Listen to Steve Wolfe on The Bert Show

The Bert Show discussed workplace, breastfeeding mothers and the law with Steve Wolfe. This is a two part series that addresses one educator’s concerns about restrictions at work, the ability to pump milk while working and the impact the school’s decision is having on her family and her health.

Select Pt 2 Her Boss Refuses to Let Her Pump at Work

What to Say About Breast Cancer in the Workplace

While the end of October does invite a celebration of all things spooky, it also draws to a close a month of awareness for those who are living with, who have passed from, and who survived breast cancer. About 12% of U.S. women will develop invasive breast cancer in their lifetime, as well as 1 in 883 men.

Living with breast cancer presents unique challenges and difficulties. From doctors’ appointments to chemotherapy to surgery, breast cancer patients must navigate varying obstacles on their road to recovery. Unfortunately, sometimes additional hurdles may be present in the workplace. Taking time off for health-related reasons can sometimes feel like a minefield. The good news is that the Americans with Disabilities Act “ADA” and the Family Medical Leave Act “FMLA” both provide protection to individuals living with breast cancer and can help them to determine whether to tell, who to tell, and what to tell.

Should I tell my employer about my breast cancer?

Though the ADA and FMLA offer job protection to those individuals who inform their employers of their diagnosis, there is no law that mandates that any person disclose whether they have breast cancer. At its core, this is a very personal question that any individual should discuss with their doctor, their family, and any other people they trust.

ADA Protections

If an individual discloses their breast cancer diagnosis to their employer, the ADA protects them from adverse actions based on their diagnosis. Due to the broad definition of “disability” under the act, breast cancer qualifies when it “substantially limits” at least one “major life activity.” Therefore, if an employer knows of an employee’s breast cancer, it cannot terminate, discipline, or deny specific benefits to the employee, amongst a host of other negative actions, based on the breast cancer alone. In fact, the ADA requires the employer to make reasonable accommodations, which will vary based on the severity of the breast cancer and the capabilities of the company. These accommodations can take diverse shapes and sizes and can be suggested by the employee and the employer alike.

The ADA also provides protections to employees whose employer regards them as disabled or incapable of performing their work.  For example, as Legare, Attwood & Wolfe’s Cheryl Legare recently argued in Lew

is v. City of Union City, if an employee is placed on administrative leave and forbidden from returning to work until they are released by a doctor, they may have been regarded as disabled.

FMLA Protections

An employee has the option to take FMLA, which is medical leave provided by an Act of Congress. FMLA can be somewhat trickier than the ADA in that it only applies to specific employees, which you can read more about here. Essentially, an employee must have worked for their most recent employer for one year and the employer must have at least 50 employees under their control. The employee must also provide as much notice as practical based on their need. This notice often will serve to disclose the employee’s diagnosis. A qualifying employee is entitled to 12 workweeks per year and can take them continuously or intermittently based on need. Once the employee exercises their rights under the FMLA, they are protected from discrimination and must be restored to their original position or an equivalent position.

Who should I tell?

If an employee does decide to disclose their breast cancer, their first step should be to look at their employee handbook or manual. Many companies have policies related to the ADA and the FMLA and their handbooks can often provide insight on who to speak with and whether there are forms to fill out. If the handbook is unavailable or unclear, a great place to start is Human Resources.

Once an employee decides to take affirmative steps to disclose their breast cancer and obtain medical leave or accommodations of some sort, the employee should do their best to leave a record of their requests and disclosures. This record can be helpful if something goes wrong along the way.

What should I say?

Depending on what relief the employee is looking for, they may not have much discretion on what they can disclose. For example, the United States Department of Labor provides a specific form that must be filled out by employees seeking FMLA leave. However, if an employee is looking for accommodations, there is no magic requisite language. Instead, the employee’s best bet is to be up front and ask the employer for what they need.

At the end of the day, there is no “right” way to tell an employer about breast cancer. No matter the relationship, the discussion can be difficult and uncomfortable. If an employee is going to disclose their diagnosis, the best thing they can do is be honest.

If you have questions or are concerned that you may be facing discrimination due to breast cancer at your workplace, give the attorneys at Legare, Attwood & Wolfe a call 470-823-4000.

 

 

Does the US Women’s Soccer Team have an Equal Pay claim?

On Sunday, July 7, 2019, the United States Women’s National Soccer Team won their fourth World Cup. Unfortunately, the celebrations are tempered by one tiny detail: female soccer players still are not making as much as their male counterparts. Thus, alongside the U-S-A chants, fans were also shouting “Equal Pay.”

Though the United States Women’s National Soccer Team (“USWNT”) is ranked No. 1 in the world and has won both four World Cups and four Olympic Gold medals, female soccer players are earning only 89% of what of what their male counterparts make, according to the Washington Post. Within that same article, the Post explains that in terms of the World Cup, the women’s team will earn about $30 million if they win; whereas the men would earn $38 million per player.

On March 8, 2019, members of the USWNT filed a lawsuit against the United States Soccer Federation (“USSF”) for violations of the Equal Pay Act and Title VII of the Civil Rights Act, which both protect employees from gender-based discrimination in pay and in terms of employment. The complaint alleges, among other things, that:

  • The women’s team played 19 more games than the men’s team between 2015 through 2018;
  • The women’s team earns more in profit and/or revenue than the men’s team;
  • The women’s team is subject to equal, if not more strenuous, demands as the men’s team and must adhere to the same rules of the game, including field size, ball size, duration, and penalties; and yet
  • The women’s team is making less money than the men’s team.

Shockingly, the complaint alleges that:

In response to the WNT players’ demand for equal pay in 2016, a representative of the USSF admitted that the USSF has and will continue to have a practice of gender-based pay discrimination. The representative pronounced, “market realities are such that the women do not deserve to be paid equally to the men.”

The Gender Pay Gap Affects Every Career Field

Though the USWNT is leading the charge for pay equality, the disparities affect all women across all fields. According to the American Association of University Women, on average, a woman makes only 80% of what an equally situated man makes. This figure is worse for women of color, with black women earning only 61% and Hispanic and Latina women making only 53%. Interestingly, women with increased levels of education are more likely to be affected by wage disparities, with secondary degree recipients earning only 74% of what their male colleagues make, on average. By the AAUW’s figures, pay equity will not be achieved until 2059.

So, what can be done to fix pay gaps now?

The USWNT is on the right track. If a woman finds herself being paid less than her male counterparts, she has the option to bring suit against her employer under the Equal Pay Act or Title VII of the Civil Rights Act. Though the goals of the Acts are similar in that both aim to prevent discrimination, their applications vary somewhat.

Under the Equal Pay Act, 29 U.S.C. § 206(d), an employee must show that (1) an employer paid different wages to employees of different genders (2) for equal work on jobs requiring equal skill, effort, and responsibilities and (3) these jobs are performed under similar working conditions. The “equal work” requirement can be difficult to meet. For example, in the USWNT complaint, many factual allegations are centered on showing that the women’s team is forced to meet the same training and conditioning requirements as the men’s team and that they are subject to the same standards imposed by the USSF. If the judge finds that the USWNT is not performing equal work, then an Equal Pay Act claim will fail.

However, even if the Equal Pay Act claim fails, the USWNT members can rely on Title VII, 42 U.S.C. § 2000e, which does not have an “equal work” requirement. Instead, the employee must establish that she, as a woman, is not being paid equally for similar work. As a trade-off for this relaxed standard, though, the employee must show that the employer intended to discriminate. The comment by the USSF official stating that, “market realities are such that the women do not deserve to be paid equally to the men,” could be an example of such intent.

If you feel that you and/or your coworkers are being denied equal pay, please contact the attorneys at Legare, Attwood & Wolfe at 470-823-4000.

 

Can I get overtime?

Legare, Attwood, & Wolfe’s Steven Wolfe, along with co-counsel Justin Scott of Scott Employment Law, P.C., settled overtime wage claims against a Fortune 500 Company located in Atlanta. They filed suit in federal court under the Fair Labor Standards Act on behalf of two of the company’s former recruiters. The lawsuit accused the company of mischaracterizing these recruiters as “non-employee workers” and “contractors” to avoid paying them overtime wages.

Photo by Daniel Chekalov licensed by Unsplash

The Fair Labor Standards Act (FLSA) is the federal law that provides certain employees the legal right to overtime pay when they work more than 40 hours per week. To be covered by the FLSA, you must be an employee of your company. More and more, employers label their workers “independent contractors” or “non-employees” to avoid paying them overtime, even though these workers do the jobs of regular employees and work long hours.

But, whether you are an employee under the law is a question of your actual working relationship with the company, not the label the company places on you or even the contracts the company has you sign.

Am I covered by the FLSA?

Nearly every employer is covered by the broad provisions of the FLSA, and the FLSA begins with an equally expansive definition of employee: any individual employed by an employer. However, this definition excludes independent contractors, or “non-employees.”

Am I an employee or an independent contractor?

Independent contractor status depends on the “economic reality” of the situation. Simply labeling an employee an independent contractor does not make it so under the law. If you depend on the company for your economic livelihood, you are likely an employee under the law. On the other hand, if you are economically independent from the company – if you have a business of your own – then you are likely an independent contractor.

To gauge the economic reality of a worker’s relationship with a company, courts assess six factors:

  1. The extent of the employer’s control over the individual
  2. The individual’s opportunity for profit and loss with the employer based on his or her managerial skill
  3. The individual’s Investments in the materials and equipment he or she needs for the job
  4. How much Special skill is required for the job
  5. The Permanency of the relationship between the employer and employee
  6. How important the individual’s work is to the company

These factors are weighed against each other and will vary on a case by case basis. As a general rule, the more involvement the employer has with the individual, the more likely it is that the individual is an employee and NOT an independent contractor. For example, satellite technicians in Amponsah v. DirecTV, LLC in the Northern District of Georgia were not necessarily independent contractors even though the technicians drove their own cars, provided their own tools, and brought significant experience from their prior jobs and trainings. This decision echoed the 11th Circuit’s leading decision on the matter in Scantland v. Jeffry Knight, Inc. in 2013.

If you feel that you and/or your coworkers are wrongfully being denied overtime, please contact the attorneys at Legare, Attwood & Wolfe at 470-823-4000.

 

Can Men Take Parental Leave

Untitled by Szilvia Basso licensed by Unsplash.

Happy Father’s Day!

Whether it’s your first year as a father, or you’ve been enjoying fatherhood for quite a while, today we celebrate you.

It should come as no surprise that fathers play an important role in the development of their children. What may surprise you, though, is that the advantages of a father’s engagement with their infant can be quantified: even one extra day per month of interaction with a father translates to healthier babies.

However, getting the time in can be hard for working fathers. According to the Bureau of Labor Statistics, 96% of employed fathers worked full-time in 2018 regardless of the age of their children. Unfortunately, the Bureau reports that only 19% of full-time American workers have access to Paid Family Leave.

While paid paternity leave is still in its infancy, so to speak, there are unpaid, federally mandated leave options available to new fathers.

How do you use the FMLA?

Time Limits

The Family Medical Leave Act provides 12 workweeks’ worth of unpaid leave for eligible employees during a 12-month period. It expressly provides that those 12 weeks can be used for the birth or placement of a child, either for adoption or foster care or for bonding with your child until one year of age or up to one year after placement. If your employer already provides a specific amount of unpaid leave days, then the FMLA supplements extra days to reach a 12-week period. Alternatively, if your employer already provides a specific amount of paid leave days, you can utilize those paid days as part of your FMLA coverage and the 12 weeks will be reduced by any paid time you take. However, the FMLA does not require your employer to provide paid leave other than what they already would give.

Be aware that the FMLA also has a provision that prevents double utilization from spouses that work for the same employer. If you and your spouse both work for a certain company, your company may permissibly limit your total number of workweeks to 12 instead of 24.

Eligibility Requirements

You must meet some minimum requirements to be eligible for FMLA. First, you must have worked for your current employer for at least 12 months and for at least 1,250 hours during the preceding 12-month period before your request for FMLA. For example, if you’ve worked at XYZ Company for 5 years and you now want to request FMLA, you need to have worked 1,250 hours during your most recent annual period to be eligible.

Your company must also employ at least 50 employees within a 75-mile radius. So, if your employer only has one site that employs 30 individuals, you will not be covered. However, if there is a second site 15 miles away that has another 30 individuals then you will be covered.

Notice Requirements

If you’re planning on having a child, either by birth, adoption, or foster care, it is imperative that you give your employer no less than 30 days’ notice before the date of leave is to begin.  

Returning from FMLA

When you return from FMLA, it is mandated that your employer restore you to either the position you held when your leave began, or to an equivalent position with equivalent benefits, pay, and other relevant conditions. There are exemptions to this rule for highly paid employees within the top 10% of their company’s salary range.

What if something goes wrong with my FMLA leave?

Unfortunately, employers don’t always get it right when it comes to the FMLA and they engage in some illegal act constituting interference or retaliation. Sometimes, their error is they interfere with your ability to use FMLA. Employers cannot restrain or deny an eligible employee’s ability either to take leave under the FMLA or to be reinstated to their position upon their return. They even can be liable even if they don’t intend to interfere, as pointed out by the Northern District of Georgia in Gutter v. GuideOne Mut. Ins. Co. in 2014.

An employer can also violate the FMLA if they retaliate against an employee who has taken FMLA leave or who has complained about FMLA violations. Retaliation does require intentional discrimination. An employer who terminates or disciplines an employee for using FMLA-provided rights is liable to the employee if the employee can show a discriminatory motive.

If either of these instances sound familiar to you, please reach out to the attorneys at Legare, Attwood & Wolfe 470-823-4000 whose practice is dedicated to helping workers like you.

Cheryl Legare Wraps Up Year as President of the Georgia Association of Women Lawyers

 

Outgoing GAWL president Cheryl Legare welcomes GAWL’s new president, Christina Baugh and president-elect Veronica Higgs Cope on board.

 

 

 

On May 9, 2019 Legare, Attwood & Wolfe partner Cheryl Legare completed her year serving as the Georgia Association of Women Lawyers as the organization’s president and welcomed Christina Baugh as GAWL’s 2019 – 2020 president and Veronica Higgs Cope as president-elect.

Cheryl has been an active member of GAWL since graduating law school in 2002.  In addition to her recent functions as GAWL president, Cheryl served on its Foundation Council and was the Foundation President from 2007 – 2008.  Over her years as a GAWL member, Cheryl has held Co-Chair positions on the Mentoring Initiative (2008-2009), the Scholarship Committee (2009-2010), and the Solo/Small Firm Affinity Group (2013 – present).  She was VP of Programs from 2006-2011, the VP of Public Affairs (2014-2015) and VP of Mentoring (2015-2016).

 

 

 

Super Lawyers 2019

Cheryl Legare, Eleanor Attwood & Steve Wolfe have once again been selected to the 2019 Georgia Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this distinction.  Cheryl Legare and Eleanor Attwood were also honored with inclusion in the Top 50: 2019 Women Georgia Super Lawyers list.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

LAW Co-Sponsors Multi-City Continuing Legal Education Series

Beginning January 25, 2019 in Macon, Georgia, Legare, Attwood & Wolfe, along with the State Bar of Georgia and Veritext Legal Solutions will host a CLE to help fellow attorneys identify possible employment claims.  The program kicks off at the Sports Hall of Fame in Macon, Georgia on January 25th and will feature local attorneys Charlie Cox, Douglas Dean (of Lawson, Reid & Dean) and Mary Katz (of Chambless Higdon Richardson Katz & Griggs) along with the Honorable Marc T. Treadwell of the United State District Court, Middle District of Georgia.

Legare, Attwood & Wolfe and local practitioners will bring this series to Savannah, Columbus and Augusta in February and March.  For more information or to register:  State Bar of Georgia CLE Programs

 

The City of Atlanta Struggles

The City of Atlanta allegedly ignored the advice of its own legal team when managing allegations of sexual harassment. Eleanor Attwood’s client remains employed by the city, as does her alleged harasser.

Watch the video