ABC News is tracking this issue, and reports a great increase in age discrimination filings with the EEOC. It may be that companies are using the economy as an excuse to get rid of workers that they couldn’t fire under more normal economic circumstances.

ABC reports that “the commission received an unprecedented 95,402 complaints during a 12-month period ending in October. That's up 15 percent from the prior year. Of those, 24,582 are charges of age discrimination, a massive 29 percent increase.”

Age discrimination charges and lawsuits come under the federal Age Discrimination in Employment Act of 1967 (ADEA), which covers people over the age of 40, who work for companies that employ 20 or more people.

The filings come from a diverse collective of employers, including the Lawrence Livermore mega- lab in Berkley, California and a Whole Foods store in Florida.

Employees are winning these cases. The last couple of weeks have seen enormous age discrimination jury awards and settlements. A jury in Massachusetts has awarded an elderly donut shop employee $100,000, and an Alaska medical center just paid $200,000 to settle a case.

But don’t expect companies to just start writing checks to people over 40 who get laid off. Most companies are prepared to fight these cases. In tight economic times, companies may also be more reticent to settle cases unless the complaining party hires an attorney.

The Uniformed Services Employment and Reemployment Act (called USERRA and passed in 1994) gives veterans certain job rights that are not enjoyed by non- veterans. Among those are protections for disabled veterans, federal employees, vets seeking to go back to their old jobs, and rights into the continuation of military health care.

A few details:

USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

The law has an “escalator” provision that requires placement into the job that the veteran would have had or been promoted to except for military service, and also requires that the vet be trained into that job. If that isn’t possible, then the law requires that every effort be made to place the vet into a similar job.

Veterans on duty are to be treated as if they are on a leave of absence for company benefit purposes. This includes benefits that are tied to seniority and to non- seniority benefits.

Veterans also have COBRA- like rights in their health coverage for individually and for their families, up to 24 months. However, the vet would pay more than 100% of the premium cost.

Like most employment law, this is a highly complex area, since it exists on the interface between federal law and local employment. For a complete explanation of your rights under the USERRA, contact an employment lawyer.

The two laws always need to be read together, as well as in conjunction with state laws, by a qualified employment lawyer, to determine the rights of any agricultural workers.

Even though agricultural workers are covered under the FLSA, the MSPA, which was passed in 1983, is considered to be the primary federal labor law covering migrant workers. Like the FLSA, this law is administered by the Wage and Hour division of the U.S. Department of Labor.

The law mandates that these workers have to be given information about wages, hours, workers' compensation, working conditions, and housing at the time the worker is being recruited. Payroll records have to be kept by both the contractor and farmer, and a written earnings statement must be given to each employee.

The teeth of the MSPA is a private right of action in federal court for any aggrieved worker, allowing recovery regardless of the amount in controversy, citizenship of the parties, or whether or not the parties have exhausted their administrative remedies.

This right of action is taken against the labor contractors, and does not necessarily affect the employer farms themselves. However, under the right circumstances, the law will create a “joint employment” situation which will allow a worker to file suit against the farmer, as well as the contractor.

The MSPA requires labor contractors to register with the DOL prior to contracting any farm labor. The contractor also has to provide the DOL with proof of vehicle safety and insurance, if they are transported, and with decent housing, if housing is provided.

If you know of any migrant workers who are employed by any contractor who is not following these rules, do them a favor and contact an employment law attorney.

Under the FMLA, which passed into law in 1993, employers must grant a leave (unpaid) of up to twelve weeks every twelve months for certain family emergencies and other medical conditions.

The Bush administration had imposed some restrictions on the FMLA which Rep. Carol Shea-Porter (D-N.H.) has proposed to eliminate in H.R. 2161, which she has called the Family and Medical Leave Restoration Act. The restrictions were posted in a November 2008 DOL final regulation.

--Not allowing an employer to force an employee to use more FMLA leave time than necessary;

--Restoring the right to accrued paid leave and attendance bonuses while on FMLA leave;

-- Restore the prohibition on an employee waiving FMLA rights without review by the DOL or a court;

-- No longer forcing an employee to conform to employee leave policies prior to obtain an FMLA leave;

-- Revisiting some new timelines and definitions, including the medical certification template used to decide what a “serious health condition” is.

The second proposed bill, introduced this year (and every year since 1999) by Rep. Carolyn Maloney (D-N.Y.), would allow FMLA leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent if that person has a serious health condition.

The bills are now in committee. More on them as they move through the system.

At least, under most circumstances

Welcome to the Genetic Information Non-Discrimination Act of 2008, known as GINA. Short version: no genetic information obtained by any company can be used to discriminate against any person in employment or in providing health insurance.

GINA may very well be a solution in search of a problem, but, of course, one never knows. There is only one recorded instance of any American company using genetic information to discriminate in employment, in 2001, and the EEOC stopped it.

The idea of taking your blood to see if you are fit for a job may seem somewhat creepy. And GINA makes most instances of that action illegal and actionable. Nevertheless, blood can be tested for any number of genetic weaknesses. And there may be some legitimate, work- related reasons to do so.

Genetic testing is allowed under GINA in some seemingly very gray areas. Some exceptions in GINA that allow testing of this sort include “inadvertence” by the employer; indirectly obtaining it as a part of a wellness program; as a part of FMLA certification; and where the employer’s blood is being monitored for workplace hazardous substances.

Even under those circumstances, all of the information is to be kept confidential.
The health insurance part of GINA begins in May 09. The employment discrimination part starts in November. GINA does not affect life insurance.

If your employer is asking for blood samples, you may have a cause of action. Any questions on GINA’s applicability to your employment status should be brought to an employment attorney.

First things first, though—if you’re over 16, these special rules don’t apply to you. Also, they don’t apply if the farm is owned by the children’s parents. Other exemptions include students enrolled in certain vocational agricultural programs or who are specially trained through 4-H (etc.) on some hazardous farm equipment.

Believe it or not, you are allowed to work on a farm at an age as low as 10....

Children age 12 and 13 years of age may work outside of school hours in non-hazardous jobs on farms that also employ their parent(s) or with written parental consent. Youths under 12 years of age may work outside of school hours in non-hazardous jobs with parental consent, but only on farms where none of the employees are subject to the minimum wage requirements of the FLSA.

Youths aged 14 and 15 may work outside school hours in jobs not declared hazardous by the Secretary of Labor.

The regs list a ton of “hazardous” farm jobs, and the problem is that, on a farm, a worker may get shifted from job to job without really knowing what is allowable under each circumstance. Some of the more hazardous jobs include operating large tractors and harvesting equipment, earthmoving and trenching, handling cattle, working in a silo, and handling dangerous chemicals.

Another problem will be comparing state laws to the federal regulations, since the more stringent of the two will always apply. Only an experienced employment lawyer can guide you through that particular jungle of governmental regulations.

The ALJ in Kalkunte v. DVI Financial Services, Inc., a case decided in 2005, held that a privately-held company acting as a contractor, subcontractor, or agent of a publicly traded company can be held liable for violation of the whistleblower provisions of the Sarbanes-Oxley Act. The private company, AP Services, was acting as a “turnaround specialist” for Kalkunte’s employer DVI, a publicly traded company, which declared bankruptcy while all of this was going on.

Kalkunte alleged that the “restructuring” was actually a retaliatory discharge.

The company argued that privately- held companies do not fall under SOX. Neither the ALJ nor, subsequently, the ARB bought that argument. AP, while privately- held, was working for a public company, and so fell under SOX as an agent of DVI.

The ALJ, affirmed by the ARB, found that there was substantial evidence to support a finding of retaliation, and awarded lost wages and compensatory damages.

If you are in the Atlanta area, and think that you have been wrongly treated by your employer, contact an employment attorney.

First-- watch out for jobs that are more dangerous than you may think.

14- and 15-Year-Olds Can Work:

Outside school hours

After 7 a.m. and until 7 p.m. (hours are extended to 9 p.m. June 1 through Labor Day)

Up to 3 hours on a school day

Up to 18 hours in a school week

Up to 8 hours on a non-school day

Up to 40 hours in a non-school week

Jobs Teens Can Perform

Teens 13 or younger can baby-sit, deliver newspapers, or work as an actor or performer.

14- and 15-year-olds may work in a variety of jobs including those located in offices, grocery stores, retail stores, restaurants, movie theaters, amusement parks, baseball parks or gasoline service stations. However, they are prohibited from working in jobs declared hazardous by the Secretary of Labor.

16- and 17-year-olds can work in any job that hasnt been declared hazardous. There are 17 hazardous jobs young workers under the age of 18 are prohibited from doing. Some of these jobs include mining, meat packing or processing, using power-driven bakery machines or paper-product machines, roofing, and excavation operations. Most driving is also prohibited.

Once a youth reaches 18 years of age, he or she is no longer subject to the Federal youth employment laws.

Different rules apply to youth employed in agriculture. Different states, including Georgia, may also have different laws. If you have any questions, contact the employment lawyers at Buckley & Klein.

The complaint can be with a federal or state agency or within the company itself.
Most retaliatory acts fall short of actual firing, but, with the current economy, there may be more pressure on employers to lay people off, which usually means that the perceived weakest links will be cut first. So someone who is being retaliated against in subtle ways in the work place can suddenly be on the cutting room floor, a victim of a retaliatory act that can made to look like a bona fide business decision.

Some common examples of employees who are protected against retaliation are those who ask for accommodation under the Americans With Disabilities Act, who protest discrimination, or who take advantage of the Family and Medical Leave Act. And, of course, there is always the whistleblower section of the Sarbanes-Oxley Act (link goes to a very long article), which protects employees who accuse publicly-traded corporate employers of securities fraud or other kinds of fraudulent practices.

Also remember that the underlying act doesn’t have to ever be found to be illegal for the company to engage in retaliation, so long as the complaint is made in good faith.

More and more lawyers, it seems, are now looking for legal advice from employment attorneys.

Lawyer layoffs have been growing considerably over the last year or two, and particularly in the last few months. The blawg Law Shucks, which tracks lawyer layoffs (and is a source recently used by CNN), has the number of announced lawyer layoffs at nearly 3500 around the country, with another almost 5000 staff getting the boot as well.

But, unlike in most businesses, lawyers have a great deal of leverage when they are show the door, if they can learn to use it.

Negotiating an exit strategy from a law firm should be done carefully and with expert guidance, perhaps even in a mediation situation. How long and what form leaving a law firm takes should be subject to discussion with the firm-- but, of course, a lawyer who represents himself or herself has a fool for a client.

The problems with throwing lawyers out the door without careful planning, as if the law business was just another business, are immense. Because lawyers are always supposed to put “clients first,” the legal field creates special considerations in confidentiality, finances, and many more areas not normally associated with non- law businesses.

For instance, there is the potential of “billing creep:” assuming that the least experienced attorneys are the ones who leave first, the more expensive ones are left behind, jacking up legal fees.

There are also the cases that the attorneys who are leaving are working on. How is that transfer of knowledge and trust to another attorney in the firm effected?

The answer to these and other questions can keep an attorney employed in the office, even in a part- time position, for some time after the pink slip lands.

Starting next October, college students who have to take time off from school for medical reasons will still be allowed to keep their medical insurance benefits under the parent’ health insurance under “Michelle’s Law”, an amendment to ERISA (Sec. 714, PHSA Secs. 2707 and 2753, and Code Sec. 9813).

Michelle’s Law was passed by the New Hampshire legislature as a state law, and an effort was on to pass similar laws state- to- state, but NH US Representative Paul Hodes proposed a national law, which passed late last year, and was signed into law by President Bush.
For plan years beginning after October 9, 2009, now, group health plans cannot terminate coverage of a dependent child due to a medically necessary leave of absence before the date that is the earlier of: (1) the date that is one year after the first day of the medically necessary leave of absence, or (2) the date on which such coverage would otherwise terminate under the terms of the plan or health insurance coverage.

There are several qualifications. The student has to be full- time until the first day of the leave. The child has to be medically certified (which only becomes a rebuttable presumption that the leave is medically necessary).

In addition, the insurance company has to provide the family with an understandable description of the terms and conditions of the leave.

Other than that, coverage must continue as if the student is still in school. If you have any questions as to whether or not Michele's Law would apply to your family situation, contact the employment lawyers at Atlanta's Buckley Klein.

Ishimaru’s term will expire on July 1, 2012. He has been a Commissioner since November 2003.

Ishimaru has spent virtually his entire career in civil rights, spending time in the Civil Rights division of the US Justice Department, Acting Staff Director of the US Commission on Civil Rights, and on the professional staffs of the House Judiciary Subcommittee on Civil and Constitutional Rights and two House Armed Services Subcommittees of the US Congress.
Christine M. Griffin has served in the commission since 2006, working as an advocate for women’s rights, rights of people with disabilities, and diversity in the federal workplace, among other issues. Prior to serving as commissioner, she had worked as legal counsel to the EEOC, and also ran Boston’s Disability Law Center.

The EEOC has five commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year, staggered terms. The President designates a Chair and a Vice Chair. The Chair is the chief executive officer of the Commission. One commissioner seat is currently vacant, and there is no information forthcoming at this point about when or if that seat will be filled.

Ishimaru succeeds Naomi C. Earp, whose term as a Commissioner expires on July 1, 2010. The fourth current commissioner is Constance S. Barker.

Although no particular Commissioner can probably impact your individual rights, the lawyers at Buckley Klein are always available to answer your Georgia employment law questions.

Georgia's jury duty leave law comes in under the Official Code of Georgia Annotated at Title 15, Ch. 1; Title 20, Ch. 2, Art. 17, Part 5; Title 34, Ch. 1. Corresponding regulations for state employment are located in the Rules and Regulations of the State of Georgia at Title 478, Ch. 478-1.

The statutes and regulations, with some exceptions, make it unlawful for an employer to discharge, discipline, or otherwise penalize an employee because the employee is absent from employment for the purpose of attending a judicial proceeding in response to a subpoena, summons for jury duty, or other court order or process that requires the attendance of the employee at the judicial proceeding (Sec. 34-1-3(a) and Ga CompR &Regs 478-1-.18, Sec. 18.600). It is also unlawful for an employer to threaten any sort of retaliation toward an employee who is required to appear in court. (Exceptions below)

Time and Money: State employees are allowed to miss as much work time as the court requires that employee’s attendance, as well as reasonable travel time. The employee continues to get paid for that period.

The law has a civil penalty section, which allows a lawsuit for actual damages plus attorney’s fees. It allows both for a jury proceeding and for a direct court action for contempt, with civil judgment penalties in the contempt action.

Georgia has also enacted a law on the same topic specifically targeted for teachers.

For more information or to talk to a Georgia employment lawyer, contact Buckley Klein.

Ledbetter, who travelled with the President on the inauguration train from Philly to DC, and who also spoke at the Democratic National Convention, had sued Goodyear for unequal pay over her 19 years of employment with the tire and rubber company. She submitted evidence that men had been paid more money than she had been paid for doing the same work for the company. She claimed that she had not been aware of the pay discrepancy until shortly before she left the company, and that was why she had to file the lawsuit after the normal statute of limitations had run.

In a sweeping reform, the bill amends Title VII to allow claims brought within 300 or 180 days (depending on the state in which the plaintiff worked) of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past the pay decision originally occurred.

The new law does not only apply to equal pay cases, but expands statutes of limitations in the same way for:

“…all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973…”

The new law is retroactive to the day before the Supreme Court’s decision.

The previous White House had blocked the legislation.