Working and Surviving: What Your Clients Need to Know About Employment Law

For Survivors of Domestic Violence

and Sexual Assault

17th Annual Ending Sexual Assault and Domestic Violence Conference

December 1-3, 2015

McKenzie Cantrell, Employment Law Attorney

Kentucky Equal Justice Center

About Kentucky Equal Justice Center

We are a statewide organization that was formed in 1976 as an administrative and lobbying arm of the civil legal aid programs.

We still have ties to Legal Aid, but we perform work that Legal Aid may not be able to perform due to funding restrictions.

We have 4 attorneys who specialize in different areas and advocate for policy changes in Frankfort.

KEJC’s Employment Law Project

Educate

I provide community education in English and Spanish to any group that requests it.

Wage Claim Clinic every 3rd Wednesday at Maxwell Street Legal Clinic in Lexington

Litigate

I specialize in wage and hour law (minimum wage and overtime violations) and human trafficking.

Advocate

I advocate for working families at the state and local level. (Ex: minimum wage)

Disclaimer

This presentation is designed to give general advice on workplace rights.

The law is this area changes a lot, and your client’s situation is unique!

Please contact me at 502-333-6019 to discuss your client’s situation specifically.

Pre-Employmen

t Rights

Applying for a Job Telling the truth on job applications and during interviews

Lying during the pre-employment process can be a reason for termination.

• Discrimination-protected classes:

Race, sex, national origin, ethnicity, family status, disability, religion, veteran/military status, age (over 40)

Applying for a Job

Drug Testing Pre-employment drug screening is legal. Drug

screening during employment must follow employer’s policy.

Criminal Background Check Employers can request conviction records for

felonies and most misdemeanors committed within five years of the request. Ky. Rev. Stat. § 17.160. Employers have no access to applicants/employees expunged criminal records. Ky. Rev. Stat. § 431.078.

Credit Check Employer must have permission! Under the Fair

Credit Reporting Act, the employer must disclose if prospective employee not hired because of credit.

Practical Considerations for Clients

If your client has a criminal record:

Advise them to be truthful but also strategic about how they approach this topic with a potential employer.

Focus on the positive-length of time and current choices that have made since that event to make them a good candidate for employment

Practical Considerations for Clients

If your client has a criminal record, you may want to recommend they look into expunging the record.

Expungement “seals” or wipes clean the conviction from someone’s criminal record.

Five year waiting period from the end of the sentence or probation

Must pay certification fee for KSP and filing fee for petition

Almost only misdemeanors, but law changes frequently

Practical Considerations for Clients

Being courteous and respectful in the job application process

Dressing appropriately

Having all necessary paperwork ready

Having a resume with contact information and relevant work experience

Social media concerns

Rights During

Employment

Minimum Wage and Overtime

Minimum wage is $7.25 per hour.

Employees must be paid at least the wage that was promised to them.

Regardless of immigration status!

Tipped minimum wage is $2.13 per hour, but employee still must earn an average of $7.25 per hour.

No tip pools or salaried restaurant workers

Minimum Wage and Overtime

Overtime is “time and a half” for any hours over 40 in the same week.

Kentucky has 7th day overtime.

Exemptions include agricultural workers, domestic workers and salaried employees.

Minimum Wage and Overtime

Employees must be paid on time for all work performed.

What is work?

The law does not define work, but it is any activity that benefits the employer!

Advise clients, especially immigrants and clients with irregular schedules to record all hours worked!

Misclassification-An Infographic

Kentucky is an “at-will” employment state: At-will means that an employer can terminate an employee at any time for any reason, or for no reason at all, as long as it is not an illegal reason.

4 exceptions to ‘At-Will’:

ContractsDiscriminationRetaliationUnion

Contracts

A written or spoken agreement, concerning employment, that is intended to be enforceable by law.

Written contracts are best!

Discrimination

Title 7 and KRS Chapter 344: No employee may be discriminated against on the basis of race, sex, ethnic group, age, disability, or religion (and in some counties, sexual orientation).

Sexual Harassment is a type of sex discrimination.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Pregnancy Discrimination

The Pregnancy Discrimination Act prohibits unfair treatment of women because of their pregnancy.

Requires 15 or more employees

Client could be pregnant, not pregnant, or have just given birth and be protected from discrimination.

The law prohibits employer from discrimination in any aspect of the terms or conditions of employment.

Affordable Care Act may allow additional protections for breastfeeding in the workplace.

The Family Medical Leave Act

Eligibility:

Has worked for the employer for at least 12 months

Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and

Works at a location where the employer has at least 50 employees within 75 miles.

The Family Medical Leave Act

LEAVE ENTITLEMENT Eligible employees may take up to 12 work weeks of

UNPAID leave in a 12-month period for one or more of the following reasons:

The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;

To care for a spouse, son, daughter, or parent who has a serious health condition;

For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or

For a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

Retaliation It is illegal to fire employees because they filed a charge of

discrimination, because they complained to their employer about discrimination on the job, or because they participated in an employment discrimination proceeding. 

It is illegal to fire an employee because he or she complained about a safety issue in the workplace.

Advise that clients write down every incident at work that could be retaliation or discrimination.

Organizing a Union The law gives employees the right to act together to try to

improve their pay and working conditions or fix job-related problems, even if they aren't in a union.

Employees have the right to join together with co-workers to address issues at work, with or without a union.

Employees are guaranteed the right to form, join, decertify, or assist a labor organization, and to bargain collectively through representatives of their own choosing, or to refrain from such activities.

The law forbids employers from interfering with employees in the exercise of rights to form, join or assist a labor organization for collective bargaining, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not interfere with employees in the exercise of these rights.

Safety in the Workplace

Safety is a team effort, but it the employer’s responsibility to maintain a safe workplace.

Falls are the most common workplace injury.

Encourage employees to report unsafe working conditions.

A clean, safe working environment improves productivity!

Workers’ Compensation if injured on the job

Employment Disability Reasonable Accommodations under the ADA

A “disability” under the ADA is anything that interferes with a major life activity.

When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation."

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Employment Disability Example C: An employee tells his supervisor that he would like a new chair

because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer.

The employer may request documentation that proves that employee has an ADA disability, if the disability is not “obvious.”

Employers should respond as expeditiously as possible to a request for a reasonable accommodation.

For Victims of Domestic Violence

A survey of 8,000 women found that those experiencing physical intimate partner violence lost:

7.2 days of work-related productivity

33.9 days associated with household chores, child care, school, volunteer activities, and social/recreational activities.

The Toll on Productivity

About 130,000 victims of stalking in a 12- month period reported that they were fired or asked to leave their jobs because of stalking.

About 1 in 8 employed stalking victims lost time from work because of fear for their safety or because they needed to get a restraining order or testify in court, More than half these victims lost five days or more of work.

The Costs for Victims

The Centers for Disease Control and Prevention estimates the annual cost of lost productivity due to domestic violence is $727.8 million (in 1995 dollars), with more than 7.9 million paid workdays - the equivalent of more than 32,000 full time jobs - lost each year.

Laws

KRS 421.500 (8) A victim or witness who so requests shall be assisted by law enforcement agencies and attorneys for the Commonwealth in informing employers that the need for victim or witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. (Intercession law)

Victims of crime only?

Laws

Regulations for victimized TANF recipients to have a self sufficiency plan. Family Violence Option waives the work requirement. KAR 2:006 § 25.

What could be done?

Prohibit discrimination and retaliation for survivors

Additional leave to recover from violence

Time off to attend court appearances

UI benefits for survivors

Require workplace education

Safety Planning in the Workplace If client is experiencing stalking, harassing, or physical assaults at

work, steps can be taken to reduce the impact of this conduct.

Assess the workplace for security

Safety plans need to address the particular workplace, and every workplace is different.

Is workplace public?

Is there security?

Do employees work together or isolated?

Is parking lot or other common areas safe?

Has staff received training on intruders?

Safety Planning in the Workplace Familiarity with workplace policies is VERY important.

Leave policies, disability policies, collective bargaining agreements, sexual harassment policies, and domestic violence or workplace violence policies can all be helpful.

Encourage clients to have a plan if they need to disclose dv history to employer.

Confidentiality-may be difficult to implement safety plan

What does employee want employer to do?

Post-Employment

Rights

After Termination Unemployment Benefits

Standard is “misconduct related to the work” makes someone ineligible for UI.

Voluntarily leaving job with good cause attributable to the employer will receive UI.

Discrimination and constructive discharge can make employee eligible for UI.

Employee has to follow UI program rules, and there are many.

After Termination Employer policies are important even after job separation.

Employer must:

Pay any wages owed within 14 days.

Pay for any medical or other reimbursements under benefits used during employment.

COBRA-employer must notify that employee can stay on that health plan for 18 months at employee’s election and cost.

Job separation is a qualifying event to shop for Kynect coverage.

After Termination Employer can not defame employee to other employees or other

employers after departure.

Employer cannot interfere with efforts to seek new employment.

Employer can give a positive, negative or neutral reference to a potential employer but must be truthful.

Where to direct clients for help?

Minimum Wage and Overtime Issues: Kentucky Labor Cabinet

(502) 582-5226

United States Department of Labor 1-866-4USWAGE (1-866-487-9243)

Workers’ Compensation: Refer to private attorney

Discrimination: Kentucky Commission on Human Rights

1-800-292-5566

Equal Employment Opportunity Commission 1-800-669-4000

Misclassification Refer to private attorney

Where to direct clients for help?

Kentucky Equal Justice Center

McKenzie Cantrell, Employment Law Attorney

(502) 333-6019

Contact Maxwell Street Legal Clinic

Daniel Welsh, Financial Literacy Specialist

(859) 233-3840

Questions?