Kim Ryan Talks Law

Colorado Courts Offer Free Interpreter Services

2011-07-05T15:14:00.000-07:00

The Justice Department announced last week that it has reached an agreement with Colorado State Judicial officials to ensure that limited English-proficient individuals will have free access to timely and competent language assistance when seeking services in state courts. Accordingly, Chief Justice Bender has issued a comprehensive Directive that provides for the services in all criminal and civil proceedings, as well as court operations. Read more here.

Employers and Medical Marijuana

2010-07-26T19:23:00.000-07:00

Employers should follow the lead of the federal Veteran's Administration.

This month the VA announced that it will draw a "clear distinction between the use of illegal drugs and legal medical marijuana."

The VA will not penalize medical marijuana patients who are treating validly under their states' laws.

Similarly, employers should revise their workplace drug policies to make a clear distinction between the use of legal medical marijuana and illegal drugs with no legitimate medical purposes. They should distinguish between treatments and abuse.

Some managers are being forced by corporate headquarters to fire workers who treat at home with medical marijuana, when they know that these workers have been stellar performers with absolutely no problems at work.

Employers are losing valuable employees because of their outdated "zero tolerance" drug policies that fail to account for legitimate medical treatments.

These unenlightened policies are based on false information from outdated stereotypes of medical marijuana that ignored the scientific proof that marijuana is safe and beneficial and treats a multitude of illnesses and pain.

Recent studies confirm that marijuana is a safer alternative to some of the pharmaceuticals that produce horrific side effects, often far worse than the original disease. Yet some employers are stuck in the old mentality that falsely lumped medical marijuana in with narcotics as an unsafe treatment, or worse yet, just a drug to be abused.

It is unethical to deprive patients of very beneficial medical treatments based on the fear of abuse. Any drug can be abused. Would it be logical to deprive people of prescription medications since they can be abused? Would it be right to deprive them of their jobs?

Employers can step up now and follow the lead of the VA in recognizing the difference between state-sanctioned medical marijuana treatments and illicit drugs. State-sanctioned medical marijuana should be treated as other medical treatments, and should not be used to deprive good workers of their livelihoods.

Veterans Administration Recognizes Legal Medical Marijuana

2010-07-22T19:48:00.000-07:00

The federal Veteran's Administration will not penalize Veterans for using medical marijuana by depriving them of other necessary medicines, according to a July letter issued by the US Department of Veteran Affairs Under Secretary for Health Robert Petzel, M.D.

Testing positive for marijuana would not preclude a Veteran from receiving other medications for pain management in a Department of Veterans Affairs (VA) facility, if a Veteran obtains and uses medical marijuana in a manner consistent with state law.

The authorized use of medical marijuana should not be defined as "illegal drug use," according to the VA Under Secretary.

"Standard pain management agreements should draw a clear distinction between the use of illegal drugs, and legal medical marijuana," says Under Secretary Pelzel.

The VA further instructs that the individual health care provider retains the discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana. The health care provider has the authority to determine the medications on clinical grounds.

The Veteran would need to inform his provider of the use of medical marijuana, and of any other non-VA prescribed medications he or she is taking to ensure that all medications, including opioids, are prescribed in a safe manner, according to Under Secretary Dr. Pelzel.

The provider will take the use of medical marijuana into account in all prescribing decisions, just as the provider would for any other medication, according to the VA.

"This is a case-by-case decision, based upon the provider's judgment, and the needs of the patient."

The VA is right - medical marijuana patients should not be treated as criminals, nor should they be deprived of their medically necessary treatments.

This guidance is important because it reaffirms that at least one administration within the federal government recognizes that medical marijuana, when used validly under state law, is a medical decision best left to the physician and the patient and should not be treated as a criminal matter. It is a health care decision.

Colorado Constitutional Rights to Medical Marijuana

2010-06-02T11:55:00.001-07:00

The Colorado Constitution provides positive rights to citizens, which include affirmative defenses to prosecution under state laws for qualified use of medical marijuana. The rights guaranteed by the Colorado Constitution are much more expansive than just affirmative defenses, as I read the Constitution.

The Colorado Constitution guarantees positive rights to medical marijuana by providing the following rights:

1. Right to medical use of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

2. Right to acquisition of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

3. Right to possession of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

4. Right to production of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

5. Right to transportation of marijuana by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

6. Right to medical use of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

7. Right to acquisition of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

8. Right to production of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

9. Right to transportation of marijuana paraphernalia by qualified patients. COLO. CONST. art XVIII, § 14, 4(a), 1(b)

10. Rights to possess, acquire, possess, produce, transport up to 2 ounces of marijuana by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

11. Rights to possess, acquire, possess, produce, transport up to 6 plants by qualified patient. COLO. CONST. art XVIII, § 14, 4(a)

12. Right to acquisition of marijuana paraphernalia by caregivers for patients under the age of 18. COLO. CONST. art XVIII, § 14, 6; 6(i)

13. Right to protection of physician rights or privileges for acts authorized by Constitution. COLO. CONST. art XVIII, § 14, 2(c)

14. Right of physicians to advise a patient about risks and benefits of use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

15. Right of physicians to advise a patient that she might benefit from medical use of medical marijuana. COLO. CONST. art XVIII, § 14, 2(c)(by affirmative defense)

16. Rights of physicians to provide medical documentation to patient for acquisition of medical registry card. COLO. CONST. art XVIII, § 14, 2(c); 2(b)(1); 3(1)

17. Rights to protections for property interests of ANYONE AFFECTED for property seized by law enforcement. COLO. CONST. art XVIII, § 14, 2(e)

18. Rights to immediate return of patient or caregiver property after seizure upon described conditions. COLO. CONST. art XVIII, § 14, 2(e)

19. Right to assert affirmative defense for qualified patients from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(b)

20. Right to assert affirmative defense for physicians from prosecution under state drug laws. COLO. CONST. art XVIII, § 14, 2(c)

21. Right to confidential registry maintained by state health agency. COLO. CONST. art XVIII, § 14, 3

22. Right to participation in Colorado Medical Marijuana Registry program. COLO. CONST. art XVIII, § 14, 3(c), 8(9)

23. Right to obtain registry ID Card from state health agency on demonstration of qualification. COLO. CONST. art XVIII, § 14, 3(c)

24. Right to timely action by state health agency. COLO. CONST. art XVIII, § 14, 3(d)

25. Right of citizens to automatic participation in Medical Marijuana Registry on expiration of 35 days of application in absence of notification of denial of application. COLO. CONST. art XVIII, § 14, 3(d)

26. Right of primary caregiver to control acquisition of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

27. Right of primary caregiver to control frequency of use of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

28. Right of primary caregiver to control dosage of marijuana for patients under 18. COLO. CONST. art XVIII, § 14, 6(i)

29. Right of patients to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

30. Right of physicians to petition state health agency to add other debilitating conditions. COLO. CONST. art XVIII, § 14, (9)

31. Implied rights to accommodation of medical use of marijuana outside of the workplace. COLO. CONST. art XVIII, § 14, 10(c)

Additional rights affirmatively granted to primary caregivers via affirmative defense:

32. Right of primacy care-giver to engage in medical use of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f)

33. Right of primary care-giver to assist in acquisition of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

34. Right of primary care-giver to assist in possession of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

35. Right of primary caregiver to assist in production of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

36. Right of primary caregiver to assist in transportation of marijuana. COLO. CONST. art XVIII, § 14,2(b) and 1(b), 1(f).

37. Right of primary caregiver to assert an affirmative defense to prosecution. COLO. CONST. art XVIII, § 14, 2(b).

This makes Colorado unique among the states passing medical marijuana statutes.

These are Constitutional rights.

Marijuana use remains illegal under federal law.

This is provided for educational and informational use only and does not constitute legal advice in any particular situation. Every circumstance is different. If you have questions about your particular situation, you may wish to consider retaining legal counsel.

Fired for Blogging?

2010-04-20T02:22:00.001-07:00

Q. Can I be fired for blogging?

A. It depends. Here's an article from a segment I did for 9News a while back. It's still informative. But the law is ever evolving . . .

Fired for Medical Marijuana?

2010-04-11T18:48:00.000-07:00

Q. Does Colorado law allow employers to fire workers because they have medical marijuana licenses?

A. The Colorado Constitution allows qualified patients to have access to marijuana for medical purposes. In 2000, Colorado voters approved Amendment 20 which allows patients suffering from cancer, multiple sclerosis, HIV/AIDS, severe pain, and other serious debilitating conditions to use marijuana to treat their illnesses.

A federal anti-discrimination law, the Americans With Disabilities Act, prohibits covered employers from discriminating against qualified individuals with disabilities. At the same time, Colorado statutes generally prohibit employers from firing workers for engaging in legal off-duty conduct and from discriminating against workers with disabilities without attempting to reasonably accommodate them. Civil rights lawyers will be litigating the scope of the protections offered to medical marijuana patients and will be arguing that these laws provide protections, despite the federal ban on marijuana generally. At the same time, they will argue that the Colorado Constitutional protections should be honored and that the federal Controlled Substances Act violates the States' rights to determine this issue for themselves.

Colorado voters have expressed a strong public policy protecting the rights of medical marijuana patients, so fired workers may also have claims for wrongful discharge in violation of public policy. The federal drug law states that possession of marijuana is illegal under that law, however there is a serious debate as to its relevance to the discussion of employment rights, when employers have independent duties to comply with other more specific federal and state anti-discrimination laws that apply to them directly.

If you have been fired for having a medical marijuana card, you should seek legal counsel, since there are many laws that are implicated, and the analysis can be quite complex. Several factors will need to be considered to determine whether you might have valid legal claims. There are deadlines to file certain claims, so the earlier you seek legal counsel, the better.

Do you think medical marijuana patients should be forced to choose between their medical treatments and their jobs? What about patients taking other kinds of pain medications? Should the protections be the same?

Eligible for COBRA premium reduction?

2010-02-23T07:25:00.000-08:00

Q: I was recently laid off. How can I tell if I am eligible for the COBRA premium reduction?

A. Federal law makes the COBRA premium reduction available for "assistance eligible individuals."

An Assistance Eligible Individual is a COBRA qualified beneficiary who meets the following requirements:

1. Has a qualifying event for continuation coverage under COBRA that is the employee’s involuntary termination during the period beginning September 1, 2008 and ending February 28, 2010 ; and,

2. Elects continuation coverage timely.

Note: Those who are eligible for other group health coverage (such as a spouse's plan) or Medicare are not eligible for the premium reduction.

Source: http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html

When Profanity at Work Becomes Sexual Harassment

2010-02-20T22:00:00.000-08:00

"Bitch" is a Four-Letter Word. A federal court has ruled that when a co-worker calls a female employee a “bitch,” "whore" or "cunt," it is gender-derogatory. Sounds obvious, but some other courts have found that there was no federal sexual harassment violation if the workplace was also permeated with gender neutral profanity. This is an interesting case coming out of the Eleventh Circuit Court of Appeals, Reeves v. C.H. Robinson Worldwide, Inc., D. C. Docket No. 06-00358-CV-2-IPJ (Jan. 20, 2010).

Warning: Do not read this posting if you are sensitive to profane language.

The court deciding this case recited the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose.

The court explained that it does not repeat this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created an environment that a reasonable person would find hostile or abusive.

The Court's Recitation of the Facts as Reported by the Plaintiff

According to the court, the essential facts in this unedifying record are these. From July 2001 to March 2004, Ingrid Reeves worked as a transportation sales representative in the Birmingham, Alabama, branch of the shipping company C.H. Robinson.

She was responsible for sales and operations management for freight shipping. Among other duties, Reeves telephoned companies, set up sales appointments, and managed shipping freight from beginning to end. Her job was phone-intensive, requiring her to speak daily with carriers, truck drivers, customers, and dispatchers.

Reeves was the only woman working on the sales floor, an open area structured into a “pod” of cubicles, with six male co-workers. The only other female employee in the Birmingham branch worked in the same building, but in an area separate from Reeves’s “pod.”

Because there were no large barriers between the cubicles, Reeves could often hear the language of her male co-workers as they spoke over the phone or with each other. Reeves could also hear the central office radio that sat on a bookshelf near the “pod.”

Reeves had previously worked on a container ship and in the Merchant Marines, and was no stranger to the coarse language endemic to the transportation industry. In fact, Reeves herself used generic swear words, such as “shit” or “damn,” to express her frustration or anger.

Swearing Worse than Sailors

Nonetheless, she testified, there was language that her co-workers used at C.H. Robinson that was unusually offensive, even compared to the curse words she heard in the Merchant Marines. Much of this language, while incessant, vulgar, and generally offensive, was not gender-specific.

Throughout her tenure at C.H. Robinson, Reeves frequently heard generally indiscriminate vulgar language and discussions of sexual topics. Her co-workers, she claimed, regularly used curse words such as “fuck,” “fucker,” and “asshole.” They used the intensely offensive epithet “Jesus fucking Christ,” and the terms “fucking asshole,” “fucking jerk,” and “fucking idiot.” They also discussed sexual topics.

Women targeted for harassment

Reeves, however, also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace.

Her co- workers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Reeves’s co-worker Scott Gagliardi frequently shouted the epithets “fucking bitch” or “fucking whore” after hanging up his phone. He also called one woman a “cunt.” Indeed, Reeves’s supervisor, branch manager David Mitchell, often referred to his female colleagues by the term “bitch.” Among other examples offered, he ordered Reeves to speak with “that stupid bitch on line 4,” and described a former female colleague, Jackie Burt, as a “lazy, good-for-nothing bitch.” Gagliardi, in turn, concluded a joke with the punch-line “fuck your sister, and your mother is a whore.”

Crude radio shows and computer screen savers

Nearly every day, Reeves’s co-workers tuned the office radio to a crude morning show. Reeves claimed that this program featured, among other things, regular discussions of women’s anatomy, a graphic discussion of how women’s nipples harden in the cold, and conversations about the size of women’s breasts. It also once advertised a “perverse” bikini contest.

On one occasion, Reeves’s co- worker Darryl Harris displayed a pornographic image of a fully naked woman with her legs spread, exposing her vagina, on his computer screen. Her co-workers also regularly sang songs about gender-derogatory topics.

Reeves’s co-workers singled out Casey Snider, the only other female employee in the Birmingham branch, for gender-specific ridicule.

In Reeves’s earshot, albeit out of Snider’s presence, branch manager Mitchell insulted Snider, saying “[s]he may be a bitch, but she can read.”

Discussing women's body parts

Gagliardi also referred to Snider as a “bitch” after she had left the room to use the bathroom. Reeves’s co-workers openly discussed Snider’s buttocks. Mitchell commented that “[s]he’s got a big one,” and Gagliardi likewise said that “[s]he’s got a big ass.”

According to Reeves, this offensive conduct occurred “on a daily basis.” She testified that “if you were to pull out a calendar right now and I were to look at, you know, summer of 2001 to spring of ‘04, I could point at every day of the year that some of this behavior went on. It went on every day.”

She indicated that “this type of phrase, ‘You fucking whore,’ was commonplace.”

Objections to co-workers prove futile

Reeves testified that she objected frequently to the crude language, conduct, and radio station to her co-workers. Much of the time, she identified only a generally vulgar and offensive working environment. On occasion, however, she complained about gender-specific offensive behavior, too.

Thus, for example, when she heard offensive topics on the radio, Reeves would change the radio station, usually to the “classic rock station,” sometimes “twice in one day.” Reeves said that when her co-workers used generally offensive terms, she told them that their language was offensive, first orally and then by email.

Reeves’s co-workers’ offensive behavior allegedly persisted unabated. She testified: “It was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. . . . [N]othing would change.”

Indeed, on one occasion, apparently aware that their conduct offended her, Reeves’s co-worker Gagliardi shouted to her, “Ingrid, better wear your earplugs tomorrow,” so that a co-worker could behave “any way he liked” on his last day of work.

At least once, Reeves complained directly to a co-worker about his gender- specific offensive behavior. Reeves described confronting Darryl Harris when he displayed an explicit image of a naked woman exposing her vagina on his computer screen.

Reeves testified that she saw the picture as she walked by Harris’s desk from the copy machine.

Reeves recalled her reaction: “I was really offended by that. I was really upset. And it was very humiliating to me. And I just remember like my hands were like shaking. And . . . I knew I needed to say something to him because I felt that if I didn’t say something to him, then he would assume that it’s okay.”

Reeves said that she turned to Darryl and told him that she “saw that image [he] had on [his] computer. It really is offensive. It ma[de] [her] really uncomfortable.” Harris apologized.

Managers ignore complaints

Because her complaints to her co-workers proved futile, Reeves complained to her branch manager and supervisor, David Mitchell. Reeves explained, “[i]t was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. So by about this time, my focus was on upper management.” She thought that complaining to her branch manager was “reasonable because according to that sexual harassment sheet [of C.H. Robinson’s policy], it said this is who you’re supposed to talk to.”

Reeves recalled complaining to David Mitchell on at least five separate occasions. Again, Reeves complained about both non-gender-specific, but generally vulgar behavior, and gender-specific conduct, too.

On July 5, 2001, Reeves’s third day in the office, she first complained about Mitchell’s use of a vulgar reference to a woman. Mitchell had been speaking with a Japanese customer on the telephone. Reeves recalled listening to Mitchell’s frustration rising. He placed the call on hold, looked directly at Reeves, and told her to “talk to that stupid bitch on line 4.”

After Reeves spoke with the customer, she asked to speak with Mitchell in his office. In this one-on-one meeting, she explained that the language he had used made her “very uncomfortable.” He apologized, but offered that “this is just the way I am, and you will just have to learn to ignore it.”

In a later gender-derogatory incident, after Mitchell and Gagliardi commented on Snider’s buttocks, Reeves exclaimed, “I can’t believe you just said that.”

On February 1, 2002, Reeves complained about both gender-derogatory and indiscriminately sexual topics on the radio. After Reeves had brought her own radio to work to “drown out” the
offensive radio station and her co-workers’ language, her supervisor, Mitchell, emailed Reeves to ask her to stop playing her radio.

Reeves responded to Mitchell, in writing, to complain that, among other things, the radio station regularly broadcasted shows on topics such as the size of women’s breasts and “elderly people having sex.” She also told Mitchell that her co-workers discussed generally offensive subjects such as “naked women at a hotel.”

Although Mitchell promised that the office could switch to playing less offensive programming, two months later, when Reeves tried once again to turn down the offensive radio station, Mitchell asked her to “turn it back up a notch” so that he could listen.

Reeves formally complained about her co-workers’ offensive language in two separate work evaluations. Mitchell admitted that, although he had promised to “pay closer attention” to the language in the office, it “did not stop.”

Manager laughed and failed to report to corporate

He conceded that he never reported her complaints about the offensive language in the office to the corporate office, although it had been his responsibility to do so.

Mitchell testified that, as a manager, he had “special responsibilities” to “report any infractions or violations of [the sexual harassment policy] to [the] human resources department.” Indeed, he acknowledged that as a manager/supervisor, he was “responsible for establishing and maintaining a climate in the workplace that allows all employees to do their job effectively.”

Reeves testified that the offensive language and conduct continued unabated. Mitchell “laughed at” the offensive language, which Reeves claimed “just encouraged it.”

When complaints to Mitchell went unaddressed, Reeves contacted two C.H. Robinson executives, Director of Branch Operations Molly DuBois and Vice President Timothy Manning, to set up a meeting during the course of their June 2002 visit to evaluate the Birmingham branch.

Reeves explained it this way: “I had complained to my branch manager. I was fed up. Nothing was changing. So at that point, what was reasonable was to go above him, which I did.” Prior to the executives’ visit, Reeves spoke with Director DuBois over the telephone and complained generally to her about the “sexually offensive language and conversation in the office,” and the offensive radio talk show.

Although Vice President Manning had promised to meet with Reeves during his visit to Birmingham, he never met with her “one on one.” Reeves testified that she was “very disappointed” in the executives’ visit, because “they never, ever brought [the topic of the offensive conduct] up again with [her], and nothing ever changed. Everything in the office continued day after day after day.”

Intolerable conditions

Reeves resigned from her position at C.H. Robinson on March 24, 2004. On February 23, 2006, she filed a complaint against C.H. Robinson in the United States District Court for the Northern District of Alabama, alleging that she had been subjected to a hostile work environment in violation of Title VII.

First Court Dismisses the Case

The first court to hear the case dismissed it, holding that because the derogatory language in the office was not directed at her in particular and because the language was used and the radio program was played in the presence of all employees, “both men and women were afforded like treatment,” and Reeves was not “intentionally singled out for adverse treatment because of her sex.”

The Appeals Court Reinstates the Case

The Court of Appeals began by reiterating several core principles of employment discrimination law:

1. To prove a hostile work environment under federal law, a plaintiff must show that her employer discriminated because of her membership in a protected group, and that the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment;

2. Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment

3. Workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context; and

4. A plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.

Issue on Appeal

At issue on appeal was whether the conduct alleged to have pervaded C.H. Robinson created a hostile work environment that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed (disparate treatment).

Proving Hostile Work Environment

The court instructed that to prove a hostile work environment, the plaintiff must show:

(1) that he or she belongs to a protected group;

(2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature;

(3) that the harassment must have been based on the sex of the employee;

(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and

(5) a basis for holding the employer liable.

It also instructed that “workplace conduct is not measured in isolation.” Rather, the evidence of harassment is considered both cumulatively and in the totality of the circumstances.

Either severity or pervasiveness is sufficient to establish a violation of Title VII. In evaluating allegedly discriminatory conduct, the court considers its frequency, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances, according to the court.

Is the Profanity Severe or Pervasive?

The court indicated that “Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex.”

Further, a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct.

Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.

Gender Slurs v. General Profanity

When a co-worker calls a female employee a “bitch,” the word is gender-derogatory, according to the court. The court further observed that the terms “bitch” and “slut” are “more degrading to women than to men.”

The court cited the original definition of the term “bitch,” which is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002).

The term’s secondary meanings are likewise gender-specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.”

Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex, according to the court.

Thus, the court stated it was proceeding with “[c]ommon sense, and an appropriate sensitivity to social context,” to distinguish between general office vulgarity and the “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

"You Are a Bitch Too" Not Required to State a Claim

A final principle that guided the court in its decision is that words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.

It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men, according to the court.

Ignoring Complaints Leads to Liability

The court also ruled that a jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated.

A jury could find discrimination

According to the court, this evidence, measured against the aforementioned principles, is sufficient to afford the inference that the offending conduct was based on the sex of the employee.

A jury reasonably could find on this record that a meaningful portion of the allegedly offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender, and therefore may have created a discriminatorily abusive working environment.

The terms “whore,” “bitch,” and “cunt,” the vulgar discussions of women’s breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves’s gender.

Like “bitch,” “whore” is traditionally used to refer only to women. The dictionary defines “whore” in terms of gender as “a woman who practices unlawful sexual commerce.”

A reasonable juror could find that this gender-derogatory language and conduct exposed Reeves to “disadvantageous terms or conditions of employment.”

The court did not accord too much weight to the morning radio show. Like so much of the workplace conduct, the morning radio show, which Reeves compared to a Howard Stern show, also aired general, indiscriminate vulgarity and profanity.

Nevertheless, the court found that Reeves’s account of the contents of the show may be relevant in some ways: Reeves also claims to have repeatedly heard gender-specific, derogatory comments about women’s anatomy; the commentary may have been subjectively or objectively offensive; and the branch manager’s and co-workers’ refusal to respond to her repeated complaints may yield an inference about their intent to discriminate.

The court added that, while the F.M. broadcast station that featured the morning show is subject to F.C.C. controls for obscene language,the show’s commentary need not have been obscene to be considered sexual harassment.

Context important

The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically, according to the court.

The court also stated that it was not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints.

If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it, according to the court.

Employer's Arguments Failed

C.H. Robinson objected, claiming that there is no proof of gender animus because Reeves’s co-workers began to use gender-specific epithets before Ingrid Reeves arrived at the workplace.

Thus, C.H. Robinson argues that Reeves’s presence was irrelevant to the insults and, therefore, the conduct did not occur on account of her sex.

According to the court, this argument is inconsistent with the central premise of Title VII: workers are to be protected from discrimination on account of gender in the workplace.
considered as part of the Title VII calculus.

Humiliating Working Conditions

The court reasoned that Congress made a clear choice in enacting Title VII of the Civil Rights Act of 1964 “‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” The critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers’ employment were not. It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.

A question of intent

The court noted that at the end of the day, this is a question of intent, which, because intent may be difficult to discern, often requires recourse to circumstantial evidence.

The court was satisfied on this record that a jury could infer the necessary intent, and the jury should decide whether the law was violated.

"Bitch" is a Gender-Specific Slur

Finally, the court noted that C.H. Robinson suggests that Reeves’s co-workers used the terms “bitch” and “whore” to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific.

First, as for the term “bitch,” there may be a dispute of material fact about this matter.

While Mitchell specifically testified that he referred to men in the office by the term “bitch,” Reeves claimed never to have heard any male employee refer to another male as a “bitch.”

But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender.

It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace.

Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.

More than a rough environment

In short, if Reeves’s account is to be believed, C.H. Robinson’s workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed.

Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.

Case goes to trial

Accordingly, the court sent the case to a jury trial. It remains to be seen how the jury will rule.

How would you rule if you believed all of these allegations?

New I-9 Form

2009-08-31T07:25:00.000-07:00

Q. I own a small business and heard there is a new I-9 form for new hires. Where do I get one?

A. The updated version of the Form I-9, Employment Eligibility Verification, is now available here, on the website for the U.S. Citizenship and Immigration Services (USCIS). This form is dated Aug. 7, 2009 and will expire in 2012.

Classifying Workers - Tips for Business Owners

2009-08-29T07:36:00.000-07:00

Q. I own a small business and am confused about how to classify my workers. Are they employees or independent contractors? Is there any guidance?

A. Yes. You are not alone in your confusion. This is a complex area of the law with serious implications for both the company and the workers.

To get you started, you may want to check out guidance issued by the Internal Revenue Service last week.

Here's the link: Employee vs. Independent Contractor - Ten Tips for Business Owners.

Small Business Employment Training?

2009-08-18T09:18:00.000-07:00

Q. I own a small business in Colorado and am interested in learning more about what our company can do to prevent unlawful discrimination at work. Does the state offer any training for companies?

A. Yes. The State of Colorado's Civil Rights Division is offering a series of no-charge seminars in Denver and throughout Colorado. They offer seminars called Employment 101 and Sexual Harassment.

The next Employment 101 seminar will be held on October 5, 2009.

The next Sexual Harassment seminar will be held on October 6, 2009.

For more information and to register, visit the CCRD's Training Schedule here.

Deduct wages?

2009-08-15T07:17:00.000-07:00

Q: My employer is considering adopting a policy of imposing a 5% wage penalty for violations of company rules. Can employers do that?

A. If you live in Colorado, it may be a violation of the state law, depending on the circumstances.

Here's what a Colorado statute says about wage deductions:

8-4-105. Payroll deductions permitted.



		(1) No employer shall make a deduction from the wages or compensation of an employee except as follows:



		(a) Deductions mandated by or in accordance with local, state, or federal law including, but not limited to, deductions for taxes, "Federal Insurance Contributions Act" ("FICA") requirements, garnishments, or any other court-ordered deduction;



		(b) Deductions for loans, advances, goods or services, and equipment or property provided by an employer to an employee pursuant to a written agreement between such employer and employee, so long as it is enforceable and not in violation of law;



		(c) Any deduction necessary to cover the replacement cost of a shortage due to theft by an employee if a report has been filed with the proper law enforcement agency in connection with such theft pending a final adjudication by a court of competent jurisdiction; except that, if the accused employee is found not guilty in a court action or if criminal charges related to such theft are not filed against the accused employee within ninety days after the filing of the report with the proper law enforcement agency, or such charges are dismissed, the accused employee shall be entitled to recover any amount wrongfully withheld plus interest. In the event an employer acts without good faith, in addition to the amount wrongfully withheld and legally proven to be due, the accused employee may be awarded an amount not to exceed treble the amount wrongfully withheld. In any such action the prevailing party shall be entitled to reasonable costs related to the recovery of such amount including attorney fees and court costs.



		(d) Any deduction, not listed in paragraph (a), (b), or (c) of this subsection (1), which is authorized by an employee if such authorization is revocable including, but not limited to, deductions for hospitalization and medical insurance, other insurance, savings plans, stock purchases, voluntary pension plans, charities, and deposits to financial institutions;



		(e) A deduction for the amount of money or the value of property that the employee failed to properly pay or return to the employer in the case where a terminated employee was entrusted during his or her employment with the collection, disbursement, or handling of such money or property. The employer shall have ten calendar days after the termination of employment to audit and adjust the accounts and property value of any items entrusted to the employee before the employee's wages or compensation shall be paid as provided in section 8-4-109. This is an exception to the pay requirements in section 8-4-109. The penalty provided in section 8-4-109 shall apply only from the date of demand made after the expiration of the ten-day period allowed for payment of the employee's wages or compensation. If, upon such audit and adjustment of the accounts and property value of any items entrusted to the employee, it is found that any money or property entrusted to the employee by the employer has not been properly paid or returned the employer as provided by the terms of any agreement between the employer and the employee, the employee shall not be entitled to the benefit of payment pursuant to section 8-4-109, but the claim for unpaid wages or compensation of such employee shall be disposed of as provided for by this article.



		(2) Nothing in this section authorizes a deduction below the minimum wage applicable under the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq.

This law defines "employee" and "employer" as follows:

(4) "Employee" means any person, including a migratory laborer, performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed. For the purpose of this article, an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an "employee".



		(5) "Employer" means every person, firm, partnership, association, corporation, migratory field labor contractor or crew leader, receiver, or other officer of court in Colorado, and any agent or officer thereof, of the above mentioned classes, employing any person in Colorado; except that the provisions of this article shall not apply to the state or its agencies or entities, counties, cities and counties, municipal corporations, quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage conservation companies or districts organized and existing under the laws of Colorado.

You should consult legal counsel for an analysis of your particular situation.

Paid jury duty?

2009-07-02T05:55:00.000-07:00

Q. I have jury duty coming up and wonder whether my employer has to pay me? What does Colorado law say about paid jury duty?

A. The Colorado statute says:

All regularly employed trial or grand jurors shall be paid regular wages, but not to exceed fifty dollars per day unless by mutual agreement between the employee and employer, by their employers for the first three days of juror service or any part thereof. Regular employment shall include part-time, temporary, and casual employment if the employment hours may be determined by a schedule, custom, or practice established during the three-month period preceding the juror's term of service.

It also says, that after the first three days:

The state shall pay each trial or grand juror who serves more than three days for the fourth day of service and each day thereafter at the rate of fifty dollars per day. A trial or grand juror receiving payment under this section shall not be entitled to additional reimbursement for travel or other out-of-pocket expenses.

Source: C.R.S. 13-71-126; C.R.S. 13-71-129

Interfere with jury duty?

2009-07-01T05:55:00.000-07:00

Q. My boss doesn't want me to go to jury duty because of a big deadline we have on a project. What does Colorado law say about that?

A. Under Colorado law:

(1) An employer shall not deprive an employed juror of employment or any incidents or benefits thereof, nor shall an employer harass, threaten, or coerce an employee because the employee receives a juror summons, responds thereto, performs any obligation or election of juror service as a trial or grand juror, or exercises any right under any section of this article. An employer shall make no demands upon any employed juror which will substantially interfere with the effective performance of juror service. The employed juror may commence a civil action for such damages or injunctive relief or both, as may be appropriate, for a violation of this section. The court may award treble damages and reasonable attorney fees to the juror upon a finding of willful misconduct by the employer. Any trial of such an action shall be to the court without a jury.



		(2) Any employer who willfully violates this section commits willful harassment of a juror by an employer, as defined in section 18-8-614, C.R.S., which is a class 2 misdemeanor punishable as provided in section 18-1.3-501, C.R.S.



		Source: L. 89: Entire article R&RE, p. 772, § 1, effective January 1, 1990. L. 2002: (2) amended, p. 1489, § 126, effective October 1.

C.R.S. 13-71-134

Report discrimination at work?

2009-06-30T07:48:00.000-07:00

Q. Do I have a right to report harassment at work?

A. You have a right to complain about treatment that you believe is illegal job discrimination or harassment. According to the US Equal Employment Opportunity Commission, your employer cannot punish you, treat you differently or harass you if you report job discrimination or help someone else report job discrimination, even if it turns out the conduct was not illegal. The EEOC calls this your right to be protected from retaliation.

Source: US EEOC, Youth At Work

Career Paths for Youth Workers?

2009-05-29T04:44:00.000-07:00

Q. Do you know of any information for youth about different career paths?

A. Yes. Career Information for Kids from the Bureau of Labor Statistics (BLS) gives information about various careers and their educational requirements. It is written for a youth audience and includes information on careers based on interests, such as building and fixing things, music and arts, money, computers, nature, science, writing, law, helping people, and more. It includes pay statistics, ways to prepare, and projections for future trends. It's interesting for the young at heart and older folks too!

Teen Summer Job Safety Tips?

2009-05-28T04:44:00.000-07:00

Q. My teenager has his first job in a restaurant this summer. Do you know of any safety tips for youth summer jobs?

A. Yes. Many teens' first work experience is in the restaurant industry. Restaurants and other eating and drinking businesses employ 11.6 million people in the United States. Nearly 30% of these employees are under 20 years of age.

OSHA is providing an eTool to help youth working in the restaurant industry to be safe and healthy on the job. This eTool* describes common hazards and potential safety solutions for teen workers and employers in the restaurant industry.

It also provides safety tips for youth working construction jobs, landscaping, life guarding, parks & rec, and farm work.

Source: Occupational Safety and Health Administration

Part time or full time for WARN Act?

2009-05-27T05:55:00.000-07:00

Q. I think my company is getting ready to do a mass lay off. I understand I may have rights to receive a notice. How do I determine whether I am considered a part-time worker for the purposes of WARN?

A. If a plant closing or mass layoff occurs, part-time workers may be entitled to receive a WARN notice. Check out the Department of Labor's elaws Warn Advisor for more information on how to determine if you are a part-time worker and if the WARN Act applies to you.

When and what hours can young employees work?

2009-05-26T04:44:00.000-07:00

Q. When and what hours can young employees work?

A. Under the Fair Labor Standards Act (FLSA), the minimum age for employment in non-agricultural employment is 14.

The FLSA does not limit the number of hours or times of day for employees 16 years old and older.

Hours worked by 14- and 15-year-olds are limited to:

Non-school hours;

3 hours on a school day;

18 hours in a school week;

8 hours on a non-school day;

40 hours in a non-school week; and

Hours between 7 a.m. and 7 p.m., except from June 1 through Labor Day, when evening hours are extended to 9 p.m.

Youth 14 and 15 years old enrolled in an approved Work Experience and Career Exploration Program (WECEP) may be employed for up to 23 hours in school weeks and 3 hours on school days, including during school hours.

An example of a WECEP program description is as follows: A program for 14- and 15-year-old dropout-prone youth that combines paid work experience with career-oriented educational and motivational opportunities that encourage both completion of education and preparation for the world of work.

Hours standards that apply to minors employed in agriculture are described in the Fair Labor Standards Act Child Labor Bulletin for Agriculture.

However, many states have enacted child labor laws as well.

In situations where both the FLSA child labor provisions and state child labor laws apply, the more restrictive standard must be obeyed.

Source: OSHA, retrieved 5/21/09.

For more information on state labor laws, see the YouthRules! Home Page.

Related Links: U.S. Department of Labor: elaws®: FLSA-Child Labor Rules Advisor

Employment Standards Administration (ESA)/ Wage and Hour Division (WHD): Home Page

ESA/ WHD: YouthRules! Home Page

Youngest age for workers?

2009-05-25T04:44:00.000-07:00

Q. What is the youngest age at which a person can be employed in the US?

A. The Fair Labor Standards Act (FLSA) sets 14 as the minimum age for most non-agricultural work.

However, at any age, youth may:

deliver newspapers

perform in radio, television, movie, or theatrical productions

work in businesses owned by their parents (except in mining, manufacturing or hazardous jobs); and

perform babysitting or perform minor chores around a private home.

Also, at any age, youth may be employed as homeworkers to gather evergreens and make evergreen wreaths.

Different age requirements apply to the employment of youth in agriculture.

Many states have enacted child labor laws, some of which may have a minimum age for employment which is higher than the FLSA.

Where both the FLSA and state child labor laws apply, the higher minimum standard must be obeyed.

Source: US Department of Labor ELaws Advisor

When can I file an EEOC Charge?

2009-05-22T08:32:00.001-07:00

Q. I've heard of the Equal Employment Opportunity Commission, and I understand that it's a federal agency involved with workplace discrimination laws. When can I file an EEOC Charge?

A. You can file a formal job discrimination complaint with the EEOC whenever you believe you are:

Being treated unfairly on the job because of your race, color, religion, sex, pregnancy, national origin, disability, or age 40 or older; or

Being harassed at work for any of these reasons; or

Being treated unfairly or harassed because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

This complaint is called a "Charge of Discrimination." All of the laws enforced by the EEOC, except for the Equal Pay Act, require you to file a Charge of Discrimination with the EEOC before you can file a job discrimination lawsuit against your employer.

There are strict time limits for filing a job discrimination complaint with the EEOC. In some cases, you only have 180 days to report discrimination to EEOC. You have 300 days if your complaint is also covered by a state or local anti-discrimination law. These time limits are important, because in some instances they can prevent you from bringing a lawsuit in court if they are not followed.

If you are going to contact a lawyer, you should give yourself plenty of time to find a good one - as early as possible before the deadline. Your lawyer will need time to gather the information, analyze your particular case, and prepare documents for the EEOC.

If you believe you have been discriminated against or harassed at work by a federal government employer, you must follow different procedures. For information on how the process works, see the guidelines for Federal Sector Equal Employment Opportunity Complaint Processing.

Source: US EEOC

Women's Health and Cancer Rights?

2009-05-21T08:59:00.000-07:00

Q. What is the Women's Health and Cancer Rights Act (WHCRA)?

A. The Women's Health and Cancer Rights Act (WHCRA), signed into law on October 21, 1998, includes important protections for individuals who elect breast reconstruction in connection with a mastectomy.

WHCRA amended the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act (PHS Act) and is administered by the Departments of Labor and Health and Human Services.

Under WHCRA, group health plans, insurance companies and health maintenance organizations (HMOs) offering mastectomy coverage must also provide coverage for reconstructive surgery in a manner determined in consultation with the attending physician and the patient.

Coverage includes reconstruction of the breast on which the mastectomy was performed, surgery and reconstruction of the other breast to produce a symmetrical appearance, and prostheses and treatment of physical complications at all stages of the mastectomy, including lymph edemas.

Source: U.S. Department of Labor, FAQ's About Women's Health and Cancer Rights

Assistance for newly unemployed?

2009-05-18T05:55:00.000-07:00

Q. I was recently laid off, and I don't know where to begin to find a new job. Is there any assistance for me in Colorado?

A. Yes. Colorado Workforce Centers through the Colorado Department of Labor & Employment provide a variety of free services to assist employers and job seekers alike.

For job seekers, these services include job listings, computer & internet access, career counseling & training.

For employers, they include recruitment of workers, pre-screening & referral services, tax credits, and training reimbursement for employers.

Customers can choose either self-service or staff-assisted options to meet their employment needs. Here are a couple of links to help you get started:

Find a workforce center by CITY

Find a workforce center by COUNTY/REGION

Reverse age discrimination?

2009-05-15T04:44:00.000-07:00

Q. I am 35 and work for a large computer software company. I recently read an article saying that in this economy lay offs might be affecting younger workers more than the older workers, because employers are afraid of laying off older workers for fear of age discrimination lawsuits. If I get laid off, could I have a claim of reverse age discrimination under federal law?

A. Not at this time. The Age Discrimination in Employment Act (ADEA) forbids discrimination against workers over the age of 40. The U.S. Supreme Court has interpreted the ADEA in a case called General Dynamics Land Systems v. Cline (2004), and decided that the ADEA does not allow for "reverse age discrimination claims." Unless the Congress changes the law, or unless the Supreme Court interprets the ADEA differently in another case, there is no federal claim for reverse age discrimination.

Sometimes state laws provide greater protections for workers than federal law. Oregon and New Jersey have allowed reverse age discrimination claims, so you may have protection under state anti-discrimination laws, depending on where you live.

What is retaliation?

2009-05-14T07:36:00.000-07:00

Q. What is retaliation?

A. You have a right to report treatment that you believe is illegal job discrimination.

Your employer cannot punish you, treat you differently or harass you if you report job discrimination or help someone else report job discrimination, even if it turns out the conduct was not illegal, according to the EEOC.

The US Equal Employment Opportunity Commission calls this your right to be protected from retaliation.

Although you are protected from retaliation, you are not excused from continuing to perform your job or follow your company's legitimate workplace rules just because you file a complaint with the EEOC or report discrimination to others. Your employer has a right to expect you to continue to fulfill your job responsibilities.

Flu notifications?

2009-05-13T04:44:00.000-07:00

Q. I'm a manager at a mid-sized company. An employee has the flu. I'm concerned about H1N1 flu and our possible liability. Should I notify the other workers?

A. The law requires that you keep an employee's medical information private, unless there is a need for a more senior manager to know about it. This means that you should not discuss any employee's medical information with other co-workers. The law also places strict limits on when you can ask an employee about his or her medical condition, according to the EEOC.

For more information about flu preparedness, see my previous blog post with guidelines.

Funeral Leave?

2009-05-12T07:56:00.000-07:00

Q. Do I get paid while attending a funeral?

A: The Fair Labor Standards Act (FLSA) does not require payment for time not worked, including attending a funeral. This type of benefit is generally a matter of agreement between an employer and an employee, or the employee's representative.

Check your employee handbook to see your employer's policy on bereavement leave.

Source of FAQ: US Department of Labor

Online Help for Colorado Unemployed?

2009-05-08T05:55:00.000-07:00

Q. I live in Colorado and recently lost my job in a lay off. I've heard that the unemployment office is swamped, and I can't get through on the phone line. Is there any help online?

A. Yes. The Colorado Unemployment Insurance Program has made additional services available online.

You may file for Emergency Unemployment Compensation, select payment methods, file a request to delete your claim, or request a new personal identification number.

Click on Unemployment Online Services for additional information.

Steps to Prevent Harassment at Work?

2009-05-07T06:53:00.000-07:00

Q. What steps should an employer take to prevent unlawful workplace harassment?

A. The most important step for an employer in preventing harassment is clearly communicating to employees that harassment based on national origin will not be tolerated and that employees who violate the prohibition against harassment will be disciplined, according to the EEOC.

Other important steps include:

* adopting effective and clearly communicated policies and procedures for addressing complaints of national origin harassment, and

* training managers on how to identify and respond effectively to harassment.

By encouraging employees and managers to report harassing conduct at an early stage, the EEOC says employers generally will be able to prevent the conduct from escalating to the point at which it violates Title VII.

Full-time or part-time for pay purposes?

2009-05-06T13:53:00.000-07:00

Q: How many hours is full-time employment? How many hours is part-time employment?

A: The Fair Labor Standards Act (FLSA) does not define full-time employment or part-time employment. This is a matter generally to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.

Source of FAQ: http://www.dol.gov/elaws/faq/esa/flsa/014.htm-->

Remember that other laws may define part time status, such as the WARN Act.

Retaliate for Reporting Safety Violations?

2009-05-01T09:24:00.000-07:00

Q: Can I be punished or discriminated against for exercising my rights under the Occupational Safety and Health Administration (OSHA)?

A: The OSH Act and other laws protect workers who complain to their employer, union, OSHA or other government agencies about unsafe or unhealthful conditions in the workplace or environmental problems.

You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you have exercised any right afforded to you under the OSH Act. Help is available from OSHA for whistleblowers.

But complaints about discrimination must be filed as soon as possible – within 30 days of the alleged reprisal for most complaints.

Source of FAQ: http://www.osha.gov/dit/faq/faq7.html-->

Prepare for Swine Flu?

2009-04-30T12:10:00.000-07:00

Q. I own a recruiting firm, and I employ about 50 employees. Are there steps I should be taking to prepare for the Swine Flu?

A. Yes. Employers are responsible for providing a safe and healthful workplace for their employees. In the event of an influenza pandemic, employers will play a key role in protecting employees' health and safety as well as in limiting the impact on the economy and society.

Employers will likely experience employee absences, changes in patterns of commerce and interrupted supply and delivery schedules. Proper planning will allow employers in the public and private sectors to better protect their employees and lessen the impact of a pandemic on society and the economy.

The Occupational Safety and Health Administration (OSHA) developed pandemic influenza planning guidance based upon traditional infection control and industrial hygiene practices. It is important to note that there is currently no pandemic; thus, this guidance is intended for planning purposes and is not specific to a particular viral strain.

Additional guidance may be needed as an actual pandemic unfolds and more is known about the characteristics of the virulence of the virus, disease transmissibility, clinical manifestation, drug susceptibility, and risks to different age groups and subpopulations.

Employers and employees should use this planning guidance to help identify risk levels in workplace settings and appropriate control measures that include good hygiene, cough etiquette, social distancing, the use of personal protective equipment, and staying home from work when ill.

See OSHA's Guidance on Preparing Workplaces for an Influenza Pandemic here.

Up-to-date information and guidance is available to the public through the www.pandemicflu.gov website.

What is Employment Discrimination?

2009-04-29T10:14:00.000-07:00

Q. I am familiar with the word "discrimination." But what does it really mean? What is employment discrimination?

A. The US Equal Employment Opportunity Commission says to "discriminate" against someone means to treat that person differently, or less favorably, for some reason.

Discrimination can occur while you are at school, at work, or in a public place, such as a mall or subway station. You can be discriminated against by school friends, teachers, coaches, co-workers, managers, or business owners.

The EEOC is responsible for protecting you against one type of discrimination - employment discrimination because of your race, color, religion, sex (including pregnancy), national origin, disability or age (age 40 or older).

Other laws may protect you from other types of discrimination, such as discrimination at school or discrimination at work because of your sexual orientation.

The laws enforced by EEOC protect you against employment discrimination when it involves:

Unfair treatment because of your race, color, religion, sex (including pregnancy), national origin, disability, or age (age 40 or older).

Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy), national origin, disability, or age (age 40 or older).

Denial of a reasonable workplace change that you need because of your religious beliefs or disability.

Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

For more information about the types of practices prohibited by the laws enforced by EEOC, see EEOC's Facts on discriminatory practices.

Source: EEOC Youth At Work

Colorado employment attorney Kimberlie Ryan handles employment discrimination and harassment claims for Colorado workers.

Honoring Columbine

2009-04-20T17:19:00.001-07:00

May your Angels comfort you during this time, dear Columbine.

Remember with love the souls who shared our journey. Their love lives.

Employee Responsibilties?

2009-04-20T05:55:00.000-07:00

Q. What should I know about my reponsibilities as an employee?

A. The laws enforced by Equal Employment Opportunity Commission provide 3 basic guidelines:

1. Don't Discriminate

You should not treat your co-workers unfairly or harass them because of their race, skin color, national origin, sex (including pregnancy) religion, disability, or age (age 40 or older). For example, you should not tell sexual or racial jokes at work or tease people because they are different from you.

2. Report Discrimination

You should tell your company about any unfair treatment or harassment. Find out if your company has a policy on discrimination that specifies who you should contact about these issues.

3. Request Workplace Changes

You have a responsibility to tell your company if you need a workplace change because of your religious beliefs or medical condition. Your request does not have to be in writing, but you must provide enough information so your company can determine how to help you.

Source: EEOC, Youth At Work

Job Opportunities at the Department of Labor?

2009-04-17T05:55:00.000-07:00

Q: How can I find out about employment opportunities at DOL?

A: You can find listings of current job openings, details about pay and benefits, and information for college students preparing to enter the workforce on the Department of Labor's Job Opportunities Web site.

Ban Twitter at Work?

2009-04-16T08:33:00.000-07:00

Q. I work at a large hotel chain, and my company is saying we can't Twitter at work. Whatever happened to the First Amendment and freedom of speech? Can my boss ban Twitter at work?

A. Generally, yes. Assuming you are employed by a private employer and not a governmental entity, you essentially have no First Amendment rights at work. Sounds harsh, and many employees are surprised to learn of this, but generally speaking the First Amendment only prohibits the government from interfering with your freedom of speech. It does not usually apply to private employers.

At this time, there is no federal law preventing your boss from banning Twitter at work. Many employers are updating their policies, given the new technologies available to workers. Some employers are implementing policies to ban social networking tools based on concerns of employee productivity and to protect confidential company information. It is always important for employees to know the policies of their companies, so it's critical for employees to keep updated and read employer policies and the employee handbook.

Is it wise to ban Twitter at work? Maybe, maybe not. But so far, there is nothing stopping employers from stopping the Tweets.

Ban Employees from Wage Talk?

2009-04-14T05:55:00.000-07:00

Q. Can my employer prohibit me from talking about my wages at work?

A. Generally, no, if you work in Colorado and if the Colorado law prohibiting what I call "salary gag orders" applies in your case. Employers nationwide often have had policies prohibiting or restricting their employees from talking about wages. But the Colorado "Wage Transparency Act" prohibits employers from taking adverse actions against employees who discuss their wages with others. The law also prohibits making nondisclosure of wages a condition of employment. This law, however, does not apply to employers exempt from the federal Fair Labor Standards Act.

The law is part of the Colorado Anti-Discrimination Act:

C.R.S. 24-34-402

(1) It shall be a discriminatory or unfair employment practice:



		(i) Unless otherwise permitted by federal law, for an employer to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages; to require as a condition of employment nondisclosure by an employee of his or her wages; or to require an employee to sign a waiver or other document that purports to deny an employee the right to disclose his or her wage information. This paragraph (i) shall not apply to employers who are exempt from the provisions of the "National Labor Relations Act", 29 U.S.C. sec. 151 et seq.

Protection for Non-Citizens?

2009-04-13T04:56:00.000-07:00

Q. Am I protected by U.S. discrimination laws if I am not a U.S. citizen or if I do not have proper work authorization?

A. Yes. The federal discrimination laws protect all job applicants and employees, regardless of citizenship or work authorization, according to the US EEOC.

Men Protected from Harassment Too?

2009-04-09T04:44:00.000-07:00

Q. Are men protected from sex harassment?

A. Yes. Both men and women are protected from workplace harassment on the basis of sex, according to the EEOC.

Off-site harassment?

2009-04-08T21:08:00.000-07:00

Q. Does harassment have to occur at work for it to be illegal?

A. No. Federal law protects you from job discrimination and harassment, whether it occurs on or off the work site. For example, you may have a potential claim for sexual harassment if your manager pressures you for dates while at a work-related conference, according to the EEOC.

Deny COBRA subsidy?

2009-04-07T04:56:00.000-07:00

Q. My former employer says I don't qualify for the stimulus COBRA health insurance subsidy because I earned too much. He says they won't approve me based on my prior salary. I thought I qualified for the 65% subsidy since I was recently laid off. Can my (former) boss really do this?

A. Yes, under some circumstances. This subsidy phases out for individuals whose modified adjusted gross income exceeds $125,000, or $250,000 for those filing joint returns. Taxpayers with modified adjusted gross income exceeding $145,000, or $290,000 for those filing joint returns, do not qualify for the subsidy, according to the IRS. More information on the COBRA subsidy is available from the U.S. Department of Labor.

If you believe you have been inappropriately denied eligibility for the premium reduction, you may wish to speak with a US Department of Labor Employee Benefits Security Administration Benefits Advisor at 1.866.444.3272.

Pay COBRA subsidy directly to me?

2009-04-06T05:55:00.000-07:00

Q. I have heard that the stimulus package signed by President Obama includes a temporary COBRA premium reduction for my health insurance after my lay off from my job. I understand that if I qualify, I pay 35% of my COBRA premiums, and there is a 65% subsidy. How does the 65% premium subsidy get paid to me?

A. You will not receive a payment, according to the US Department of Labor. Assistance Eligible Individuals are responsible for paying only 35% of the COBRA premium for the period of coverage.

The remaining 65% of the premium is reimbursed directly to the employer, plan administrator, or insurance company through a payroll tax credit. For more information about the stimulus COBRA subsidy see the Department of Labor's FAQs.

Force Pregnancy Leave?

2009-04-03T05:55:00.000-07:00

Q. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, may her employer require her to remain on leave until after her baby is born?

A. No. An employee must be permitted to work at all times during pregnancy when she is able to perform her job, if she works for an employer covered by Title VII of the Civil Rights Act of 1964.

Source: EEOC Regulations, 29 C.F.R Part 1604.11

Religious accommodation?

2009-04-02T04:56:00.000-07:00

Q. What are common methods of religious accommodation in the workplace?

A. Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

Title VII requires an employer, once on notice that a religious accommodation is needed, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.

Under Title VII, an employer or other covered entity may use a variety of methods to provide reasonable accommodations to its employees. Some of the most common methods are:

* Scheduling changes, voluntary substitutes, and shift swaps
* Changing an employee’s job tasks or providing a lateral transfer
* Making an exception to dress and grooming rules
* Use of the work facility for a religious observance
* Accommodations relating to payment of union dues or agency fees
* Accommodating prayer, proselytizing, and other forms of religious expression

Similarly, according to the EEOC, requests for accommodation of a “religious” belief or practice could include, for example: a Catholic employee requesting a schedule change so that he can attend church services on Good Friday; a Muslim employee requesting an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requesting an exception allowing her to wear her bindi (religious forehead marking); an atheist asking to be excused from the religious invocation offered at the beginning of staff meetings; an adherent to Native American spiritual beliefs seeking unpaid leave to attend a ritual ceremony; or an employee who identifies as Christian but is not affiliated with a particular sect or denomination requests accommodation of his religious belief that working on his Sabbath is prohibited.

For more information see the EEOC's Questions and Answers: Religious Discrimination in the Workplace

Pay Overtime?

2009-04-01T05:55:00.000-07:00

Q: When is overtime due?

A: According to the US Department of Labor, for covered, nonexempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek.

Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.

Some states also have enacted overtime laws. Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

Count pregnancy leave toward FMLA?

2009-03-31T05:55:00.000-07:00

Q: Can my employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

A: Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement, according to the Department of Labor.

Department of Labor FAQ - Vacation Pay

2009-03-30T14:22:00.000-07:00

Q: How are vacation pay, sick pay, and holiday pay computed and when are they due?

A: The Fair Labor Standards Act (FLSA) does not require payment for time not worked, such as vacations, sick leave or holidays, federal or otherwise.

These benefits are a matter of agreement between an employer and an employee, or the employee's representative.

Source of FAQ: http://www.dol.gov/elaws/faq/esa/flsa/006.htm-->

Cut my retirement health benefits?

2009-03-27T04:44:00.000-07:00

Q. I retired last year from a large auto dealership. I thought I was set for life with my retirement benefits. Now I'm hearing that they are considering cutting the retirement health benefits. Can my (former) boss really do that?

A. Maybe. Employees and retirees should know that private-sector employers are not required to promise retiree health benefits. Furthermore, when employers do offer retiree health benefits, nothing in federal law prevents them from cutting or eliminating those benefits--unless they have made a specific promise to maintain the benefits, according to the US Department of Labor. The key to understanding your retiree health benefits lies in the documents governing your plan. Check out the Summary Plan Description (SPD).

If your employer has reserved the right in the SPD and controlling plan document to change the terms of the plan, you may lose coverage at any time during your retirement.

But, if your employer made a clear promise that you will have specific health care benefits for a definite period of time or for life, and did not reserve the right to change the plan, you should be covered, according to the DOL. Find out more information here.

Bypass me for promotion because of pregnancy?

2009-03-26T05:55:00.000-07:00

Q. I was bypassed for a major promotion because I am pregnant. Can my boss do this?

A. No. The law is very specific when it comes to pregnancy discrimination. Your employer cannot take away credit for previous work years or seniority because you go on maternity leave, according to the US Department of Labor. These cases can be difficult to prove, as your boss may try to give different reasons for the adverse employment action, so you may need legal counsel. Colorado employment lawyer Kim Ryan handles federal and state pregnancy discrimination claims in Colorado and can be reached at kim@ryanfirm.com.

Cancel health insurance during military service?

2009-03-25T05:59:00.000-07:00

Q. I work for a health care organization and have been called to military active duty for the reserves. I will be deploying to Afghanistan in a few weeks. I talked to the HR assistant in my office, and he tells me he thinks they can discontinue my health insurance while I'm gone. Can my boss do that?

A. No, not if you request continuation of your health insurance.

An employer must continue health insurance for an employee on military duty, if requested, according to the US Department of Labor. The entitlement is for up to 18 months from the date the absence from employment begins.

But, for periods of service in excess of 30 days, the employee may be required to pay up to 102 percent of the total cost of the insurance.

Deny funeral leave?

2009-03-24T07:58:00.000-07:00

Q. I lost my beloved brother recently, and we need to go out of state for his funeral. I work for a small mortgate company in Colorado, and my boss says we have no policy allowing funeral leave. He says I can't take even unpaid time to go. Can my boss do that?

A. Generally, yes. Funeral leave is a benefit offered by some employers, but is not legally required by federal law. According to the US Department of Labor, The Fair Labor Standards Act (FLSA) does not require payment for time not worked, including attending a funeral.

This type of benefit is generally a matter of agreement between an employer and an employee (or the employee's representative). If your boss has allowed other employees to take funeral leave, it is possible there might be some kind of discrimination claim, although it could be extremely difficult to prove. Be sure to check your employee handbook to verify your company's written position on funeral leave. If there is in fact a policy, you may have more to go on.

Fail to Pay Employment Taxes?

2009-03-19T04:44:00.000-07:00

Q. It's tax time, and I just found out my boss failed to pay my employment taxes to the IRS. Can my boss do that?

A. Not really. Both employer and employee hold the responsibility for collecting and remitting withholding taxes to the IRS, according to the IRS. For the most part, the employer withholds these taxes on behalf of their employees, but in cases where an employer does not do this, or where an employee is self-employed, it is the responsibility of the employee to pay these withholding taxes.

Employer's Responsibility. Employers must report income and employment taxes withheld from their employees on an Employer's Quarterly Federal Tax Return (Form 941) and deposit these taxes in full to an authorized bank or financial institution pursuant to Federal Tax Deposit Requirements. Employers who do not comply with the employment tax laws may be subject to criminal and civil sanctions for willfully failing to pay employment taxes.

Employee's Responsibility. Employees who do not have taxes withheld nor remit them personally, are still liable for these taxes and may not qualify for Social Security, Medicare, or unemployment benefits.

According to the IRS, employees who are concerned that their employer is improperly withholding or failing to withhold federal income and employment taxes should report their employer by contacting the IRS at 1-800-829-1040.

Fire me for smoking?

2009-03-18T08:57:00.000-07:00

Q. I work in Colorado as a secretary for a small real estate company. My boss saw me smoking outside a restaurant the other night, while I was off-duty. He told me that unless I quit smoking, he will fire me. Can my boss really do that?

A. It depends. If your company has more than 15 employees, your boss cannot fire you for smoking off duty, off premises, unless it is a bona fide occupational requirement that you not smoke, or unless it would create a conflict of interest for your employer. Based on the circumstances you describe, it probably would be difficult to say that not smoking is a bone fide occupational qualification or a conflict of interest, so if he fires you for this reason, and you can prove that's the reason, you might have a claim for lost wages and benefits. He can, however, impose smoking restrictions at work. Here's the Colorado law on lawful off duty conduct:

24-34-402.5. Unlawful prohibition of legal activities as a condition of employment.

Happy St. Patrick's Day!

2009-03-17T16:07:00.000-07:00

Happy St. Patrick's Day from Kimberlie Ryan and
The Ryan Law Firm, LLC!

Impose Health Benefits Waiting Period on Return from Active Duty?

2009-03-16T18:53:00.000-07:00

Q. My family and I had health coverage under my employer's group health plan before I was called on military active duty. We let this coverage lapse while I was away and took military health coverage. When I returned to my employer from active duty, my boss told me they might impose a waiting period to reenter my employer's health plan. Can my boss do that?

A. Generally, no. Under USERRA (Uniformed Services Employment and Reemployment Rights Act), you and your family should be able to reenter your employer's health plan, according to the US Department of Labor. In addition, your plan generally cannot impose a waiting period or other exclusion period if health coverage would have been provided were it not for military service. The only exception to USERRA's prohibition of exclusions is for an illness or injury determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, performance of service in the uniformed services, which is covered by the military health plan.

Monitor personal calls at work?

2009-03-13T05:55:00.000-07:00

Q. I work long hard hours, and every once in a while I take a break to call my friends from work. My company just released a new employee handbook, and I was alarmed to see that the company says it can monitor my phone calls made in my office. Can my boss really do that?

A. Yes, under limited circumstances. Generally employers can monitor business phones in the ordinary course of business, especially if the company notifies employees in advance that all company property is subject to monitoring. However, once an employer realizes that a call is personal, the employer must immediately stop monitoring the call or risk possible claims for violating federal or state laws. It would not prevent employers from enforcing a policy restricting the number of personal calls from work, though.

Also, kudos to you for reading your employee handbook. That's a huge first step in knowing and protecting your rights at work!

Deny Leave for Domestic Violence?

2009-03-12T05:55:00.000-07:00

Q. My boss denied my request for a couple of days of leave so I can get a restraining order against my ex-husband, who has been stalking me and threatening my safety. I work in Colorado for a private retail business. I am afraid for my safety and my boss won't let me take leave to get help. Can my boss do that?

A. Probably not. Under Colorado law, employers shall permit an employee to request or take up to three working days of leave from work in any twelve-month period, with or without pay, if the employee is the victim of domestic abuse, the victim of stalking, the victim of sexual assault, as these terms are defined by law. This section shall only apply if such employee is using the leave from work to protect himself or herself by:

1. Seeking a civil protection order to prevent domestic abuse;

2. Obtaining medical care or mental health counseling or both for himself or herself or for his or her children to address physical or psychological injuries resulting from the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence;

3. Making his or her home secure from the perpetrator of the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence or seeking new housing to escape said perpetrator; or

4) Seeking legal assistance to address issues arising from the act of domestic abuse, stalking, or sexual assault or other crime involving domestic violence and attending and preparing for court-related proceedings arising from said act or crime.

Your employer may require you to exhaust any and all annual or vacation leave, personal leave, and sick leave that may be available to you, unless the employer waives this requirement.

Also, this law prohibits employers from discharging or discriminating against any individual for exercising his or her rights under this section.

This law only applies to employers who employ fifty or more employees and to employees who have been employed with the employer for twelve months or more.

The full text of this Colorado law can be found here: 24-34-402.7. Unlawful action against employees seeking protection.

Allow sexual orientation harassment?

2009-03-11T20:10:00.000-07:00

Q. I work in Colorado for a large hotel chain. Recently a co-worker has found out my sexual orientation and has started harassing me. I heard that federal law does not expressly protect workers based on sexual orientation. I don't want this to be an issue at work, and I prefer to keep my private life private. I think my boss knows about this harassment because she has been present when it has happened, but she has done nothing to stop it. Can my boss do that?

A. No. Although federal law does not yet directly protect workers from harassment based on sexual orientation, Colorado law does. Colorado law protects workers from sexual orientation discrimination and harassment and defines "sexual orientation" as a person's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer's perception thereof. But the law does not consider the harassment to be illegal unless you first file a complaint with the appropriate authority at your workplace and the company fails initiate a reasonable investigation and take prompt remedial action if appropriate. Here's the Colorado law: 24-34-402. Discriminatory or unfair employment practices.

Deny Access to My Personnel File?

2009-03-10T05:55:00.000-07:00

Q. I work for a Colorado company, and I have received letters of commendation from some of our clients saying what a great job I have done for them in my position. I have submitted them to HR to include in my personnel file. I have asked HR for a copy of my personnel file, and they are telling me that I am not allowed to have a copy of my own personnel file. I checked my employee handbook, and there is no policy on personnel files. HR won't budge and won't give me my file. Can my boss really do that?

A. In Colorado, yes. There is no federal or Colorado state law protecting employees' rights to the personnel files maintained by their private employers. Since these files contain information that could affect workers into the future, employees often would like to see what is in the file, whether it is correct, and when certain personnel actions have occurred. Some employers provide access to personnel files, usually by including something in the handbook, or even allowing employees to verbally request copies. But it is not required in Colorado.

Some states require some form of access, even if it is limited to a review without the opportunity to make copies. The on-line Business Owner's Toolkit provides an excellent summary of state laws on access to personnel files, as well as a recommendation that employers should "allow reasonable access to personnel files as part of a policy of treating employees with fundamental fairness."

Whether Colorado ultimately will pass a law protecting employees' right of access to their workplace information remains an open question. For now, you should keep home copies of all documents provided to you including commendations, discipline, reviews, contracts, handbooks, benefits, and any other documents relating to your employment and work performance.

Deny FMLA to Care for In-Law?

2009-03-09T06:00:00.000-07:00

Q. My mother-in-law is ill with shingles, and I need to take leave from work to care for her. My HR manager says that although I would qualify for FMLA, I can't take it to care for an in-law. Can my boss do that?

A. Yes. The FMLA allows unpaid leave for eligible employees to care for an immediate family member with a serious health condition. An employee's spouse, children, and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law," according to the US Department of Labor. Under these circumstances, your employer can deny the FMLA leave without violating the FMLA.

Deny my COBRA coverage?

2009-03-08T09:51:00.000-07:00

Q. My health coverage was terminated when my employer shut down and laid off all its workers. HR tells me there is no longer a health plan, but I understand the economic stimulus was supposed to help continue my health coverage through COBRA. Can my boss do that?

A. Possibly. Although the American Recovery and Reinvestment Act provides a premium-reduction to help qualified individuals pay for COBRA continuation health coverage, if there is no longer a health plan, there is often no COBRA coverage available. If related employer or successor employer sponsors a group health plan, it may be responsible for providing coverage to you, according to the US Department of Labor.

If you believe a related or successor employer may be responsible for providing you with COBRA coverage, you can contact the employer directly or EBSA toll free at 1.866.444.3272 to speak to a Department of Labor Benefits Advisor for assistance.

Require a Doctor's Note for FMLA Leave?

2009-03-07T22:15:00.000-08:00

Q. I need to take family and medical leave to help my husband recover from cancer treatments. My employer has a policy for FMLA leave and HR tells me I am eligible, but they are requiring me to provide a certification from the doctor. I don't feel comfortable releasing medical records. Can my boss do that?

A. Yes and no. You do not need to provide medical records. An employer may require that you support the need for leave for a serious health condition of you or your immediate family with a certification issued by a health care provider. Your employer must allow you at least 15 calendar days to obtain the medical certification, according to the Department of Labor.

The Medical Certification form approved by the US Department of Labor can be found here. You can give it to your doctor to fill out.

Include a Non-Compete in the Severance?

2009-03-07T22:14:00.000-08:00

Q. I am a Senior Vice President of marketing for a global corporation in a specialized field, and I have been offered a severance package to leave my position after a transition period of 6 months during a corporate restructuring. I have been on good terms with the company and would like to keep it that way. But I am concerned about a provision called, "Non-competition and non-solicitation" that says that I won't compete with the company or any of its affiliates, subsidiaries or other related companies for 2 years. This could effectively keep me from working in my field I hate to lose the severance, but they won't budge. Can they really do that?

A. It depends. Of course, you don't have to sign the agreement. But let's face it, it's hard to turn down a lump sum of money that could tide you over during your transition between jobs. If you do sign the agreement, it is possible, if not likely, that the non-compete provision could be enforced in Colorado under these circumstances. While Colorado law voids certain non-compete agreements, they can be enforceable if the scope, duration, and geographic locations are deemed reasonable, and if you qualify as executive or management personnel.

Never sign a non-compete provision in a severance thinking that you will be able to challenge it later. Get legal advice if you do not fully understand every provision in a severance agreement. Not only can you waive important legal rights in a severance agreement, you may be commiting to agreements like "non-competes" that may severely limit your future income. Since you have a good relationship with the company, you may be able to negotiate with them (either with legal counsel or on your own) to remove the provision, to narrow it, or to increase the amount of severance to account for the time you might be out of the market.

Age discrimination?

2009-03-07T21:50:00.000-08:00

Q. I worked as a technical manager for a home improvement store for more than 22 years before I was discharged at age 50. My employment record included favorable performance reviews, bonuses, and salary increases. Everything changed when a 33-year old became the district service manager. He commented unfavorably on my performance, rated me lower on performance appraisals, placed me on a performance improvement plan, and set a deadline for me to identify and organize equipment in a storage area. I was then informed that I was being fired because I failed to meet the deadline and displayed a "lack of ownership" of my responsibilities. Approximately two months before firing me, when I expressed concern about additional responsibilities being assigned to technical managers, he replied, "Hell, you are old enough, you have been around long enough, you should handle this." I've lost my job now, can they really do this?

A. In a similar lawsuit, one court found that a jury could infer age bias under the circumstances you describe because it reflects the boss' awareness your age, not merely your experience or time with the company. If the district manager was directly involved in the decision to fire you, it is possible that a jury could infer from his statement that he was more impatient with you because of your age and held you to a different standard than your coworkers because of your age.

To determine if age was the motivating factor in the discipline and firing, there would be a comparison of treatment of you and similarly situated employees, so it would be helpful to know if other employees in your job position had been treated differently as far as job standards, reviews, performance improvement plans, and termination. This would be a highly fact dependent analysis.

Require English-Only at work?

2009-03-07T21:43:00.000-08:00

Q. I work as a housekeeper for a hotel. The hotel has adopted a policy requiring employees to speak only English while in the workplace, including when speaking to coworkers during breaks or when making personal telephone calls. The hotel has placed Hispanic workers under close scrutiny to ensure compliance and has replaced workers who violate the rule with non-Hispanics. I am a native Spanish speaker, and I believe the policy discriminates against me. The hotel states that the rule was adopted to promote better employee relations and to help improve English skills. Can my boss really do this?

A. Under these circumstances, no. Especially if the hotel cannot produce evidence of poor employee relations due to communication in languages other than English. If proficient English skills are not required for any of the positions held by non-native English speakers, or if you can show that the hotel acted in a harassing manner, the English-only rule is likely to be found unlawful.

In some limited circumstances, the EEOC says business necessity could justify an English-only rule, such as for communications with customers, coworkers, or supervisors who only speak English, or for emergencies or other situations in which workers must speak a common language to promote safety. It may also be permissible for cooperative work assignments in which the English-only rule is needed to promote efficiency, or if an employee's job duties require communication with coworkers or customers, it could be permissible to enable a supervisor who only speaks English to monitor the performance of an employee. However even if a policy could be appropriate for some limited circumstances, it is never appropriate to enforce it in a harassing way.

Allow harassment by a non-employee?

2009-03-07T21:09:00.000-08:00

Q. I work at a Senior Community as a resident assistant. Our community has "neighborhood days," when we allow senior citizens in the neighborhood to visit the residents. "Charles" frequently visits, and he often yells derogatory comments about Asians at me and has even pushed and tripped me on a few occasions. I'm a Filipino American. I have reported the conduct to a manager, she told me that she cannot take any action against Charles because he is not a resident. On subsequent visits, Charles continues to yell ethnic slurs at me, and I filed an EEOC charge. My employer continues to allow Charles to harass me. Can my boss really do that?

A. No. According to the EEOC, under these circumstances, the employer would be liable for the actions of Charles, a non-employee, because it had the power to control Charles's access to the premises, was aware of Charles's offensive conduct, and did not take corrective action.

It would still be up to you to prove that the conduct was severe or pervasive and that you have suffered damages as a result. It is often difficult to quantify monetary damages for hostile work environment, but the law does allow recovery for emotional distress and punitive damages if you can prove them.

Fire me for referring a pregnant applicant?

2009-03-07T20:56:00.000-08:00

Q. I work for a small employment agency with 20 employees. My manager instructed me not to refer any pregnant applicants to a particular client, based on the client's request. Based on my training, I believe this would violate the law against pregnancy discrimination. I refused to obey the order and referred a pregnant applicant to the client. My boss fired me, saying that my refusal to follow her order constituted "insubordination." Can my boss do that?

A. No. At least not without violating the federal employment law prohibiting retaliation. According to the EEOC, refusal to obey an order constitutes protected opposition if the individual reasonably believes that the order requires her to carry out unlawful employment discrimination. Refusal to obey an order also constitutes protected opposition if the individual reasonably believes that the order makes discrimination a term or condition of employment. Title VII applies to employers with more than 15 employees.

Colorado law also expressly prohibits employment agencies from refusing to refer otherwise qualified candidates because of their sex, and Colorado law applies to most employers in Colorado, regardless of the number of employees. Here's the Colorado law on this topic: 24-34-402. Discriminatory or unfair employment practices.

Require me to remove my turban or be fired?

2009-03-07T20:00:00.000-08:00

Q. I am a Sikh man and the turban that I wear is a religiously-mandated article of clothing. My supervisor tells me that my because turban makes my coworkers "uncomfortable," he is asking me to remove it or he will fire me. Can my boss really do that?

A. No. According to the EEOC, if a turban is religiously-mandated, you should ask your employer for a religious accommodation to wear it at work. Your employer has a legal obligation to grant your request if it does not impose a burden, or an "undue hardship," under Title VII (the federal law prohibiting religious discrimination in the workplace).

Claiming that your coworkers might be "upset" or "uncomfortable" when they see your turban is not an undue hardship.

Allow co-workers to mock my religion?

2009-03-07T19:52:00.000-08:00

Q. I am an Arab American man and have been a salesman at a large car retailer for five years. After September 11, my coworkers stopped talking to me, and there has been a lot of tension. One coworker started calling me names like "camel jockey" and "the local terrorist." I used to have a good relationship with my coworkers and enjoyed my job, but now I dread coming to work each day. I have reported this to management, but my boss says "that's just how they are," and I need to develop a "thicker skin." Can my boss really do that?

A. No. Religious harassment in violation of federal law occurs when employees are subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.

According to the EEOC, it is necessary to evaluate all of the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome. For example, where an employee is upset by repeated mocking use of derogatory terms or comments about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome. In contrast, a consensual conversation about religious views, even if quite spirited, does not constitute harassment if it is not unwelcome.

Religious expression that is repeatedly directed at an employee can become severe or pervasive, whether or not the content is intended to be insulting or abusive. Thus, for example, persistently reiterating religious views to an employee who has asked that this conduct stop can create a hostile environment.

Deny my paternity leave?

2009-03-07T19:03:00.000-08:00

Q: I'm a new father. I need to take some leave from work to care for our newborn son, as my wife's leave has ended. Our company has a policy allowing maternity leave and FMLA leave. I even offered to go part-time, but he tells me that he has to keep that part-time slot open in case one of our female workers needs it. He tells me that I cannot take leave, but he has allowed women in our office leave to care for their newborns. Can my boss really do that?

A. No. Employers may not treat either sex more favorably with respect to leave for childcare purposes.

Unfortunately, gender-based stereotypes also influence how male workers are perceived: “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination," according to the US Supreme Court.

While working women generally have borne the brunt of gender-based stereotyping, unlawful assumptions about working fathers and other male caregivers exist at work. Stereotypes sometimes have led employers to deny male employees opportunities that have been provided to working women. Sometimes they subject men who are primary caregivers to harassment or other discriminatory treatment. For example, some employers have denied male employees’ requests for leave for childcare purposes even while granting female employees’ requests.

Employers are permitted by federal law to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions.

But employers may not treat either sex more favorably with respect to other kinds of leave, such as leave for childcare purposes, according to the US EEOC.

To avoid a potential violation, employers should carefully distinguish between pregnancy-related leave and other forms of leave, ensuring that any leave specifically provided to women alone is limited to the period that women are incapacitated by pregnancy and childbirth.

If you are eligible to take FMLA leave under the Family and Medical Leave Act, the leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement.

Make me take pregnancy leave before I'm ready?

2009-03-07T18:33:00.000-08:00

Q. My boss has told me that since I'm "so far along" with my pregnancy, I have to start leave next week. I have already been out a week because of gestational diabetes, and I was able to go back with my doctor's blessing. I'm not ready to go on leave, and I need the extra money before I have the baby. My boss also says our company policy says I can't come back to work for six weeks after I have the baby. I'm afraid I will lose my job. Can my boss really do that?

A. No. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth, according to the US EEOC.

Pay me less because of seniority system?

2009-03-07T18:23:00.000-08:00

Q. I am a female truck driver, and I have been employed by the company for 6 months. I just found out that a male truck driver is being paid more than I am. I asked my boss about this, and he says he makes more than I do because the company has a written seniority system as part of a collective bargaining agreement with the union. I think this violates the law. Can my boss really do that?

A. It depends. This can be tricky, because it could be considered sex based discrimination if the seniority system is not a bona fide seniority system.

To be a bona fide system, it must not have been adopted with discriminatory intent. According to the EEOC, it also must meet other criteria:

1) It is an established system containing predetermined criteria for measuring seniority, merit, or productivity;

2) It has been communicated to employees; and

3) It has been consistently and even-handedly applied to employees of both sexes.

And of course the system must in fact be the basis for the compensation differential.

According to the EEOC, the Equal Pay Act permits pay differentials when they are based on a bona fide seniority system, merit system, incentive system (in terms of quality or quantity of production), or any other factor other than sex. These are known as "affirmative defenses" and it is the employer's burden to prove that they apply. This defense has failed when applied inconsistently.

The right of employees to be free from discrimination in their compensation is protected under federal laws, including the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.

Count my maternity leave as FMLA leave?

2009-03-07T18:04:00.000-08:00

Q: Can the employer count my time on maternity leave or pregnancy disability leave as FMLA leave? Can my boss really do that?

A. Yes. At the time of this post, pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition. The employer may count the leave toward the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation, according to the US Department of Labor.

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Can My Boss Really Do That?

2009-03-07T17:32:00.000-08:00

I hear this question daily. Workers want to know their rights at work, but often don't know where to begin to find out. And the answers are usually elusive. Workers want a black and white answer in a grey area. Usually the answer to almost any workplace question is "it depends." But every once in a while, we have what we call "black letter law," and I will include it when I can.

Why is it so hard to get a straight answer to such a seemingly simple question? It depends on the facts, which usually differ from one side's perspective to the other. It depends on the state of the law, which is constantly changing. It depends on the information available to you when you are asking the question. And even on how well you can convey the information, to tell your story, if you will.

Sometimes you can find out the answer to your question by doing some research, yet some workplace questions require complex legal analysis that should only be handled by an attorney after a detailed inquiry. Some of the factual scenarios you will see in this blog have been taken directly from enforcement guidance or case law. Others may be responses to reader questons in an effort to provide general information. If we answer your question, we are not providing you with legal advice or representation. Because the laws (and links) change constantly, the information on this blog, while accurate when posted, may become outdated as time passes. Caveat emptor.

While this blog (or its author) cannot provide legal advice to you for a specific factual situation, we can point you toward some of the legal principles that apply to employees in this country and give you some resources to begin your quest of finding out the answer to the elusive question - can my boss really do that?