Employment Law Cases

Organizations are increasingly recognizing the significant costs associated with high levels of employee absence. At the same time, managers are often unsure about the level and nature of the problems they may be facing, or about how these problems are most effectively addressed. Normally we can classify absences into two types, namely short-term and long-term. The success of an organization lies in the effective management of the resources and their employee’s leave rate. An organization can adopt a number of methods to manage absence effectively. Some of them include the effective and accurate monitoring of leaves, defining targets for level of absence and providing a clear and concise absence policy document for employees.

Absence Management policy

While dealing with policies, especially for employees, an organization should take care of many things. The policy should be clear so that every employee can understand the underlying rules. It should also contain information such as the person to whom they consult immediately if they need a leave, at what time they must contact the manager, and where should the worker go to get further support. A good absence management policy should contain a clearly defined rule for sickness leave. Sickness leave plays an important role in absence management, since in most organizations employees are misusing the sickness leave option.

Managing absenteeism and sick leave

To tackle absenteeism effectively, an organization must have an absence management policy that allows the organization to detect and address the situation early to avoid short-term absenteeism becoming long-term absenteeism. We can manage absences only if we can find the real cause behind it. Research has indicated many of the strategies for overcoming excessive absenteeism tend to have short-term effects only. We can reduce the number of single day sickness leave by requiring a valid medical certificate. Another way to manage absence is by ensuring the employee is aware of the organization’s policy on absenteeism. The employee should be contacted periodically and in turn should maintain regular contact with the employer.

Benefits of outsourcing absence management

Since the absence of employees in an organization adversely affects its profit, companies come up with new technologies to tackle and manage absenteeism. Outsourcing of absence management has become a widely accepted method for managing the employees and their leaves. Need for an absence management tool in an organization is directly related to the current absence management techniques followed by an organization. Current techniques used for handling long-term absence, short-term absence and their impacts will be the effective inputs for better control of absence. Using these tools, an organization can easily track and manage their employee’s leaves and in turn improve the efficiency and productivity of the organization. Hence in an organization, it is essential to have a well-defined and well-structured policy for better efficiency and growth.

Under the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990, and the Age Discrimination Employment Act (ADEA) of 1967, discriminatory practices and behaviors in the workplace are forbidden. One common form of employment discrimination is harassment, both sexual and otherwise.

The American Heritage Dictionary defines harassment as: “the act of irritating or tormenting persistently.” In a work environment, harassment can take many forms: racial slurs, offensive language, or unwanted sexual contact, to name a few examples. The Equal Employment Opportunity Commission defines illegal harassment using several criteria:

- Enduring offensive conduct or behavior becomes a condition or term of continued employment, or

- The offensive conduct is or becomes severe enough to create a work environment which any reasonable employee would consider intimidating, hostile, or abusive.

Despite legislative efforts to curb harassment in the workplace, the problem is still widespread. In many sexual harassment cases, for example, victims who speak out after being harassed become the targets of ridicule and retaliation, and are ostracized from their friends and co-workers. As a result, many victims are afraid to bring their situation to light. This creates a serious problem for victims, advocates, and law enforcement. Although the law makes retaliatory behavior against someone who reports a case of harassment illegal, cases alleging retaliation are often difficult to prove, due to the nature of the retaliatory behavior.

Of course, harassment does not always occur in a sexual manner or context. A perpetrator can be almost anyone - a co-worker, a boss, an agent of the company, or sometimes even non-employees. Perpetrators also go about their activities in different ways. Some may be direct and attempt to bully the target into submission, and others may count on their sparkling reputation to shield them from suspicion. Nor is harassment necessarily physical. Environmental harassment, such as a workplace filled with discriminatory images or propaganda, is also common. In all cases, it becomes difficult for the victim to protect him or herself. Furthermore, the target of the harassment is not necessarily the only victim. People around him or her may also suffer from the offensive behavior. Under law, any of these people can speak out against the illegal behavior, even if they have not been specifically targeted.

Most advocates for non-discriminatory work environments agree that prevention is the best option. Harassment is less likely to occur when employers educate their employees about the consequences of such behavior and provide a clear recourse for victims of harassment. Employees are also encouraged to communicate clearly and frequently with their employers. Any incidents of harassment should be reported to a supervisor or manager immediately, to prevent the pattern of behavior from escalating.

If you would like more information regarding how the law views harassment in the workplace, the resources provided by Los Angeles Employment Lawyer Perry Smith at http://www.losangeles-employmentlawyer.com may be helpful.

One of the common issues that arises in a Defense Base Act (DBA) claim is determining the correct average weekly wage (AWW) of the injured claimant. Generally, AWW is calculated by first determining if the claimant worked substantially the whole year prior to the injury. If so, was this work with the same employer or, at least, similar employment? If so, the wages are simply calculated, divided by 52 and an AWW is determined. There are several problems which rear their ugly heads, such as: what constitutes “substantially the whole year” and what type of job qualifies as “similar employment”. According to cases decided under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 37 weeks is the benchmark for the term “substantially the whole year”. Therefore, if you have worked 37 out of the last 52 weeks, you may qualify.

If it is determined that you have not worked substantially the whole year preceding your injury, the LHWCA gives several alternatives to determining your AWW. These involve determining if you are a five or six day employee and what your daily rate of pay turns out to be.

Now that you have the background of the LHWCA, let me tell you where the problems arise. First, most people who choose to work in Iraq, Afghanistan or other areas where defense bases are located, choose not to be there for an indefinite time. Therefore, most claimants in Defense Base Act (DBA) cases, do not work substantially the whole year before their injury at the wages paid overseas.

Secondly, insurance carriers are making a conscious effort to establish the date of injury at the earliest possible date. This does not necessarily coincide with the date of disability. Therefore, an injured worker may continue to serve his employer overseas only to see his much lower stateside wages be factored in to his AWW. In one case that I had, the injured worker had a problem with his lungs. This arose from the horrible air quality in Kabul, Afghanistan. One doctor there attributed this to toxins, including airborne fecal matter, in the air. My client first saw a doctor in September but did not stop working until the following August. Instead of getting credit for trying to work, the insurer is contenting that, because he only worked for two months overseas, his stateside earnings should be used to determine his AWW. The claimant’s stateside earnings were about half of his earnings in Afghanistan. We argued that, because the employer put the employee at risk and paid him accordingly, he was entitled to the higher AWW. This is not a novel theory; it has been put forth in many DBA cases but the issue has still not been finally decided. I had one case where the insurer calculated my client’s wages at less than $300.00 per week.

As you can see from articles throughout the internet, insurers are doing everything possible to cut expenses and reap huge profits from the tragedy in Iraq and Afghanistan. Where do they draw the line? Should the OWCP and our courts allow this travesty of justice? The answer of course is “NO” but how do we prevent it?

We prevent it by fighting back. Every one of the thousands of individual injured under the DBA should look into whether the insurer is paying the proper amount in wages. Please do not under any circumstances think the insurance companies which handle these claims are going to be fair to you. For the most part, they are going to do all that they can do to see that injured workers are going to be paid as little as possible. They do this in a number of ways but it all starts with the average weekly wage.

Anyone who is currently receiving benefits or even those who received benefits in the past should determine whether there AWW was calculated properly. Under the LHWCA, there is a provision which provides that if no method contained in the Act can fairly calculate a person’s AWW, then the OWCP or and Administrative Law Judge should do so. I take this to mean that ones safety, risk and sacrifice should be taken into account. You have already taken the risk. You should be compensated for it.

Cost and privacy are the two major issues that have the cab drivers up in arms. “Our people feel that the camera is going to be used to discipline drivers,” says Mohamad Alsadi, a national representative of the Canadian Auto Workers Union. Drivers were told that the cameras would cost between $700 and $1,000, but the price has climbed to $1,500. Drivers have been charging an extra 5 cents surcharge on all fares to help fund the cameras, but the difference in cost will have to be paid by drivers/owners of the cars.

As a result of the protest and a subsequent city council meeting , the date that drivers are required to have cameras installed by has been moved to July 2, 2008. The mayor threatened that taxi drivers would risk having their licenses lifted if they refused to have the cameras installed. In the meeting, mayor O’Brian stated, “The key issue in terms of my decision-making was related to public safety. A secondary issue was the safety of the drivers.” This slightly thoughtless statement may explain why a large number of drivers believe that the bylaw is discriminatory. Following the meeting, the mayor’s office released a statement to clarify his comment about public safety. It said the cameras are for the benefit of both the public and drivers equally, and the mayor apologized for any confusion his comments may have caused.

Advantages of taxi security camera include protection for the drivers, deterrent for potential violence, and prevention of robberies. According to Stats Canada for the period 2001 to 2005, cab driving was the most dangerous work-related job in Canada. Cab drivers work all hours of the night and in all neighborhoods. They put themselves at the mercy of their passengers. Between 2001 and 2003, crimes against Manitoba city taxi drivers dropped 79% after security cameras were installed and mandated by the city. At the same time, the cameras monitor driver behavior as well. Passengers aren’t the only ones with the potential to act out of line in a taxi cab. Drivers can also be guilty on occasion. Taxi cameras help to ensure that cab drivers carry out their duties in a professional manner. In cases where violent confrontations or robberies do take place, in-cab security cameras can provide valuable video evidence for criminal investigations.

The drivers union claims they won’t cave on this issue and have not ruled out the possibility of a strike. The city council representative stated that the drivers concerns of cost and privacy are being addressed, but as it stands the bylaw will be enforced starting July 2, 2008. Ottawa residents may find it difficult to find a cab come July.