Las Vegas Injury Lawyers Blog

By 1938, the Great Depression had wrecked a lengthy and widespread economic havoc on the country. Pressured to give the working populace some relief, President Franklin Roosevelt enacted the Fair Labor Standards Act (FLSA). No longer could businesses financially exploit their workers to make a profit. No longer did workers have few to no rights regarding their workplace conditions. And for the first time, a minimum wage, overtime pay, and child labor standards were law, applicable to any employee (low-level, management, and executives). Businesses who violated these laws could now be penalized and sued.

Almost a century later the FLSA still stands, but while most are familiar with its basic rules, many are unaware of the nuances within the FLSA. One nuance applies to gender equality.

Regardless of whether a job is done by a man or woman the amount of pay for a job is determined by its job requirements. Under the Equal Pay Act (29 U.S.C. § 206.), a 1963 amendment to the FLSA, men and women are to receive equal pay for equal work. However, businesses can compensate men and women workers differently if the pay differences are not based on gender, but on a "bona fide seniority system, merit system or incentive "system.

A system is bona fide if the following criteria are met:

• The system is not implemented with a purpose to discriminate for gender reasons, and
• Specific criteria that are used to assess the worker's productivity, merit, or seniority are ... determined prior to the pay disparity, the reason(s) for the pay differences, properly communicated to the entire work force, and applied equitably to all workers.

Any seniority pay increases that do not meet these criteria must be justified. If it is determined the pay increase was arbitrarily applied, it can be a violation of the FLSA.

Additionally, if the business implements a merit pay system, workers should receive periodic performance evaluations that objectively asses the worker's accuracy, efficiency, and ability of preset criteria. Performance evaluations cannot be solely based on management's subjectivity.

But if a business does not have a bona fide system, it is not automatic that a worker has a punishable FLSA violation. Businesses are given the opportunity to prove that though there is no bona fide system, any difference in pay is still not based on gender, but other factors which are germane to the requirements of the job, providing specific benefits to or further the business, or enhancing an employment practice within the business. Additionally, the business is still required to show these factors are applicable to all their workers regardless of gender and that workers have knowledge these factors are used in determining pay.

Factors not based on gender that have been used to validate pay differences for men and women are:

• The workers' have different experience, education, training, and skills.
• The worker generates more revenue for the company.
• The job is performed on the 2nd or 3rd shift, is part-time, seasonal, or temporary.

Continue reading "The Equal Pay Nuances to the FLSA" »

Under Title VII of the Civil Rights Act of 1964 and the Nevada Fair Employment Practices Act (NV Rev. Stat. Sec. 613.310et seq.), Las Vegas employers with 15 or more employees may not discriminate against their employees on the basis of sex or sexual orientation/stereotyping. As of October 2011, Las Vegas employers also are prohibited from discriminating based on gender identity. For federal and state purposes, sexual harassment is sex discrimination. Two of the biggest obstacles in any sexual harassment case are 1) defining what sexual harassment is, and 2) sufficiently proving that sexual harassment occurred.

What is Sexual Harassment?
"I know it when I see it." These words, uttered by Supreme Court Justice Potter Stewart in describing his test to determine what is and is not pornography, can also be aptly applied in describing sexual harassment - the person allegedly harassed knows it when they see or feel offended.

The victim can be the person directly harassed, or someone offended by the conduct. Additionally, the harasser can be a fellow employee - supervisor or co-worker - or someone who has a business relationship with the employer - agent or client.

Generally acts of sexual harassment fall into two categories:

Quid Pro Quo: A person in a position of power makes sexual demands on another person by or through direct or overt pressure.

Hostile environment: The work environment allows unwelcome sexual behavior that creates an offensive, hostile, or intimidating workplace, affects the victim's employment, or unreasonably interferes with the victim's work performance.

Sexual harassment generally includes the following type of behavior:
1) sexist statements or behavior that insult or degrade one's gender; for instance, making sexual comments about another person's body parts or appearance, telling lewd jokes, or divulging sexual anecdotes.
2) unwelcomed or inappropriate physical or verbal seductive behavior, such as sharing or posting sexually inappropriate images, making sexual gestures, touching, or asking questions about one's sexual history or orientation.
3) sexual bribery or coercion, which includes a promise of reward for engaging in or threat of punishment for not engaging in a sexual activity.

Proving Sexual Harassment
The burden of proof to prove sexual harassment occurs is always initially with the alleged victim. In addition to showing an act or acts of sexual harassment occurred, the victim must also demonstrate that they are part of a class protected against sexual harassment, a complaint (preferably in writing) was appropriately made to management or followed the employer's stated chain of command in such situations, and that the employer failed to act on the complaint. Once the victim meets this burden, to avoid damages, a Las Vegas employer must show the complained upon acts did not constitute harassment or were not sexual in nature, the victim was not a member of a protected class, no or an insufficient complaint was made, and the Las Vegas employer properly acted on the complaint.

While sexual harassment may occur without economic injury to or discharge of the victim, economic injury - firing, suspension, demotion, and relocation - and other forms of retaliation -ostracization, coworker harassment, and undesirable changes to job duties - towards the victim are also prohibited. A separate cause of action for retaliation is available to the victim, and if proven, can strengthen the victim's sexual harassment case.

Continue reading "Sexual Harassment is Sexual Discrimination" »

The workplace needs to be one of the most secure environments individuals interact with. The reason is that unlike a public park or street we are not free to come and go as we please. The workplace for most Americans confines us to a limited area for a certain amount of time and we are obligated to be there. It is for this reason that a hostile environment that is filled with any form of harassment must never be allowed to flourish. It is this sanctity that led a jury to award Ashley Alford $95,000,000 in what has become one of the largest sexual harassment cases the United States has seen.

As American's most of us enjoy a work environment that is free from sexual advances from our bosses or inappropriate comments but not every work environment lives up to this standard. In fact some business travel down a very dark road filled with denial and turning a blind eye. It is this attitude and mentality that is the most threatening to American prosperity. It is a problem that cannot be tolerated now or ever for it will directly affect our financial future and moral paradigm.

If we take a look at the actions that were allowed to take place we can quickly see the immense impact of allowing such behavior to continue elsewhere and why it must be stamped out. Ms. Alford was given a job working for Aaron's, a rent-to-own retailer, and while it may not be anyone's dream job she enjoyed working for the company. The trouble started after she had been working there a while when her boss would make lewd comments to her. Ms.Alford was offended by such comments and found them repulsive but was unable to stop the advances. She found herself in a difficult and terrible situation where she could not see an exit. Her boss held her livelihood in his hands and would not stop the sexual advances towards her and company officials were not there to help. The situation became much worse when her boss turned his comments into acts and walked up behind her and while she was sitting placed his penis on her head. However this was only a prelude to when he would eventually hold her down against her will, lift up her blouse and proceed to pleasure himself over her.

Eventually Ms.Alford reported the incidents to a hotline but received no reply or relief. In fact what she got was almost as harsh and as cold hearted as the victimization she had been faced with her boss; she was denied opportunities to advance.

This behavior is unacceptable on every level and in every way. Employees cannot freely leave a situation that has become hostile or dangerous, least they risk losing their livelihood. When a company refuses to offer recourse for such dangers a great travesty is posed, "Is this suffering worth more than losing my shelter, food and transportation?" These are questions no one should ask and protecting the safety of our workplace is protecting the safety of our economy.

A full article can be found here: Jury awards $95 million in Fairview Heights sex harassment suit

Our law firm does not represent anybody in this incident. The commentary is for educational purposes only. If you or someone you know has been a victim of a hostile work environment and would like to speak to someone about your rights, contact our lawyers for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.

A lawsuit was filed against a major U.S. health insurer named Cigna, early in March of this year, for $100 million dollars by a veteran manager claiming company policy blocked her from promotions and higher paying jobs based on her gender. Brenda Karp worked for Cigna for 14 years and last year was denied a promotion because she "came across to aggressive" in an interview. After she complained to the company, they responded by taking away some of her territories.

The company is charged with violating the U.S. Civil Rights Act and the Massachusetts state law banning gender discrimination. The lawsuit takes issue with a forced system that "limits managers to categorizing a certain percentage of employees" and ranks them using a bell curve. The lawsuit contends this "bars female employees from better and higher-paying positions which have traditionally been held by male employees."

The full article is featured on Reuters.com: Lawsuit Charged Cigna With Gender Discrimination.

Continue reading "Health Insurer Charged with Gender Discrimination" »