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Responding to a Coworker’s Hate Speech

Responding to a Coworker’s Hate Speech

Speech and speech-like activities, like wearing slogans on clothing or hanging posters, can sometimes veer into uncomfortable territory at work. The idea of “hate speech” has been with us as a legal concept for more than two decades now. It doesn’t have a fixed definition in U.S. law. One way to define it is as any expression that is intended to call out a group or class of persons, such as members of a specific race or religious sect, for ridicule, humiliation, or hatred.

Although hate speech may be offensive, it is not, by itself, illegal. Last year the U.S. Supreme Court explained it this way: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” Matal v. Tam, 582 U.S. ___ (2017). In short, the First Amendment of the U.S. Constitution protects most speech from being regulated by the law.

Regulating hate speech is difficult in part because its definition is ambiguous. What kind of speech constitutes “inciting hatred” against a group? Can a member of a group incite hatred against his or her own group? Where does mere criticism, however harsh, end and hatred begin? Answering these questions is not easy, and to a certain degree their answers are left to the particular sensibilities of the listener.

That does not mean that offensive speech at work should go unchallenged. A critical first step is to notify a manager about the problem. There are several reasons why employers should take action to put a stop to hate speech among their workers:

  • Antidiscrimination laws. Hate speech can create a hostile work environment for people who are members of the targeted group. Hate speech that is frequent or severe enough, together with other facts, may expose the employer to questions about discriminatory practices. An employer has an obligation to take reasonable steps to prevent harassment in the workplace.
  • Emotional distress. Being verbally ridiculed or threatened at work can be emotional traumatizing. If the employer does not take steps to stop the bad behavior it may be facilitating the harm.
  • Preventing violence. Hate speech often has an inciteful character, intended to encourage violence or abuse and potentially inviting a similar reaction from people who are offended by it. Employers have a strong incentive to diffuse tensions between employees before they escalate into a more serious situation where people might get hurt.

The law firm of Greenman Goldberg Raby Martinez represents working people in the Las Vegas area in cases involving personal injury, discrimination, and other disputes. If you have questions about how to handle hate speech in your workplace call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Suing for Unpaid Wages in Nevada

Suing for Unpaid Wages in Nevada

Employers that don’t pay their employees the wages they have earned are unfortunately an all-too-common problem. Whether unpaid wages have been accrued through uncompensated overtime, violations of minimum wage requirements, or withheld tips, employers should not be allowed to get away with what amounts to theft. Workers who are victims of wage violations have legal recourse available.

Wage and hour laws are complicated, reflecting the many competing interests in the labor marketplace. One source of complexity is the interplay between state and federal laws. Both federal and state law set minimum wage and other basic labor standards. For many workers in Nevada, the provisions of Chapter 608 of the Nevada Revised Statutes will provide the first line of defense against wage theft.

Chapter 608 provides the framework for a wide range of wage and hour matters for most employers in Nevada. Here are some of the chapter’s provisions:

  • Employers cannot require employees to work without compensation during a “trial period.” NRS 608.016.
  • Employers cannot discriminate on the basis of sex to pay workers of one sex less than what is paid to workers of the other sex for the same work. NRS 608.017.
  • Eligible employees must be paid time-and-a-half for overtime (more than 40 hours per week or 8 hours per day for employees who work five days a week). NRS 608.018.
  • Employers must immediately pay unpaid wages and other accrued benefits to an employee who is fired. An employee who quits must be paid all accrued amounts within seven days or on the regular payday, whichever comes first. NRS 608.020, 608.030.
  • Employers are required to establish regular paydays. NRS 608.080.
  • Employers cannot require employees to refund earned wages or decrease compensation without at least seven days’ notice. NRS 608.100.
  • Employers must maintain detailed wage records. NRS 608.115.

An employee who has had wages unlawfully withheld or unpaid has a number of legal tools available. First, the law provides that employees who are fired or laid off obtain a lien against the employer’s property for unpaid wages until they are paid in full. NRS 608.050. Second, in the event of a successful lawsuit to recover unpaid wages the employer must pay the employee’s reasonable attorney fees. NRS 608.140. This second point is crucial: an employee need not hesitate to seek legal help for the recovery of wages solely out of concern about legal fees.

Finally, a worker can also file a complaint with the Nevada Labor Commissioner. The Commissioner has the authority to pursue administrative as well as criminal charges against employers who violate wage and hours laws. Bringing the authority of the state to bear against an employer who has acted in bad faith can be a powerful tool for recovering what is owed and preventing future violations.

The law firm of Greenman Goldberg Raby Martinez represents working people in the Las Vegas area. If you have questions about how to pursue unpaid wages we can help. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

What Can Employers Ask About Prior Workers’ Comp Claims?

A question that often comes up for workers who have filed workers’ compensation claims in the past is how those claims could affect their future job prospects. The concern is that employers want to avoid the expense of hiring a worker with injury risks or, worse, a history of filing fraudulent claims. They could potentially use a job applicant’s history of workers’ compensation claims to turn the applicant away. Fortunately, federal and state law provide specific limits on how Nevada employers can use a worker’s claims history.

Federal law prohibits disability discrimination

The federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., prohibits employment discrimination on the basis of an applicant’s or employee’s disability. According to guidance from the Equal Employment Opportunities Commission, under the ADA an employer can ask about a job applicant’s disability and prior workers’ compensation claims only after making an initial job offer. An employer also cannot lawfully obtain such information from third parties until after making the initial job offer. A job offer can lawfully be conditioned upon passing a medical examination. Employers are still permitted to require applicants to pass nonmedical agility or strength tests if they are necessary for the job, such as jobs in law enforcement. In each case, such screening must be given to every applicant in the same job category.

Not every work-related injury leads to a disability that is protected by the ADA. The ADA defines “disability” as a physical or mental impairment that substantially limits a major life activity, having a record of such an impairment, or being regarded as having such an impairment (for example, if an employer decides that an injury limits an employee’s ability to work, even if it doesn’t limit the employee’s day-to-day activities). Many workers’ compensation claims will arise from injuries that are not serious enough to meet this standard. On the one hand, this means that non-disability conditions might still come up in the course of a job application process. On the other hand, employers who probe an applicant’s medical history risk uncovering a protected disability before they are legally entitled to know about it.

When prior claims are uncovered, what then?

Once an employer learns about a new hire’s prior workers’ compensation claims, the ADA’s protections continue to apply. However, in some cases an employee’s claims history can be used to justify terminating an employment relationship for a reason other than disability. For example, the history may reveal that the employee has been dishonest during a medical examination. It may also reveal that the employee has filed numerous claims that were rejected, leading an employer to infer that the employee has a tendency to make false claims. In some cases, a history may uncover a condition that prevents the employee from safely doing the job.

Generally speaking, a scrupulous employer will be careful about basing hiring decisions on someone’s workers’ comp claims history. A claim of unlawful discrimination is a potentially expensive and time-consuming problem that is best avoided through well-designed screening practices. For employees, the important thing to remember is that the law limits how employers use workers’ medical information. But medical information can have nonmedical implications.

GGRM assists workers in the Las Vegas area

The law firm of Greenman Goldberg Raby Martinez has handled workers’ compensation cases in Las Vegas for more than 45 years. If you have questions about how your claims history might affect your future employment options, we are here to help. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

Same-Sex Marriage and Nevada Employment Law

Same-Sex Marriage and Nevada Employment Law

Nevada has given legal recognition to same-sex domestic partnerships since 2009, and same-sex marriages since 2014. The state’s recognition of same-sex marriages followed the ruling of the Ninth Circuit Court of Appeals in a landmark case that declared Nevada’s state Constitutional ban on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012), reversed and remanded sub nom. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014). Since July 1, 2017, the state’s marriage statute, NRS 122.001 et seq., has been gender-neutral, ensuring that same-sex marriages are given the same treatment as marriages between opposite-sex couples.

Employment discrimination is still a problem

Even though Nevada’s marriage laws explicitly authorize same-sex marriage, workplace discrimination on the basis of sexual orientation is still a problem. Nevada law gives people in same-sex marriages powerful legal tools for responding to an employer’s discriminatory behavior. Earlier this year, Senate Bill 188 added “gender identity or expression” and sexual orientation throughout the state’s anti-discrimination laws, including the employment discrimination law of NRS 613.330, giving them the same kinds of protections as religion, color, sex, race, disability, age, and national origin.

Although an employer still can base employment decisions on protected features where it is “a bona fide occupational qualification reasonably necessary to the normal operation” of the employer’s business, NRS 613.350, jobs that are reasonably predicated upon an employee’s sexual orientation or gender identity are likely to be vanishingly rare.

Employers must apply the same standards to all married people

An employee’s marriage status is notably absent from the protections in NRS 613.330, but it seems unlikely that an employer could successfully escape liability for discrimination by arguing that its decision to fire an employee was based on the employee’s decision to marry. To work, an employer would need to have a policy against all of its employees getting married. If such a rule only applied to LGBT employees, it probably would be unlawful.

And that is perhaps the most important legal protection that same-sex marriage now enjoys in the Nevada workplace. An employer’s policies and actions with respect to marriage cannot discriminate between different kinds of married couple on the basis of any protected feature. Same-sex couples enjoy the same right to work without discrimination as mixed-race couples, or couples from different religions.

An important distinction between same sex marriage and domestic partnerships

Nevada’s domestic partner law allows two people of any gender to enter into a civil union. Although domestic partners enjoy most of the legal benefits of marriage, the law specifically allows employers to not extend health care benefits to domestic partners of employees. NRS 122A.210. There is no equivalent law with respect to partners in a same-sex marriage. In fact, insurers are prohibited from discriminating against lawfully married same-sex couples, and must offer them the same coverage as are offered to opposite-sex couples.

We are ready to help Las Vegas employees protect their rights

At GGRM we believe that all Nevadans deserve equal treatment, and that workers who suffer from unlawful discrimination should be compensated for the hardships they endure. If you would like to speak to an attorney about how Nevada’s laws protect employees who are in same-sex marriages, call us today at 702-388-4476, or send us a request through our contact page.

How the EEOC Protects the Rights of Nevada Employees

How the EEOC Protects the Rights of Nevada Employees

The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws against numerous kinds of employment discrimination. The Commission’s authority covers most employers with 15 or more employees (or 20 or more, in the case of age discrimination). When an employer is charged with unlawful discriminatory practices, the EEOC conducts an investigation and, if the problem is unresolved, can file lawsuits to protect the rights of affected workers. In other words, the EEOC is a powerful ally of people who face discrimination in the workplace.

The EEOC enforces a wide range of federal anti-discrimination laws

The EEOC’s purpose is to enforce federal laws and regulations that prohibit various types of workplace discrimination. These include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and Title I of the Americans with Disabilities Act of 1990 (ADA), among numerous others. All together, the EEOC’s responsibilities extend to preventing, investigating, and prosecuting employment discrimination on the basis of a person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.

The EEOC’s scope covers a broad range of employment situations. Decisions about hiring and firing are covered, as are decisions affecting promotion, wages, training, and benefits. Harassment and anti-retaliation also fall under the EEOC’s purview.

In an EEOC case, the details matter

Because the EEOC derives its authority from a range of different sources of law, the rules governing each specific protected category can vary. Here are a few examples of how specific the rules can be:

  • Under the ADA, employers must make reasonable accommodations for an employee’s known disability, to allow the employee to perform the essential functions of his or her job.
  • The ADEA prohibits the inclusion of age preferences, limitations, or specifications in job advertisements.
  • The Pregnancy Discrimination Act prohibits a wide range of employment-related decisions due to an employee’s pregnancy or pregnancy-related conditions. For example, an employer can’t require an employee to be away from work for a certain period of time after giving birth.

Getting more information, and asking for help

The EEOC website provides useful fact sheets about the specific kinds of discrimination it works against. It also allows employees who feel they have been wrongly discriminated against to begin the formal process of bringing a charge of discrimination against the employer. Before taking this step, it’s important for the employee to understand that the EEOC’s process can have an affect on his or her rights.

It’s often a good idea to consult with an experienced employment attorney before beginning an EEOC action, to make sure not only that the EEOC is the right path forward, but also that the process is conducted in a way that gives the best possible chance of success. At GGRM we have a long and proud history of helping clients protect their rights. If you are looking for help with an EEOC claim and would like to talk to an attorney, give us a call at 702-388-4476, or contact us through our website.

Nevada Expands Employment Protections for Domestic Violence Victims

Nevada Expands Employment Protections for Domestic Violence Victims

Earlier this year Nevada enacted new employment protections for victims of domestic violence. Senate Bill 361, which goes into full effect on January 1, 2018, protects employees who are affected by domestic violence in a number of significant ways.

New leave requirement

Starting on January 1, Nevada employers will be required to provide leave to employees who have been employed for at least 90 days and are victims of domestic violence, or who have family or household members who are victims of domestic violence. “Domestic violence” includes a wide range of violent or threatening behavior against a family or household member, including battery, assault, compelling actions by force or threat of force, sexual assault, false imprisonment, unlawful entry, or harassing behavior, such as stalking, trespassing, arson, carrying a concealed weapon without a permit, destruction of private property, or injuring or killing an animal. NRS 33.018.

Eligible employees may take up to 160 hours of leave, consecutively or intermittently, within 12 months following the date on which the domestic violence occurred. Employers can decide if the leave will be paid or unpaid. Note that employees who are allegedly the perpetrators of domestic violence are not eligible for leave.

The employee can use his or her leave under the law only for the following specified activities related to an act of domestic violence against the employee or family or household member of the employee:

  • For the diagnosis, care, or treatment of a related health condition.
  • To obtain counseling or assistance.
  • To participate in any related court proceedings.
  • To establish a safety plan to protect against future acts of domestic violence.

If the reason for the leave would also qualify under the federal Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., it must be deducted from the amount of leave to which the employee is entitled under that law.

Employer rights and obligations

SB361 prohibits employers from taking certain actions. Employers are not allowed to deny an eligible employee’s right to use hours of leave that meet the law’s criteria. Nor can an employer require an employee to find a replacement worker as a condition of taking leave, or retaliate against the employee for using hours of leave.

In addition to permitting leave, at the request of an employee who is the victim of domestic violence, or has a family or household member who is the victim of domestic violence, employers must also provide reasonable accommodations, such as transfers, modified schedules, changed work phone numbers, or other steps designed to ensure the employee’s safety. Employers must provide requested accommodations so long as they are reasonable and do not pose an undue burden on the employer or its business.

When an employee takes leave, the employer is required to keep a record of the number of hours of leave taken for a minimum of two years. Such records need to be kept confidential, though the Nevada Labor Commissioner can request an inspection of records with employee names removed. The Commission also has the power to request identifiable records in connection with an investigation.

SB361 permits employers to require employees who wish to use leave or request accommodations under the Act to provide documentation to support the employee’s claims. The law provides these examples of potentially suitable documentation: a police report, a doctor’s report, a copy of an application for an order for protection, or an affidavit from an organization that helps victims.

GGRM can help

As a long-standing member of the Las Vegas community, GGRM is committed to helping clients get through the challenges associated with domestic violence. Whether you are an employer wondering how to best comply with the new rules, or an employee who needs help getting the leave you need, our attorneys can help. For a free consultation with an attorney, give us a call at 702-388-4476, or visit our website.