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In early April 2017, the 7th Circuit Court of Appeals in Chicago ruled that employer discrimination against an employee’s sexual orientation is illegal. In an 8-3 decision, the 7th Circuit held that Title VII of the Civil Rights Act of 1964 affords the same protections to sexual orientation as it does to sex.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate on the basis of race, religion, national origin, color, and sex. For many years, the 7th Circuit understood that Title VII’s prohibition on discrimination on the basis of sex excluded sexual orientation. While the Supreme Court of the United States never expressly answered this question, the Supreme Court’s recent decisions regarding sex discrimination convinced the 7th Circuit to look at the language of Title VII with fresh and modern eyes.

The Supreme Court’s decisions over the last two decades broadly interpreted discrimination on the basis of sex to include interracial marriages, sexual harassment in the workplace (including same-sex sexual harassment in the workplace), and discrimination based on gender or sex stereotyping. The 7th Circuit used the Supreme Court’s framework and analysis when reviewing Hively v. Ivy Tech Community College of Indiana.

In Hively, the Plaintiff was an openly married lesbian woman who worked for the Defendant as a part-time Adjunct Professor for fourteen years. Between 2009 and 2014, the Plaintiff sought and applied for a full-time position at Ivy Tech at least six times. In 2014, her part-time contract was not renewed and the Plaintiff filed a charge with the EEOC, believing that the Defendant was spurning her employment opportunities because of her sexual orientation.

The 7th Circuit interpreted the language of Title VII’s prohibition on discrimination on the basis of sex to mean that the Plaintiff was being disadvantaged because she was a woman and did not conform to “gender stereotypes.” Simply put, if the Plaintiff was born a man but everything else stayed the same, the Defendant would have not discriminated against her. The 7th Circuit believed allowing a policy on sexual orientation discrimination was based on assumptions about what was considered proper and normal behavior for someone of a given sex. The 7th Circuit reasoned this can no longer stand in light of the Supreme Court’s 2015 decision regarding same-sex marriages as a fundamental liberty that is protected by the Equal Protection Clause and Due Process Clause of the United States Constitution.

This is a landmark and historical ruling for the protection of sexual orientation in the workplace.

In May 2016, the Department of Labor (“DOL”) issued final rules regarding minimum overtime salary levels. The new overtime rule was intended to go into effect on December 1, 2016 and requires that nearly all salaried employees earning less than $913 per week, or $47,476 annually, be eligible for time-and-a-half overtime pay; more than doubling the previous minimum salary level. The new overtime rule also mandates that future automatic updates to the new minimum salary levels will occur every three years, starting January 1, 2020.

On November 22, 2016, a federal district court judge in Texas enjoined the Department of Labor from implementing the new overtime rule on December 1, 2016. This injunction was the result of a suit brought against the DOL by several states, business groups, and the U.S. Chamber of Commerce. The Plaintiff parties claim that the DOL exceeded its regulatory authority by substantially raising the salary threshold and providing automatic updates. The preliminary injunction will halt the implementation of the new overtime rule until the case is fully adjudicated.

Employers make take a risk by not implementing the new overtime rule on December 1, 2016. If the injunction is vacated by the district court judge or on appeal before the 5th Circuit, employers that elect to defer compliance may still have liability exposure for those employees who should have been treated as nonexempt. Employers should still have a plan to move forward under the new overtime rule, if necessary.

In May 2016, the Department of Labor (“DOL”) issued final rules regarding minimum overtime salary levels. The new overtime rule goes into effect on December 1, 2016 and requires that nearly all salaried employees earning less than $913 per week, or $47,476 annually, be eligible for time-and-a-half overtime pay. The new overtime rule more than doubles the previous minimum salary level of $455 per week, or $23,660 annually.

Under the Fair Labor Standards Act, unless designated exempt, employees must receive overtime pay for hours worked in excess of 40 hours. This was the case prior to and under the new rule. However, the new overtime rule expands the regulations for determining whether an employee is exempt. Exemption applies to employees in a bona fide executive, administrative, or professional capacity; often referred to as the “white collar” exemption or the EAP exception.

To determine exemption status, the DOL evaluates an employee based on three tests: 1. the Salary Basis Test; 2. the Salary Level Test; and 3. the Duties Test. Under the Salary Basis Test, exempt employees must be salaried, meaning they are paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed. The Salary Level Test designates that exempt employees must be paid more than a specified weekly salary level. Under the Duties Test, exempt employees must primarily perform executive, administrative, or professional duties. The Salary Level Test and Salary Basis Test do not apply to doctors, lawyers, teachers or employees in outside sales. The new regulations have also adjusted the exception for some highly compensated employees (“HCE”), who now must earn more than $134,004 (up from $100,000) and satisfy a minimal duties test to be exempt.

The primary focus of the new overtime rule is to update the threshold of the weekly compensation level needed under the Salary Level Test for an employee to be excempt; now $913 per week, or the equivalent of $47,476 annually. The DOL set the new salary level at the current 40th percentile of earnings of full-time salaried workers in the lowest wage Census Region (currently the South). In an effort to maintain this status, future automatic updates to the new minimum salary levels will occur every three years, starting January 1, 2020. The DOL did not make any changes to the duties test for the administrative, executive, professional, or highly compensated employee exemptions.

The new rule is estimated to have a substantial impact by extending overtime pay to approximately 4.2 million people who were previously exempt. These employees will either: 1. need to be reclassified as non-exempt and paid overtime whenever they work more than 40 hours in a workweek; or 2. receive an increase in their salary to meet the new requirement. However, employers will experience some reprieve. Under the new overtime rule, for the first time, employers will be able to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level, provided these payments are made on a quarterly or more frequent basis. Employers may also make a “catch up” payment. Penalties for violations of this rule could be severe and it is advisable that employers seek legal counsel before the implementation of the rule.

Circuit Court of Cook County, Illinois (September 30, 2016)

Our client filed a charge and complaint of discrimination based on sexual harassment, sex discrimination, retaliation, assault and battery against her former employer. Our client claimed that over the course of approximately 5 months, her employer made numerous inappropriate sexual comments and sexual advances towards her. Some of the claims included our client’s employer commenting on her appearance, touching her thigh, breast, and buttocks, grabbing her by the hips and pushing her head towards his lap, pulling her onto his lap and asking her to touch his erect penis, and offering to purchase her a car in exchange for sex. Our client rebuffed every instance of inappropriate sexual conduct and consequently was terminated.

After the complaint was filed, Defendants filed a Motion for Summary Judgement. This Motion was denied by the Honorable Judge and the case went to a jury trial. The jury found in favor of our client on all counts and awarded her $1,800 in lost wages, $15,000 in compensatory damages, and $135,000 in punitive damages.  
 

3.18.16

An H-1B Visa is not an immigration Visa but an alien visa that allows a foreign person to live and work in the United States for a specific employer. The employer is considered the sponsor. This is a good way for American companies to obtain legal foreign labor for specific industries.

 The H-1B Visa is only for occupations that require at least a 4-year college degree. This allows companies to get the skilled help they need, especially if it is simply not available in their area. Here are the steps that must be taken to obtain an H-1B Visa for an employee.

1.    Employer Files A Labor Condition Application

The sponsoring company must file an LCA with the Department Of Labor. This application is required to disclose wages and working conditions.

2.    Form I-29 Petition

This is the formal petition to request a worker be granted a VISA. Employers declare their need and desire to hire this person and commit to being the sponsor for a specific period as long as employment performance is satisfactory. Upon approval, the foreign worker can apply for the Visa personally.

3.    Pay Fees

There are fees associated with obtaining a visa. This fee is required for each Visa requested.

4.    H1-B Visa Personal Application

The foreign worker must apply themselves for the Visa. Asonye & Associates can help arrange the documents needed to make sure the process of applying for the Visa goes smoothly.

5.    Exemptions And Medical Professionals.

Specific professions such as those in the medical field face special regulations and rules to ensure they are qualified to practice medicine in the United States. This visa is for those that are entering residency programs. A 2-year residency in their native country after training is required but can sometimes be waived. If you need a J1 waiver in Chicago, then contact us for the help you need with this difficult process. There are other visa options available for medical staff.

Streamlining The Process

 

An attorney with experience in immigration law can save you a lot of time and money when it comes to getting a Visa. Asonye & Associates have experience in all immigration and visa matters. As a top deportation law firm in Chicago, we make sure that you get the help you need.

3.4.16

 

You just lost your job for no reason.  Or you weren’t hired and you know you were the most qualified.  You came back from having a child and you lost your job. Was this because of discrimination?

 

There are many forms of discrimination and it still happens today.  Laws make it illegal for an employer to take adverse employment action against you.  However, it can be difficult to prove.  First, let’s explore the true meaning of discrimination and what claims are out there. 

 

What Is Discrimination?

 

There are several laws that protect you and each law makes it illegal to discriminate against certain categories of people or protected classes.  You are only protected if you fall under one of these classes.  It is illegal to discriminate against someone based on age, race, color, religion, sexual orientation, national origin or gender.  Also it is also illegal for an employer to discriminate against a woman based on pregnancy, childbirth or medical conditions related to the pregnancy and/or birth. Employers also can’t discriminate against people with a disability. 

 

What Types Of Discrimination Claims Can I Make?

 

Here are some discrimination claims:

 

•Discriminatory claim is when you feel your employer treated you worse because you were a member of a protected class or category.

•An impact claim is a type of discrimination based on the effect of an employment practice.  For example, if a company has a seemingly neutral policy rule or practice in place that negatively impacts a protected class like a strength requirement that females could not meet. 

•A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.  

 

What Types Of Evidence Do I Need? 

 

Direct evidence is the best, which could be written documentation from your employer saying you need to be let go because of your age, but this is hard to get.  Other examples include verbal comments, memos, emails or a written policy.

 

Having these types of evidence is very unrealistic.  You must fit into one of these protected categories and have enough circumstantial evidence for a jury.

 

Some types of employment cases are easier to win than others such as retaliation cases.  Despite the amount of evidence you have, you will need to show that you are honest, respectful and accountable to prevail. 

 

More Questions? 

Give AA Law a call today to discuss.  We are here to help and will evaluate your case.

2.26.16

 

Are you working in an environment that makes you uneasy or uncomfortable?  Do you hear jokes and language that you feel are not appropriate?  Do you dread going to work because of this?  Harassment of any type does not belong in the workplace.

 

Defining Harassment

 

Sexual harassment is one form of harassment and includes unwelcome sexual advances, requests for sexual favors, and a verbal or physical conduct that:

 

•A person feels he or she needs to do in order to keep a job. 

•A person feels he or she needs to do in order for raises or promotions. 

•Conduct that interferes with a person’s work performance because it creates an offensive work environment. 

 

Along with sexual harassment, there are other types. Harassment is verbal or physical conduct that creates hostility toward an individual because of that person's race, skin color, religion, gender, national origin, age, or disability, and that: 

 

•Creates an offensive work environment 

•Interferes with work production 

•Limits a person’s employment opportunities 

 

What Does This Mean?

 

This can include slurs, negative stereotyping, intimidation, crude language, discussing sexual activities, using indecent gestures, sabotaging someone’s work, or any threats that relate to the categories listed above. 

 

Harassment can also be written or graphic material that shows aversion toward an individual, like sexually suggestive or racially insensitive.  These materials can be displayed on walls, bulletin boards and other locations throughout the workplace. 

 

Some important things to remember about harassment:

 

Both men and women can be victims of sexual harassment. 

•Either a man or a woman can be a harasser.  The employee who feels harassed against can be the same gender as the harasser (i.e. male harasser to another male employee.)

•A person can complain of harassment even if it wasn’t directed at him or her.  It can be directed at another person but someone else was affected by this conduct. 

•Harassment doesn’t always have to happen at work.  It can occur at company-sponsored events or between coworkers away from work. 

•Harassment situations can be peer-to-peer, supervisor-to-employee or even a third-party-to employee (such as a customer or vendor.)

Prevention is best to remove harassment from the workplace.  All employers are encouraged to complete training and other appropriate steps to prevent harassment.

 

If you feel you have been harassed and need an opinion to determine if you have a case, give AA Legal a call today.  We are here for you.

2.19.16

Former Worker Claims Yahoo Discriminates Males  

Gregory Anderson, former employee of Yahoo Inc., is suing and accusing Yahoo of sex discrimination, shortly after the company allegedly kept and hired more women workers than men. Gregory Anderson was in charge of Yahoo’s autos, homes, shopping, small business, and travel sites before his termination in 2014. Anderson is saying that his former employers, especially Chief Marketing Officer Kathy Savitt, favored female workers. Anderson’s lawyer wrote that Savittpublicly expressed support for increasing the number of women in media and has intentionally hired and promoted women because of their gender, while terminating, demoting or laying off male employees because of their gender.”  

While there is nothing wrong with wanting more women working in an industry, hiring or terminating employees based solely on whether they are male or female is gender discrimination. When Kathy Savitt began at Yahoo, top managers in the industry were 20% female, and today, just three years later, they are 80% female. Marissa Mayer, chief executive at Yahoo, instituted the 1 to 5 point ranking system by which employees are ranked, which plays a large part in determining which employees are terminated.  

Mr. Anderson’s case entails him reportedly receiving high ratings before taking a leave of absence in the summer of 2014 to study at the University of Michigan on a Knight-Wallace Fellowship, which was approved by his supervisors. However, during the Fellowship he received a call informing him that he was actually in the bottom 5% of the employee ratings, and would be terminated as a result. The lawsuit was filed in a federal court in Washington D.C., and it claims that Mr. Anderson was fired not for reasons related to job performance, but instead due to gender discrimination.

Were you wrongly denied unemployment benefits?  Did you lose an unemployment hearing?  Don’t worry.  You may still file an appeal. 

 

After The First Unemployment Hearing  

 

The first unemployment hearing is basically your last chance to get or retain your unemployment benefits.  You have the right to appeal this decision, and you will probably want to hire an employment lawyer, like AA Law, to increase your chances of winning.  

 

Do I Need A Lawyer? 

 

You can either hire an attorney or represent yourself during the appeal hearing. The process is designed for people who aren’t lawyersHowever, an attorney can beneficial and helpful to get your through this process and help ease any worries or anxiety.   

 

Your employer may have a lawyer, so you may want to consider that when making your decision 

 

What You Need To Be Prepared 

 

Remember, this hearing may be your only chance to present your side of this case, so you will want to have your best-organized presentation, which is where a lawyer may come in handy. To be fully prepared, you should consider obtaining a copy of your state claim file before filing the appeal to determine why your employer protested your claim.  The state's file may even include documents, such as employer rules and policy and write-ups sent along with their written response to the notice of claim filed. 

 

Evidence typically presented at an appeal hearing includes oral testimony from you and from witnesses along with documentation that you can use to verify your case. To receive any evidence that is in your employer's possession, you will need to ask the administrative law judge to subpoena the records from your employer If you have witnesses you feel are valuable to your case, you will want the judge to also issue a subpoena to that individual to require them to attend the hearing and testify. 

 

You will want to bring multiple copies of any documents that you want to present as evidence to be able to give to the judge and to the representative for the employer.  If you have a lawyer, he or she will be able to give you guidance on which documents you need and how to obtain them. 

 

Contact AA Law today for more information.  We would be happy to look at your case and see how we can assist you. 

Sandra Sheridan wins appeal of racial discrimination against the State of Florida 

 

In Tallahassee, Florida at the 1st District Court of Appeal, the Court sided with Sandra Sheridan in a lawsuit against the Department of Health claiming racial discrimination. The plaintiff claimed that the dismissal from her job was in violation of the Civil Rights Act of 1992, which protects citizens from being fired based upon race.  The state attorneys claimed that Sheridan’s lawsuit was filed too soon and did not give the federal Commission time to find probable cause of her dismissal. Judge  Stephanie Ray wrote that the premature filing did not deprive the Commission of its ability to fulfill its duty. Sheridan’s case will now be considered yet again by the lower court in Leon County.

Despite new rule about first securing employment, interest in J-1 Program on the Rise 

Foreign exchange students have a growing interest in being able to come to the United States to study abroad. The summer J-1 Visa gives students around the globe the opportunity to come to the United States and study and work to gain valuable experience in their particular fields of study. 

Irish officials, for instance, say that attendance at preparatory events to prepare students for the J-1 Program has been massive. Also, Usit, the student travel body, hosted a recent event in Dublin where U.S. based companies such as Bubba Gump’s Shrimp Co. and Rainforest Café conducted Skype interviews. Events such as this would make it possible for students to secure the employment that is now necessary to obtain the J-1 Visa.

November 12th, 2015

Discrimination Lawsuits: Taking Preventative Measures

According to the EEOC, a total of 88,778 workplace discrimination charges were filed in 2014. Discrimination lawsuits are often expensive, extremely disruptive to workflow, and damaging to employee morale. In order to achieve a discrimination free workplace, companies should always make an effort to foster a workplace culture that encourages diversity, safety, and acceptance. In addition to this, there are a few preventative measures you can take that can help avoid discrimination in the workplace, keeping your employees happy and protected.

As a preventative measure, outlining specific antidiscrimination policies in a company handbook not only informs employees of expected behaviors, but can also serve in the company's favor in the event of a lawsuit. Your company handbook should stress that there is a zero tolerance policy when it comes to sex discrimination, race discrimination, age discrimination, and sexual orientation discrimination and should also outline the disciplinary consequences that will follow any claim. It should also be made clear that retaliation is also a form of discrimination, and that following the outlined procedures is the only way the situation should be handled. Lastly, if the claimant is unhappy with the results of their claim, an appeals process should be allowed and attended to.

While having specific company policies on discrimination outlined in a handbook is a good idea from a legal point of view, it is very probable that not all employees will take the time to read through the policies. Therefore, it is wise to put all employees, including supervisors, through training that will inform them of what is considered acceptable behavior and language for the workplace. Managers, especially, should go through extensive training that will prepare them to recognize and prevent situations that may eventually lead to discrimination lawsuits. Hands on training should be provided to those who have been tasked in handling complaints so that they take the proper steps in dealing with the situation. In addition to this, employees should be provided with multiple ways to file a complaint so that interaction will not have to occur between the claimant and offender.

If you are in need of representation in a discrimination lawsuit, please contact Asonye & Associates at 312-795-9110, and find more information about our services here.

November 9th, 2015

Every person has a legal right to feel comfortable and free of unwanted sexual advancements in their place of work. Sexual harassment is defined, according to the Employment Equal Opportunity Commission as behavior of a sexual nature that:

 

  •     Affects your employment
  •     Unreasonably interferes with your performance at work
  •     Creates a work environment that is intimidating, offensive, or hostile

 

If you believe you have been sexually harassed in your workplace,  you might want to take the following course of action:

Immediately after the incident or as soon as possible, write down exactly what happened. Note the exact verbiage used, if any, or write a thorough description of any unwanted sexually charged actions that took place. Also note any witnesses, how you reacted to the incident, or anyone you may have shared the information with. The fresher in your mind the better.  

It is best that you inform the harasser that their actions were inappropriate. This is best done through email as it creates proof that the harasser was informed of their unwanted behavior, and may even elicit an incriminating response from the recipient.
Your next step should be to inform your supervisor or Human Resources representative. Again, a written document noting the exchange should be accompanied by any face to face meeting. If the harasser happens to be your immediate supervisor and you do not have an HR representative, report the incident to your supervisor’s boss. Request to fill out an official complaint.

If, after these actions are completed, you would like to file a lawsuit for your case, call an employment discrimination lawyer immediately. We at Asonye & Associates have over 20 years of legal experience and will guide you through every step of this difficult process.If you have questions about your rights, please do not hesitate to call us at (312) 795-9110 or send us a message.