives a bonus that can be interpreted as non-discretionary (meaning that they earned it based on performance goals, productivity or other criteria), then the employee will be entitled to an adjustment to his or her base rate for overtime calculations made over the period in which the bonus was earned. If the bonus is earned over a year, then, the bonus would need to be pro-rated into the employee's hourly rate over that time period. Any overtime worked would have to be adjusted accordingly and a small additional amount of overtime pay should be paid. There are programs that assist employers with such calculations. If a bonus is entirely discretionary, however, an employer will not need to engage in that calculation. If an employer is not sure about whether a bonus meets the "discretionary" criteria, they should obtain legal guidance.<br /> <br /> A final area that can cause trouble with bonuses arises when an employee leaves at bonus time and an employer doesn't want to pay the bonus. If the bonus is "earned" at the time of the departure, then it must be paid. Clear policies regarding bonuses that require employment as of the date a bonus is paid can address this issue and protect employers.<br /> <br /> If navigated properly, the year end Holiday Season may be a time of joy and prosperity for employees and employers. However, this often requires the assistance of preventative counseling with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1749872.html">experienced employment law attorney </a>to avoid potential pitfalls. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=ZKjvHtaSJ3U:JO4xLm5sH_Q:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=ZKjvHtaSJ3U:JO4xLm5sH_Q:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=ZKjvHtaSJ3U:JO4xLm5sH_Q:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=ZKjvHtaSJ3U:JO4xLm5sH_Q:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=ZKjvHtaSJ3U:JO4xLm5sH_Q:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/ZKjvHtaSJ3U" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/ZKjvHtaSJ3U/year-end-performance-reviews-a.html http://www.newmexicoemploymentattorneyblog.com/2011/12/year-end-performance-reviews-a.html Disparate Treatment Employer Compliance Employment Discrimination Protected Class Wage and Hour Claims Tue, 20 Dec 2011 15:14:13 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/12/year-end-performance-reviews-a.html <p>For employers and employees, the Holiday Season is often a time for year-end parties, performance reviews and bonuses. All of these things may expose employers to major potential <a href="http://www.collinsattorneys.com/lawyer-attorney-1750406.html">employment law </a>risks. The first and most immediate risk is the company holiday party. Santa is great. Drunk Santa should take his show to Vegas. </p> <p>Holiday parties are in many instances, expected and beneficial for employers and employees. They are a way to thank and motivate staff and encourage them about the future of the employer's business. They also bring a host of potential risks for employers. </p> <p>Alcohol is typically at the root of these risks. <a href="http://www.collinsattorneys.com/lawyer-attorney-1750412.html">Title VII Sexual harassment claims</a> are often associated with after-work social functions involving managers, staff and alcohol. Other discrimination claims may arise as well due to the loss of conversation filters that many drinkers experience. </p> <p>These are bad enough. But it does not end there. They same drunk supervisor that is groping the young secretaries and going off on religious/racist/sexist rants may well be the same person that t-bones an innocent family on his or her way home. Drunk driving following a work party can also create enormous liability for employers under <a href="http://www.newmexicoinjuryattorneyblog.com/dram-shop-liability/">New Mexico's dram shop and social host laws</a>. </p> <p>Limiting alcohol consumption at company functions is essential. Perhaps this is accomplished by issuing a defined number of drink tickets to each employee. Better yet, from a liability perspective, get rid of the alcohol altogether. Many cautious employers have moved in this direction moving holiday parties from evening to work hours eliminating alcohol from the equation completely.</p> <p>A holiday party is a great way to show an employer's respect and gratitude to its employees. Unfortunately, this target is often missed and missed badly resulting in post holiday employment discrimination claims and personal injury lawsuits. Happy go lucky drunk Santa this year will be sad and poor strip mall Santa next if employers are not careful. </p> <p><br /> <a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=7ufehshSfAg:x2MqM8MwyK8:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=7ufehshSfAg:x2MqM8MwyK8:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=7ufehshSfAg:x2MqM8MwyK8:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=7ufehshSfAg:x2MqM8MwyK8:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=7ufehshSfAg:x2MqM8MwyK8:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/7ufehshSfAg" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/7ufehshSfAg/no-santa-is-better-than-drunk.html http://www.newmexicoemploymentattorneyblog.com/2011/12/no-santa-is-better-than-drunk.html Employment Discrimination Remedies & Damages Title VII Employment Discrimination company parties dram shop liability employer holiday parties employer social host liability Fri, 09 Dec 2011 09:07:28 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/12/no-santa-is-better-than-drunk.html <p>A recent case from the 10th Circuit case addresses a number of commonly mistaken beliefs regarding <a href="http://www.collinsattorneys.com/lawyer-attorney-1750408.html">employment discrimination claims</a>. The case of <a href="http://www.collinsattorneys.com/docs/carrera_v._tyson_foods__10th2011__hostile_workplace.pdf">Carrera v. Tyson Foods </a>involved a <a href="http://www.collinsattorneys.com/lawyer-attorney-1750412.html">Title VII hostile work environment claim</a>. Though the opinion is only 4 pages long, non-binding and did not even merit oral argument, it provides significant insight into the challenges of these types of claims.</p> <p>The plaintiff, Mayra Carrera, worked in a meat processing plant for Tyson Foods. Several of Ms. Carrera's co-workers, both male and female, made sexually suggestive gestures with their hips toward the plaintiff. Ms. Carrera reported the conduct to management. Management promptly responded by speaking with the offending parties. There were no further incidents. </p> <p>Ms. Carrera then "felt ostracized by employees keeping their distance." As a result, she requested and received a transfer to another post. Despite the fact that Tyson Foods responded to her complaint and even transferred her upon request, she filed a Title VII sex discrimination hostile work environment lawsuit. </p> <p>The district court found that the conduct did not rise to the level of a hostile work environment because there were only "one or two isolated instances of boorish behavior" thus dismissing the case on summary judgment. </p> <p>Ms. Carrera appealed arguing that the district court failed to consider the ostracizing behavior of her co-workers. The 10th Circuit disagreed citing the district courts correct observation that standoffish, unfriendly and/or unapproachable behavior cannot alone create a hostile work environment sufficient to support a claim. </p> <p>The 10th went on to say that even if the offensive sexually suggestive conduct and the "ostracizing" behavior had created a hostile work environment, the claim would have rightfully been dismissed anyway as a result of Tyson's response to Ms. Carrera's report of misconduct. </p> <p>The court did not specifically cite Faragher and Ellerth but Tyson would have benefitted from the affirmative defense under Faragher/Ellerth had it been necessary. Tyson clearly had a reporting procedure in place, and followed that procedure upon the report of misconduct by Ms. Carrera. Tyson both stopped the behavior and took action to avoid future misconduct against Ms. Carrera. </p> <p>In short, this case encapsulates some very important points regarding employment law claims. First, isolated incidents are generally insufficient to create a hostile work environment. Second, rudeness or "ostracizing" behavior is also generally insufficient for a hostile work environment claim. Next, an employer has a defense if proper policies and procedures are in place and the employer followed those procedures for reporting, preventing and resolving the claims. In this case, Tyson acted as a responsible employer when it took prompt remedial action in response to Ms. Carrera's complaints.</p> <p>This should serve notice to both employees and employers. Employees must report concerns promptly to their employers but cannot recover <a href="http://www.collinsattorneys.com/lawyer-attorney-1802598.html">damages </a>when the employer takes appropriate action to address the problem. Employers should take note that if they do not follow the lead of employers such as Tyson here, their failure to have such a system in place will put them at a severe disadvantage in the event of an employment discrimination claim. </p> <p>Finally, what is less obvious from the opinion is that these types of claims are very difficult to win. Most get dismissed on summary judgment, meaning the plaintiff will not get to trial. Many more lose at trial. The difficulty and expense of these cases explain and dictate our <a href="http://www.collinsattorneys.com/lawyer-attorney-1820760.html">very strict employment law case evaluation process</a> when reviewing potential cases for employees claiming discrimination.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=BhzLzfB7pBQ:8Pr173cQX5s:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=BhzLzfB7pBQ:8Pr173cQX5s:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=BhzLzfB7pBQ:8Pr173cQX5s:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=BhzLzfB7pBQ:8Pr173cQX5s:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=BhzLzfB7pBQ:8Pr173cQX5s:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/BhzLzfB7pBQ" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/BhzLzfB7pBQ/title-vii-hostile-workplace-cl.html http://www.newmexicoemploymentattorneyblog.com/2011/12/title-vii-hostile-workplace-cl.html Employment Law Case Evaluation Wed, 07 Dec 2011 10:05:42 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/12/title-vii-hostile-workplace-cl.html <p>In today's economic climate, many employers have turned to contract labor in order to keep costs down and to maintain greater flexibility in its labor force. Both of these goals are understandable. However, there are a number of risks associated with contract labor that may more than offset any advantages. <br /> <br /> Misclassification of employees as contract labor has long had significant consequences for employers. Misclassification has implications under the<a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html"> Fair Labor Standards Act (FLSA)</a>. Failure to properly classify can result in significant <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour</a> penalties under both State and Federal minimum wage and overtime laws. These penalties could be substantial for back wages, legal fees and liquidated damages. <br /> <br /> The U.S. House of Representatives introduced H.R. 3178 which would for starters impose new penalties under the FLSA of up to $1,100 per employee on first time offenders. The penalties would go up $5,000 per employee for repeat or willful violations. In addition, the bill would create a number of mechanisms for discovery and investigation of these misclassifications. <br /> <br /> The bill would allow information sharing with the Department of Labor, the IRS, and state unemployment insurance agencies. The wage and hour issues are bad enough, but the tax issues may result in far greater penalties and fines. Employers found to be in violation will face back taxes and penalties on all the wage withholding items including social security, unemployment and payroll taxes. Depending upon the size of the labor force and the duration of the misclassifications, these penalties could be enormous. <br /> <br /> The goal is to ferret out and penalize violations. It is estimated that there are around 10 million U.S. workers classified as contract labor. It is estimated further that up to 30% of employers misclassify employees and contract labor. In light of the estimates, this bill if passed will have enormous consequences across the economy. <br /> <br /> Keep in mind that should the House Bill become law, employers operating in New Mexico would be subject to the new federal law as well as any state and local laws addressing these violations. In short, though the goals of utilizing contract labor may seem laudable and even necessary to some employers, the costs could in the end far exceed any gains. And though the costs may be somewhat higher in the short term, it might in the long run be far more productive to put the workers on the payroll or hire workers through an employment staffing service. <br /> <br /> At a minimum, an employer should carefully consider the legality of the classification above and beyond the convenience or cost savings. The heightened scrutiny over contract labor classifications is not likely to subside any time soon. In fact, an employer would be wise to assume the opposite. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=6H0f7BRIRMM:r4qeP-Z6CJo:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=6H0f7BRIRMM:r4qeP-Z6CJo:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=6H0f7BRIRMM:r4qeP-Z6CJo:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=6H0f7BRIRMM:r4qeP-Z6CJo:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=6H0f7BRIRMM:r4qeP-Z6CJo:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/6H0f7BRIRMM" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/6H0f7BRIRMM/misclassified-contract-labor-c.html http://www.newmexicoemploymentattorneyblog.com/2011/11/misclassified-contract-labor-c.html Employer Hiring Practices Fair Labor Standards Act (FLSA) Wage and Hour Claims Fri, 04 Nov 2011 14:52:56 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/11/misclassified-contract-labor-c.html <p>Over the last few years, social media has not always been a friend to job seekers. In fact, raunchy party photos and inappropriate posts on public social media have been the downfall of many job applicants whose potential employers are savvy enough to check out their pages. And, while there has been a recent push to protect certain posts under labor laws covering "concerted activity" among workers, employees and applicants should still be very cautious with what they post publicly. </p> <p>After being the downfall of so many potential employees, Facebook is now making a concerted effort to help job seekers. Recently, Facebook announced that it will team up with the Department of Labor to deliver job postings though the "Social Jobs Partnership" page on Facebook, http://www.facebook.com/socialjobs. This service is being offered at no charge, and could ultimately advertise millions of job postings that may have otherwise gone unnoticed. </p> <p>So, if you are looking for a job, what should you consider when using the Social Jobs Partnership page? The first thing that the page asks you to do is to "like" it to get updates about the progress of this new site. Once you "like" a page on Facebook, though, it is added to your public profile and your profile can be seen by anyone looking into who has "liked" it. Before you click "like" on this page and you become visible to potential employers visiting the page, it would be wise to make sure that your picture is professional and appropriate. It's not clear how much this site will be used by employers at this early stage, but you should use caution in "liking" any work-related Facebook site.</p> <p>If you are a job seeker using any social media for your job search, remember that everything on your page could be seen by a potential employer if you make it available to them with lax security settings. If you blog, anything you post -- even if it is about the fight you had with your spouse the day before -- is fair game. Whether these things should be considered by employers is a separate issue, but you may never know what someone may find when they "Google" your name. Typically, social media tweets, blog posts and status posts are the things that will come up in such a search. Again, use good judgment and if you need to go back to a site and remove a post, think about doing so where necessary.</p> <p>In this job market, applicants need every advantage available to them and it is relatively easy to police your own internet profile. The new Facebook/ DOL program seems like it could be a great resource as long as you keep in mind what you are sharing through social media.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=DMaci3ec5ks:lt_ihWv8Acc:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=DMaci3ec5ks:lt_ihWv8Acc:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=DMaci3ec5ks:lt_ihWv8Acc:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=DMaci3ec5ks:lt_ihWv8Acc:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=DMaci3ec5ks:lt_ihWv8Acc:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/DMaci3ec5ks" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/DMaci3ec5ks/facebook-and-social-media---go.html http://www.newmexicoemploymentattorneyblog.com/2011/11/facebook-and-social-media---go.html Employer Hiring Practices Social Media Employment Issues Wed, 02 Nov 2011 12:40:04 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/11/facebook-and-social-media---go.html <p>With the job market so tight, new graduates are often looking for creative ways to enter their chosen fields. Some may even offer to work for free to get a foot in the door of their dream employer and of course, this often sounds tempting to the employer. Other times, employers may offer such internships to test a potential employee and get some free work from them in exchange for the opportunity. While it has some appeal on both sides of the relationship, this type of arrangement usually is not legal and an employer who permits such work may be hit with heavy penalties under the <a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html">Fair Labor Standards Act ("FLSA").</a></p> <p>The FLSA defines the concept of employee very broadly. The word "employ" is defined as to "suffer or permit to work." So, even if an employer doesn't ask for a person to work, if the employer permits the work given by the individual, it is employing the individual under the law. Once an employment relationship is established, an employer has an obligation to pay minimum wage and overtime or faces stiff penalties for failing to do so.</p> <p>In the private sector, most unpaid internships are considered to be employment. As such they are governed by the <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour laws </a>of both New Mexico and the FLSA. However, if certain strict criteria are met that establish the internship as mainly for the purpose of educating the intern, the employer may be excused from paying the intern. These criteria include:</p> <blockquote>1. It is similar to training provided in an educational environment even though it involves the operation of the employer's facilities; 2. It provides experience that is for the intern's benefit, as opposed to the employer's; 3. The intern does not take an employee's job and is closely supervised by the employer's existing workers; 4. While the employer is providing training, it receives no immediate advantage from the intern's work; to the contrary, the employer's operations could suffer or be slowed due to the training; 5. There is no job guaranteed when the internship is over; and 6. Both the intern and the employer agree that the intern is not entitled to wages during the internship.</blockquote> <p>As the criteria illustrate, any legitimate unpaid internship is not necessarily a benefit for the employer and could actually impede the employer's business. However, the intern will receive valuable training and education and will enter into the job pool with skills that could eventually assist the employer's work and/or industry. This exception is incredibly narrow and any relationship that doesn't satisfy them probably requires payment of minimum wage and overtime.</p> <p>While this economy certainly calls for creativity in the job marketplace, unpaid internships are highly risky for employers and the risk can far outweigh the benefit of free labor in the short term. If you have any questions about properly establishing an unpaid internship program, you should consult with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1749872.html">experienced employment law attorney</a>. Similarly, if you have been working for free in an illegal unpaid internship program, you should consult with an experienced attorney who can advise you of your rights under applicable state and federal labor laws.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=Q_mqmlQtKUU:7e4Z9J6diJI:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=Q_mqmlQtKUU:7e4Z9J6diJI:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=Q_mqmlQtKUU:7e4Z9J6diJI:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=Q_mqmlQtKUU:7e4Z9J6diJI:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=Q_mqmlQtKUU:7e4Z9J6diJI:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/Q_mqmlQtKUU" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/Q_mqmlQtKUU/are-unpaid-internships-legal-n.html http://www.newmexicoemploymentattorneyblog.com/2011/10/are-unpaid-internships-legal-n.html Employer Hiring Practices Fair Labor Standards Act (FLSA) Wage and Hour Claims Fri, 28 Oct 2011 12:25:23 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/10/are-unpaid-internships-legal-n.html <p>Facebook postings pose significant issues for both employees and employers. One issue in particular is r<a href="http://www.collinsattorneys.com/lawyer-attorney-1752483.html">etaliatory discharge</a> for employee attacks against their employer on Facebook or other social media sites. </p> <p>There have been a number of retaliation claims filed by employees following discharge for social media postings critical of their employers. These claims are largely unsuccessful. This is even the case when the postings are based on potentially legitimate employment related legal claims. For instance, one Federal District Court dismissed a claim arising out of the discharge of an employee for Facebook postings about her employer's failure to pay overtime wages. The retaliation claim was dismissed for failure to state a claim.</p> <p>In <em>Morse v. JP Morgan Chase</em>, the Middle District of Florida Federal District Court judge ruled that a retaliation claim requires some level of formality in the complaint process. In this case, the employee never actually complained to the employer prior to posting her grievance on Facebook. The Court stated that though an informal grievance or reporting to the employer might be sufficient, there must be some reporting to the employer. The reporting requirement, according to the Court, is basically a notice requirement putting the employer on notice and providing an opportunity to respond to the complaints. </p> <p>The Court equated the Facebook posting to blowing off steam. Despite the post to a public forum, the posting did not present the required level of formality necessary to establish a retaliation claim. In short, the Court stated that these posts are not protected activity upon which to establish a retaliation claim. Though this particular case was in Florida, there is no reason to believe the result would be any different in New Mexico, or the relatively conservative 10th Circuit Court of Appeals.</p> <p>This may sound like good news for employers. However, employers would do well to take a look at the many cases that are popping up around the country on the same type (and arguably much more egregious) postings that fall within the "concerted activity" protections under the National Labor Relations Act. National Labor Relations Act (NLRA) protects the right of employees to "engage in ... concerted activities for [their] ... mutual aid or protection...." In other words, employers should tread very lightly in cases involving union employees. And, union employment is not necessary for "concerted activity". </p> <p>There have been many recent NLRB (National Labor Relations Board) decisions in favor of employees for far more vocal and seemingly improper social media posts. The NLRB's August 18, 2001 <a href="http://www.collinsattorneys.com/docs/om_11_74_report_of_the_acting_general_counsel_concerning_social_media_cases_doc.pdf">"Report of the Acting General Counsel Concerning Social Media Cases" </a>sets forth a variety of situations including some that might be somewhat surprising (shocking) to employers that give rise to protected concerted activity. </p> <p>In short, this is a confusing, fast moving, fast evolving area of employment law. There are hazards for employees and employers both. Both would do well to verse themselves in the law as they venture into the world of social media and employment law. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=-2kyMtnHBVw:5KX0Zzxuk20:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=-2kyMtnHBVw:5KX0Zzxuk20:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=-2kyMtnHBVw:5KX0Zzxuk20:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=-2kyMtnHBVw:5KX0Zzxuk20:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=-2kyMtnHBVw:5KX0Zzxuk20:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/-2kyMtnHBVw" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/-2kyMtnHBVw/protection-for-employee-facebo.html http://www.newmexicoemploymentattorneyblog.com/2011/10/protection-for-employee-facebo.html Retaliation Social Media Employment Issues Wrongful Discharge Mon, 24 Oct 2011 11:44:34 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/10/protection-for-employee-facebo.html <p>Both the <a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html">Fair Labor Standards Act </a>and the New Mexico Minimum Wage Act provides an exception to the State's current minimum wage of $7.50 per hour for those workers that work off tips. The exception has become known as the tip credit. There are fairly strict rules governing the tip credit that both employers and employees alike would be wise to learn.<br /> <br /> The New Mexico Minimum Wage Act at NMSA §50-4-22(C) states that any employee making over $30.00/month in tips may be paid a minimum wage of only $2.13. This seems very liberal toward the employer since this would obviously place many employees at wages below minimum wage with opportunistic employers. However, there is more and this is where employers can run into serious problems with significant financial exposure. <br /> <br /> The statute goes on to state which should be obvious is that the tip exception is not meant as a means to pay employees below minimum wage. Though the tips can be included as part of the employee's wages, the combination of tips and wages paid by the employer must meet the $7.50/hour requirements. <br /> <br /> In addition, the New Mexico Minimum Wage Act requires that employee be paid time and a half for all overtime. NMSA §50-4-22(D) states: "An employee shall not be required to work more than forty hours in any week of seven days, unless the employee is paid one and one-half times the employee's regular hourly rate of pay for all hours worked in excess of forty hours." In other words, if the employee works more than 40 hours in a week, the employee must be paid overtime. <br /> <br /> And yes, this requirement does apply to tip employees. This is an area where employers can either inadvertently or by design run afoul of the law. Tip employees such as bartenders, waiters and waitresses, often work more than 40 hours per week. They are entitled to minimum wage for all hours up to 40 and time and a half for all those beyond. If the tips do not make up the difference, then the tip employee has a potential wage and hour claim. <br /> <br /> These claims have the potential for a huge financial hit on the employer. An employer would do well to do the math. It doesn't take much imagination to see the potential liability just on the underpayment of minimum wage and overtime pay. However, with liquidated double wages and attorney fees which are fairly standard in successful <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour claims</a>, the damage awards against an errant employer could be quite large. And this the case whether the violation was intentional or inadvertent.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=u5Xnig6y-Ck:Y5SixYooPro:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=u5Xnig6y-Ck:Y5SixYooPro:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=u5Xnig6y-Ck:Y5SixYooPro:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=u5Xnig6y-Ck:Y5SixYooPro:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=u5Xnig6y-Ck:Y5SixYooPro:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/u5Xnig6y-Ck" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/u5Xnig6y-Ck/minimum-wage-issues-with-tip-b.html http://www.newmexicoemploymentattorneyblog.com/2011/10/minimum-wage-issues-with-tip-b.html Fair Labor Standards Act (FLSA) Remedies & Damages Wage and Hour Claims Thu, 06 Oct 2011 20:23:21 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/10/minimum-wage-issues-with-tip-b.html <p>The <a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html">Fair Labor Standards Act (FSLA) </a>sets forth minimum wage requirements for employees. The New Mexico Minimum Wage Act sets forth its own minimum wage requirements. In addition, municipalities may set their own minimum wage requirements. There are a number of exceptions to minimum wage requirements. Among them is the exception for employees who work off tips. <br /> <br /> Specifically, the FLSA allows employers to pay less than minimum wage to those employees who "customarily and regularly receive tips." This covers a broad range of employees but is generally associated with waiters and waitresses. <br /> <br /> This provision came up in recent 5th Circuit Court of Appeals case of in <em>Roussell v Brinker Int'l, Inc.</em> The case is interesting for a number of reasons. First, the case caption indicates the importance of the case with Brinker international's website touting itself as "one of the world's leading casual dining restaurant companies. With more than 1,500 restaurants and over 100,000 team members in 31 countries and two territories, Brinker and its brands welcome more than one million guests into our restaurants every day. " Clearly, the case could have wide-ranging impact even if restricted to 5th Circuit and restricted only to Brinker. However, the case and the law set forth in the case have far broader implications. <br /> <br /> Secondly, the case makes clear that forced pooling of tips with employees that do not customarily and regularly receive tips will disqualify the employer from the minimum wage exception. This practice is not too uncommon in tipping environments both in the food service industry and beyond. <br /> <br /> Much of the case addressed the collective action requirements under the FSLA. Under FSLA collective action procedures, employees must opt in to the action. This differs from the more common Rule 23 class action claims where plaintiffs must opt out. The opt in provision has particular import since those that do not opt in cannot be bound by the outcome of the case as would be the case in a typical class action situation. <br /> <br /> The collective action against Brinker originally included 3556 servers. The class was reduced to only 55 plaintiffs due to what the district court found to be dissimilar fact patterns that did not allow class consideration of the claims. However, this disqualification of the larger class does not bar those remaining 3501 servers or others beyond that number, from bringing their own action. <br /> <br /> Once past the class certification, the Court of Appeals addressed the meat of the case which was that the plaintiffs alleged that Chili's (a Brinker brand) coerced its wait staff into sharing tips with Quality Assurance workers. Those Quality Assurance workers did not customarily and regularly work off tips. In fact, they were paid minimum wage or greater. In addition, they had little contact with customers and rarely left the kitchen area. Their responsibilities were limited to monitoring food quality and presentation. <br /> <br /> In the end, it was found that these employees did not customarily and regularly receive tips and therefore their sharing of the tips disqualified Chili's from the minimum wage exception for the subject employees. The Court specifically addressed the contention that some of the Quality Assurance workers had dual roles sometimes working also as servers. The Court citing federal regulations stated, "In some situations an employee is employed in a dual job, as for example, where a maintenance man in a hotel also serves as a waiter. . . . He is employed in two occupations, and no tip credit can be taken for his hours of employment in his occupation of maintenance man. Such a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses."<br /> <br /> In short, the Quality Assurance workers were entitled to share tips only for those hours associated with their server duties. The case has broad applications as the cited language suggest covering a great many tip situations where servers, paid less than minimum wage and who work off tip income, are forced to share tips with support and other personnel who receive full wages under the FLSA and other minimum wage laws. <br /> <br /> The risk to employers in forcing the sharing of tips with those other personnel presumably to keep their wage demands down is great. In this particular case, the jury awarded the 55 plaintiffs $1.8 million against Brinker. Moreover there are at least 3500 other plaintiffs remaining with whom Brinker will have to deal. And, there may be more since these 3501 were only those that opted in to the collective action. By Brinker's own numbers from its website suggesting over 100,000 employees, there may just be some aggrieved employees who did not initially opt in who may reconsider after this initial ruling. <br /> <br /> And on a much broader note, employees and employers both should take note that this practice that appears to be fairly widespread will not be tolerated. Employees facing this situation should contact an experienced <a href="http://www.collinsattorneys.com/lawyer-attorney-1749872.html">employment law attorney</a>. For that matter, employers engaging in the practice would do well to do the same. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=V-3y2-kcWgQ:VYRJfrjQMCI:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=V-3y2-kcWgQ:VYRJfrjQMCI:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=V-3y2-kcWgQ:VYRJfrjQMCI:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=V-3y2-kcWgQ:VYRJfrjQMCI:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=V-3y2-kcWgQ:VYRJfrjQMCI:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/V-3y2-kcWgQ" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/V-3y2-kcWgQ/tip-employees-minimum-wage-exc.html http://www.newmexicoemploymentattorneyblog.com/2011/10/tip-employees-minimum-wage-exc.html Fair Labor Standards Act (FLSA) Wage and Hour Claims Mon, 03 Oct 2011 08:37:22 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/10/tip-employees-minimum-wage-exc.html <p>Sales employees often put in enormous numbers of hours. Many, if not most, salespeople will put in significantly more than 40 hours per week. Often times, the net result is pay at less than minimum wage. The question will arise for both employees and employers whether overtime pay is due on these excess hours. <br /> <br /> The <a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html">Fair Labor Standards Act</a> set forth minimum wage requirements. In addition, the State of New Mexico has its own Minimum Wage Act setting minimum wages within the state. Finally, individual municipalities may have their own set of minimum wage requirements. Employers are subject to all three sets of law with the employee gaining the benefit of the advantages of each. So the determination of whether these <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour laws</a> apply to sales employees is very important with missteps potentially very costly for the employer. <br /> <br /> Under the FLSA and related state and local laws, workers must be paid a minimum wage and overtime pay. There are a number of exemptions from this requirement under the FLSA. Among the exemptions are outside sales employees. There are several definitional requirements for classification of an employee as an outside salesperson. Simply calling an employee an outside salesperson is not enough. The classification is determined by job duties and not by title. </p> <p>In order to qualify as an outside salesperson, the requirements are seemingly pretty straightforward. First, the employee's primary job duty is making sales. Second, the employee must generally work off site away from the employer's place of business. In other words, the employee's job consists principally of making sales calls at the customer's place of business. </p> <p>For instance, determining the employee's primary duties can be challenging in some cases where the employee has multiple duties. Working away from the employer's place of business raises a number of issues. The employee must regularly and customarily work off location. This does not mean always, nor does it mean occasionally but instead lies somewhere in between. The definition of the employer's place of business has numerous possible complications as well particularly in the modern age of communications, email, internet and the remote employment possibilities that come with them. </p> <p>In short, these can be complicated issues for both the employer and the employee. The classification is critical for both. On the one hand, the employee may be unfairly classified and undercompensated. On the other, the employer can face serious and significant financial consequences for misclassification. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=OfM0E8Q2pH4:ahVRg9P4g4M:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=OfM0E8Q2pH4:ahVRg9P4g4M:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=OfM0E8Q2pH4:ahVRg9P4g4M:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=OfM0E8Q2pH4:ahVRg9P4g4M:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=OfM0E8Q2pH4:ahVRg9P4g4M:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/OfM0E8Q2pH4" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/OfM0E8Q2pH4/wage-hour-exemption-for-outsid.html http://www.newmexicoemploymentattorneyblog.com/2011/09/wage-hour-exemption-for-outsid.html Fair Labor Standards Act (FLSA) Wage and Hour Claims Thu, 29 Sep 2011 14:40:29 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/09/wage-hour-exemption-for-outsid.html <p>In most cases of <a href="http://www.collinsattorneys.com/lawyer-attorney-1751268.html">wage and hour disputes</a>, both state and federal law will apply. The employee has the option of going with one or both. As such, in most wage and hour cases, the employee plaintiff will make claims under both state and federal law. Fortunately for the employee, not so much for the employer, the employee will have the benefit of the most favorable set of laws.</p> <p>In deciding how to proceed, an employee plaintiff should understand a few of the differences between state and federal wage and hour law. Wage and hour disputes are governed under federal law under the <a href="http://www.collinsattorneys.com/lawyer-attorney-1787445.html">Fair Labor Standards Act (FLSA)</a>. The New Mexico Minimum Wage Act governs wage and hour claims under New Mexico state law. </p> <p>Currently, the New Mexico's minimum wage under the Minimum Wage Act is $7.50 which is higher than the federally mandated $7.25. Thus, New Mexico employees have the benefit of the more generous minimum wages under the Minimum Wage Act. In addition, there may be local minimum wage laws that apply which will then cover wages for employees within that locality. For instance, Santa Fe has a minimum wage of $9.85 which is currently the highest minimum wage in the country. </p> <p>The FLSA allows for a fluctuating work week for computation of minimum wage. This allows an employer to pay a fixed rate or salary to non-exempt employees otherwise covered by the minimum wage laws. Essentially, the worker is paid a salary with hours fluctuating from week to week. There are strict requirements on the use of the fluctuating workweek method, the most important and obvious of which is that the employee is paid no less than minimum wage for the hours worked. New Mexico does not allow fluctuating workweek arrangements. </p> <p>Finally, and perhaps the greatest difference and most advantageous to employees, New Mexico allows recovery of three years of damages for a violation while federal law allows for only 2 years damages unless an employee shows a "willful" violation. There is no requirement of a "willful" violation to recover 3 years damages under New Mexico law. <br /> <br /> It is important to explore all the available options when pursuing a wage and hour claim. It may be possible, and necessary, to plead (ask for) violations under federal, state and even local law to obtain the most beneficial recovery. Of course, this is the first step in a wage and hour claim. These claims get fairly complicated and suggest the assistance of an experienced <a href="http://www.collinsattorneys.com/lawyer-attorney-1749872.html">employment law attorney</a> for the evaluation of the employment law claim and pursuing the claims through litigation. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=mnX-6qunvOs:sf0aoMa4UvU:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=mnX-6qunvOs:sf0aoMa4UvU:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=mnX-6qunvOs:sf0aoMa4UvU:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=mnX-6qunvOs:sf0aoMa4UvU:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=mnX-6qunvOs:sf0aoMa4UvU:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/mnX-6qunvOs" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/mnX-6qunvOs/wage-hour-claims-in-new-mexico.html http://www.newmexicoemploymentattorneyblog.com/2011/09/wage-hour-claims-in-new-mexico.html Fair Labor Standards Act (FLSA) Remedies & Damages Wage and Hour Claims Thu, 22 Sep 2011 12:57:20 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/09/wage-hour-claims-in-new-mexico.html <p>News reports indicate that the EEOC has filed suit against a Raleigh insurance office for violation of the <a href="http://www.collinsattorneys.com/lawyer-attorney-1760843.html">Americans with Disabilities Act (ADA)</a>. The basis for the suit was the refusal to hire an insurance agent for failure of a drug test. No kidding! If you are an employer and this has not piqued your interest, keep reading. <br /> <br /> The subject employee was offered a job contingent upon passing a drug test. This is not uncommon. The employee failed the drug test testing positive for methadone. The employee was taking methadone as part of his recovery from drug addiction. According to news reports from the Charlotte News & Observer, he had been on the drug since 2004. <br /> <br /> Many employers will be surprised, and perhaps a bit outraged, to learn that this is not a legitimate grounds for denying employment. Drug addiction is considered disabilities under the ADA. As such, drug addicts are protected under the ADA and discrimination on the basis of either is therefore a violation of the ADA. It becomes a fine in between refusing to hire because of drug use and refusing to hire due to a drug addiction.<br /> <br /> The EEOC has in the past been reluctant to file these types of suits. However, the News & Observer reported that the EEOC achieved an $85,000 settlement in Pennsylvania for the refusal to hire a factory worker for testing positive for methadone. A spokesperson for the EEOC stated indicated that despite the obvious visceral reaction that these suits might cause, the law will be enforced. Might this be a trend? It would be unwise for an employer to assume that it is not.<br /> <br /> There are numerous implications suggested by this suit. The most obvious is that companies will need to take a close look at their hiring policies related to drug use. This in turn might suggest changes to the questions asked of applicants. Related, and perhaps less obvious but equally important, are company policies regarding background checks. Specifically, companies might want to think twice before conducting what has become a common practice of doing extensive and invasive background checks on applicants' social media activities. <br /> <br /> How is one related to the other? Often times, when conducting a social media background check, employers will come upon evidence suggesting drug and/or alcohol use. The employer might also find evidence that the applicant is in AA or drug rehab. The employer might find that the applicant is a member of certain organizations or groups suggesting alcohol or drug rehab. <br /> <br /> Or maybe the employer does not find any of that at all, but it is there nonetheless. How is the employer now going to explain the refusal to hire? How will the employer differentiate the applicant from other applicants that were hired? How will the employer explain that though they conducted the search, they someone failed to find evidence of drug or alcohol addiction? <br /> <br /> And it gets worse for scrutinizing employers. As you may have gathered by now, the ADA also protects alcoholics who are also deemed disabled under the ADA. More difficult to swallow for employers, the ADA protects drug addicts and alcoholics even when they are still using so long as they are not using at work and even if they are not in recovery and have no intent to cease their drug or alcohol use. </p> <p>In other words, all the party pics of the applicant chugging shots, and the inopportune pictures taken by and posted by friends of the applicant passed out, throwing up, standing on the bar taking all comers, may also pose problems. After all, anyone that would get drunk enough challenge a crowed to a brawl arguably has a drinking problem. And as difficult as it may be to accept, it is probably best that the employer not see these at all prior to making an employment decision.<br /> <br /> Most parents have spent the last several years cautioning their children against posting anything on Facebook or MySpace that might be found by employers. Kids of employers might just as well now be telling their parents to be careful on Facebook for far different reasons. Many employers believe the internet and social media provides a gold mine for information on applicants. And like many treasures, these may be purely illusory and best left alone.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=li-FDHz1LXw:IVvV9G6U-cM:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=li-FDHz1LXw:IVvV9G6U-cM:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=li-FDHz1LXw:IVvV9G6U-cM:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=li-FDHz1LXw:IVvV9G6U-cM:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=li-FDHz1LXw:IVvV9G6U-cM:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/li-FDHz1LXw" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/li-FDHz1LXw/drugs-alcohol-and-social-media.html http://www.newmexicoemploymentattorneyblog.com/2011/08/drugs-alcohol-and-social-media.html Americans With Disabilities Act (ADA) Employer Hiring Practices Tue, 23 Aug 2011 08:19:36 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/08/drugs-alcohol-and-social-media.html <p>Although background checks seem to have become a standard employment practice, employers must use caution throughout the process and when considering the results they receive. There are a number of laws that may be violated if an employer refuses to hire an employee based on an employee's credit, financial history or criminal history. </p> <p>Laws like the federal Fair Credit Reporting Act require proper notice to be given to potential employees prior to a background check being performed so that the employee can give informed consent. Although this law's name suggests that it only applies to "credit" information, it has been interpreted broadly to cover a wide range of background information. Once a check is performed, if an employer uses the information it receives to deny employment, the employer must provide the employee with the information it relied on and give the candidate an opportunity to explain or refute the negative report within a very short time period. Unless these steps are followed, the employer may be subject to liability and statutory penalties.</p> <p>Although many employers may not realize it in their haste to obtain employee background information, the use of criminal and financial reports can also violate the Equal Opportunities Employment Act by disparately impacting certain minorities. For example, if an employer refuses to hire an employee because of bad credit, the employer could be actually following a policy that disparately impacts certain minority groups. The same risk applies when an employer generally refuses to hire any candidate who has ever been charged with a crime, regardless of conviction history. Being charged with a crime does not show anything about actual guilt and certain minority groups tend to be victims of racial profiling, which is then carried into that employer's hiring practices illegally. </p> <p>This does not mean that an employer cannot ever consider credit or criminal history. If a job involves money, accounting, or similar employer assets, then credit history could be very relevant to a person's qualifications for a job and considering credit history is a legitimate inquiry. Similarly, if a job involves the care of children or the elderly, or a position of authority or responsibility for others, then criminal convictions (not charges) for things like assault, battery or weapons violations would be clearly relevant to job qualifications. If a job involves driving, then DWI convictions would be relevant and appropriate to consider. As a general rule, employers are usually safe in considering recent felony convictions and convictions for crimes of dishonesty. However, a refusal to hire based either on mere charges of a crime without more, or minor crimes that are not job-related, can certainly expose employers to liability under <a href="http://www.collinsattorneys.com/lawyer-attorney-1750410.html">employment discrimination laws</a>.</p> <p>Employers would do well to speak with an experienced <a href="http://www.collinsattorneys.com/lawyer-attorney-1749872.html">employment law attorney </a>prior to initiating employee screening policies that might violate the law. The areas has many potential legal pitfalls and these are growing daily with the growth of social media. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a></p> <p><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=zhJgkISB2Vo:i-_Gcvva7yk:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=zhJgkISB2Vo:i-_Gcvva7yk:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=zhJgkISB2Vo:i-_Gcvva7yk:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=zhJgkISB2Vo:i-_Gcvva7yk:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=zhJgkISB2Vo:i-_Gcvva7yk:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/zhJgkISB2Vo" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/zhJgkISB2Vo/employee-background-checks-a-d.html http://www.newmexicoemploymentattorneyblog.com/2011/08/employee-background-checks-a-d.html Employer Hiring Practices Employment Discrimination Wed, 17 Aug 2011 10:18:27 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/08/employee-background-checks-a-d.html <p>The recent case of <a href="http://www.collinsattorneys.com/docs/chevron_mining_v._united_mine_workers_arbitration_award_appeal-just_cause.pdf">Chevron Mining v. United Mine Workers</a> from the 10th Circuit sets forth the standard for appeal of an arbitration award under a collective bargaining agreement (CBA). The case sets forth a very high standard for an appeal. In this case, it was the employer that was appealing the award. The same high standards will apply for an employee's appeal.</p> <p>The facts are pretty straightforward. The employee at issue had been disciplined a number of times during his brief 3 year employment with Chevron Mining. The latest incident, and the basis for his discharge, involved rules violations governing the fueling of his truck. The employee basically began the fueling operation then sat in the truck with his partner. He was not paying attention to the fueling but rather discussing elk hunting with his partner. The two heard a pop and realized the truck was over fueled and was overflowing with fuel.</p> <p>Again in violation of company rules, the employee did not report the fuel. Instead, he asked his partner not to mention it and he attempted to clean up the fuel on his own. Later it was discovered that the fuel tank had water in it which caused damages to some of the company's equipment. An investigation was undertaken and the incident with the employee was discovered. The employee and his partner both denied the incident but later admitted it. He was discharged as a result of the rules violations, his failure to report and subsequent attempt to conceal his negligence. </p> <p>The collective bargaining agreement states that an employee cannot be discharged but for "just cause." The CBA placed the burden on the employer to establish grounds and to prove just cause for termination under the CBA. Just cause is not defined with specificity in the CBA. However, the company rules and safety policies set forth a number of requirements which all employees must follow. Employees must sign an acknowledgement upon hiring that they have read, understood and will follow the rules and procedures. Among those rules is the rule governing presence during fueling and reporting of any accidents. More generally he rules set forth discipline and possible discharge for "[i]nattention to your job," and "[k]nowing violation of, or disregard for, environmental, health or safety rules, practices or legal requirements."</p> <p>The employee claimed he was <a href="http://www.collinsattorneys.com/lawyer-attorney-1751270.html">wrongfully discharged</a> under the CBA and appealed the discharge through the union grievance process. The case was taken before an arbitrator. The arbitrator made a number of interesting findings including that the employee was negligent and that he provided false information in the investigation of the incident. However, the arbitrator found that the company lacked just cause for the termination. The arbitrator entered an order reinstating the employee on a 180 day probationary period during which he could be summarily discharged for any subsequent rules violations.</p> <p>Chevron appealed the arbitrator's award arguing that the ruling was inconsistent in its finding of negligence and deceit while also finding a lack of just cause. The 10th Circuit upheld the arbitration award setting forth the burden for an appeal of an award under a CBA binding arbitration provisions.</p> <p>The court stated that "great deference" will be given to arbitration awards and should be reversed "only if based on a "manifest disregard" of the law, defined as "willful inattentiveness to the governing law." The court quoted the 1997 10th Circuit opinion in Denver & Rio Grande Western Railroad v. Union Pacific Railroad to drive home the point: </p> <blockquote>"Errors in either the arbitrator's factual findings or his interpretation of the law (unless that interpretation shows a manifest disregard of controlling law) do not justify review or reversal on the merits of the controversy. Because of the courts' limited ability to review arbitration awards, their powers of review have been described as 'among the narrowest known to the law.'"</blockquote> <p>In short, it is very hard to overturn an award under binding arbitration pursuant to a collective bargaining agreement. In this case, the award was in the employee's favor. The same high burden will apply in case of an employee's appeal. </p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=j3_5E0z_lDg:yRaV2ixv65A:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=j3_5E0z_lDg:yRaV2ixv65A:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=j3_5E0z_lDg:yRaV2ixv65A:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=j3_5E0z_lDg:yRaV2ixv65A:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=j3_5E0z_lDg:yRaV2ixv65A:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/j3_5E0z_lDg" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/j3_5E0z_lDg/10th-circuit-sets-high-standar.html http://www.newmexicoemploymentattorneyblog.com/2011/08/10th-circuit-sets-high-standar.html Wrongful Discharge Mon, 15 Aug 2011 08:06:00 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/08/10th-circuit-sets-high-standar.html <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1752483.html">Illegal employer retaliation</a> can come in a variety of forms. On occasion, it is not even directed at the employee. Instead, it is directed at others closely related to the employee. In the past, this often escaped <a href="http://www.collinsattorneys.com/lawyer-attorney-1750412.html">Title VII protection</a>. The U.S. Supreme Court has now made clear that such third party retaliation is equally unlawful. </p> <p>The facts of the 2011 Supreme Court case of <a href="http://www.collinsattorneys.com/docs/thompson_v._north_american_stainless_ussc_third_party_retaliation.pdf">Thompson v. North American Stainless </a>are pretty straightforward. Both the plaintiff, Eric Thompson and his fiancé, Miriam Regalado worked for the defendant. Regalado filed an EEOC complaint alleging sex discrimination. Thompson was fired 3 weeks later. Thompson brought a Title VII retaliation claim.</p> <p>The district court and the 6th Circuit followed existing case-law that barred Thompson from making a claim since he had not himself engaged in protected activity. The Supreme Court saw the case as presenting two important issues. First, was the firing of Thompson illegal retaliation? Second, does Thompson have a cause of action? The Court answered in yes on both counts.</p> <p>The Court indicated that the first question was easily resolved stating that if the facts as alleged were true, then there was little difficulty finding a violation of Title VII. The Court stated that Title VII's protections against retaliation are to be construed broadly to deter illegal employer discrimination. The Court contrasted the substantive protections with the retaliation provisions under Title VII. </p> <p>The substantive provisions require both that the plaintiff be within a protect class (sex, race, color, religion and national origin) and that the employer conduct affect the terms and conditions of employment. Unlike the substantive provisions, the provisions addressing retaliation are more open-ended simply prohibiting employer conduct that would discourage an employee from engaging in protected activity. </p> <p>In the past, the employee so discriminated against had to be the plaintiff. The Court however acknowledged the reality that behavior such as that of North American Stainless would discourage protected activity by employees more broadly. After all, employees such as Regalado would be discouraged from asserting their own rights for fear that their close relations would suffer the consequences. </p> <p>The defendant argued that allowing third party suits for retaliation could allow anyone who might be harmed by an illegal act of discrimination to sue for retaliation. The Court acknowledged the argument but said that such a risk did not justify a categorical prohibition on third party retaliation suits. </p> <p>Instead, the Court stated that the outcome would turn on the specific circumstances of each individual case. The Court suggested a spectrum of possible relationship from close family member to mere acquaintance. The former would almost always be protected while the latter rarely would. </p> <p>The Court then addressed whether Thompson had standing to sue. Title VII allows for suit by the "person claiming to be aggrieved." The Court stated that construing this language broadly problem lead to "absurd consequences" envisioned by the defendant such as allowing a shareholder to sue for loss of stock value upon the illegal discharge of a valued employee. </p> <p>To resolve the problem, the Court stated that an aggrieved party must fall within the "zone of interest" in order to make a claim under Title VII. Again, neither casual acquaintances nor shareholders would fall within the zone of interest necessary for standing. Title VII has no such reach. However, a close family member, or fiancé in this case clearly falls within the scope of Title VII protection. As such, any such party harmed by retaliatory action of an employer will have a cause of action of his or her own. </p> <p>The Court concluded by applying the "zone of interest" test to the circumstances of the case. The Court stated that assuming the facts as pleaded were accurate; the defendant's action in firing Thompson was clearly in retaliation for Regalado's EEOC complaint. The firing of Thompson was calculated to punish Regalado. As such, it was clearly intended to deter or discourage employees from engaging in protected activity. In this case, the plaintiff falls within the zone of interests necessary for standing. </p> <p>It will be interesting to see how the case-law develops around this opinion. Leaving the scope of protections undefined and reliant on the circumstances of each case will leave much room for dispute in future cases. After all there is a lot of room between close family relation and casual acquaintance. In fact, almost any co-worker will fall within this range. Where the boundaries will be drawn remains to be seen.</p> <p><a href="http://www.collinsattorneys.com/index.html">Collins & Collins, P.C.</a><br /> <a href="http://www.collinsattorneys.com/lawyer-attorney-1448087.html">Albuquerque Attorneys</a> </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html"><div style="text-align: center;"><em><strong>DISCLAIMER</strong></em></div></a><br /> </p><div class="feedflare"> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=PVkcaQUXwnM:pUNvtn3GQlI:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=PVkcaQUXwnM:pUNvtn3GQlI:7Q72WNTAKBA"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=7Q72WNTAKBA" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=PVkcaQUXwnM:pUNvtn3GQlI:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?i=PVkcaQUXwnM:pUNvtn3GQlI:V_sGLiPBpWU" border="0"></img></a> <a href="http://rss.justia.com/~ff/NuevoMexicoAbogadoBlogCom?a=PVkcaQUXwnM:pUNvtn3GQlI:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/NuevoMexicoAbogadoBlogCom?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/NuevoMexicoAbogadoBlogCom/~4/PVkcaQUXwnM" height="1" width="1"/> http://rss.justia.com/~r/NuevoMexicoAbogadoBlogCom/~3/PVkcaQUXwnM/third-party-retaliation-zone-o.html http://www.newmexicoemploymentattorneyblog.com/2011/08/third-party-retaliation-zone-o.html Employment Discrimination Retaliation Title VII Employment Discrimination Tue, 09 Aug 2011 10:01:06 -0700 http://www.newmexicoemploymentattorneyblog.com/2011/08/third-party-retaliation-zone-o.html