Qualified 73-year-old faces age discrimination, can't find work

Sheila Whitelaw, a 73-year-old from Philadelphia, was laid off from a clothing business when she was 71. She has been looking for work ever since and has yet to be hired anywhere. She is a college graduate and has managed three different non-profits as executive director. She has never had trouble finding a job before.

Whitelaw believes age discrimination is the reason she has not been able to find work.

“I have really good credentials and a very varied background but have seen myself involved in age discrimination in the workplace,” she says.

Whitelaw’s husband suffers from Alzheimer’s disease and lives in a nursing home. Her income is comprised of Social Security checks and food stamps worth $35 per month.

Over the past two years, Whitelaw has sent out “hundreds and hundreds” of resumes. She has been on 15 job interviews, but none have led to a position. She says employers sometimes dissuade her from applying to jobs because of various reasons, such as physical demands on the job.

She had the opportunity to speak at the Senate Special Committee on Aging for a hearing called “Missed by the Recovery: Solving the Long Term Unemployment Crisis for Older Workers.”

“I feel very passionate about it because I don’t get a chance to talk about it. I know unemployment is high everywhere but I’m not sure people are focused on the older worker and we have a lot to offer,” she says.

The Age Discrimination in Employment Act of 1967 protects both employees and job applicants who are 40 years of age or older from employment discrimination based on age.

Whitelaw realizes that age discrimination within the hiring process is difficult to prove. Few unemployed workers pursue legal action on age discrimination.

Whitelaw says she is not certain what policy would prevent age employment discrimination. She only says, “”Life is exceedingly hard. I need to and I can work.” She is working with a social worker to find subsidized housing.

The U.S. Government Accountability Office estimates that 3.65 million older workers were unemployed or underemployed in December 2011. Younger workers have had the highest unemployment rate since the beginning of the recession in 2007, but older workers have had the biggest increases in long-term unemployment. In addition, only one-third of older workers who lost their jobs from 2007 to 2009 found full-time work by 2010. The ones who did find work, had greater earnings losses than reemployed younger workers.

Reporter/Stripper files discrimination complaint

Sarah Tressler, a 30-year-old former Houston Chronicle society and general assignment reporter, has filed a complaint alleging she was fired because of sex discrimination. Tressler was terminated because she failed to tell her employer that she has worked as an exotic dancer.

Tressler was fired from the newspaper in March because she did not write on her application that she had worked as a stripper. “I was very upset that I was fired because I had been told by many editors that I was doing a good job… There was no question on the form that covered my dancing. I answered the questions on the form honestly,” says Tressler.

Tressler’s history of exotic dancing was found out through her anonymous blog, entitled “Diary of an Angry Stripper,” which chronicled her life dancing at local men’s clubs. Her blog talks about the disgusting behavior of strip club customers, stripper lingo, and various other subjects. The Houston Press exposed her in an article called “Society Writer by Day, Stripper by Night.”

Tressler filed her discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) at a Los Angeles news conference with her celebrity attorney, Gloria Allred.

The Houston Chronicle declined to comment on the suit.

Tressler alleges in her EEOC complaint that she was fired “because my prior activity as an adult dancer was not disclosed when I applied for the job. I believe that the stated reason for my termination was pretextual in that I answered the questions that were put to me truthfully in connection with my application for employment. The true reason for my termination was discrimination on account of my gender.”

Tressler’s attorney, Allred said that after Tressler was hired by the newspaper, she seldomly worked as an exotic dancer and was not an employee of any club but only worked as an independent contractor. Since she was not an employee, she did not need to list her dancing on her application when she applied to the Houston Chronicle.

“Sarah’s work as a dancer is lawful and is not a crime,” said Allred. “It does not, has not and will not affect her ability to perform her job as a journalist.” Allred says Tressler’s termination was clearly “sexually discriminatory.” “Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female dominated occupation.”

Wal-Mart Settles in Overtime Lawsuit

According to the U.S. Department of Labor, Wal-Mart Stores Inc. has violated federal overtime laws. Back in 2007, Wal-Mart was charged for not paying overtime to thousands of employees. For the last five years, the Labor Department and Wal-Mart have been debating the amounts owed to the affected employees. Wal-Mart finally settled to pay $4.8 million on May 1st. This amount consists of both back pay and damages.

There were about 4,500 employees who were affected by this case of Wal-Mart’s illegal pay practices. These employees had one of two misclassified job roles: Vision Center Manager (VCM) and Asset Protection Coordinator (APC). Before 2007, Wal-Mart classified these job roles as exempt because they were managerial and salaried positions. This lawsuit has ultimately determined that these job roles are non-exempt. Therefore, Wal-Mart is mandated to apply all federal wage and hour requirements to employees with these newly non-exempt positions. Fortunately, Wal-Mart reclassified these positions and adjusted overtime pay practices when this lawsuit first originated.

Over the years, Wal-Mart has been charged in numerous class action cases involving overtime pay. Consequently, the company has acquired a reputation of denying workers overtime pay and other wage and hour rights. Hopefully, their dark history of violating federal overtime laws will not continue into the future. Essentially, this lawsuit has helped to reassure the American people that the U.S. Department of Labor has been very strict in ensuring that employees are given the wages they deserve.

Obviously, it is crucial to understand the differences between exempt and non-exempt employees. Exempt employees are generally classified as personnel who have decision-making and management responsibilities. Thus, exempt employees usually hold executive, administrative, or professional positions. As a good rule, employees should always be considered non-exempt unless they earn at least two times the current minimum wage and clearly meet the job duties of an exempt position. If an employer has difficulty determining exempt/non-exempt statuses, then it is suggested for them to contact competent labor legal counsel to help in their determination.

Wrongful termination lawsuit filed against Baltimore prosecutor's office

Antoinette E. Swiec, a 61-year-old white woman, is suing her former place of employment, the Baltimore prosecutors’ office, for wrongful termination and age, race, and gender discrimination in the workplace. Swiec worked for the Baltimore state attorney’s office for 25 years and was terminated in 2010. She is seeking $400,000 in compensation for wrongful termination. Swiec believes she was fired because her fellow employees were predominantly young, African Americans who she claims wanted her fired.

A spokesman for the state attorney’s office, Mark Cheshire, declined to comment on the wrongful termination suit.

Swiec’s position at the prosecutor’s office was office manager of the Firearms Investigation and Violence Enforcement (FIVE) Unit in 2010. She supervised a clerical staff made up of four African Americans who were predominantly young. She reported to Matthew Fraling III, the FIVE division chief. He is an African American in his 40s.

Swiec claims that her staff “had difficulty in conforming to the requirements of a professional workplace.” She also says that Fraling ignored any concerns that Swiec raised. In November 2010, Swiec claims that her boss suggested she become the clerical supervisor of the Economic Crimes Unit, “where she would supervise a staff that included all white lawyers and support staff of two older black clerical workers and a white investigator.”

In response to that, Matthew Fraling described the proposed arrangement as “promoting a ‘better mix.’” Swiec declined the new position and later that week she was fired by Deputy State’s Attorneys Haven Kodeck and Cynthia Jones. Her lawsuit claims that her “wrongful termination” was under the pretense that she improperly contacted a judge’s chambers. Swiec’s nephew was serving on a jury, and she wanted to meet him for lunch. However, she didn’t know when he would be free, so she called the judge’s chambers to see when the trial would break. She claims she was told to do this by a prosecutor. The judge also agreed with this advice.

“The circumstances of this alleged termination had no basis and were pretextual,” the lawsuit states, claiming there are no professional rules against such contact and that a prosecutor wouldn’t have suggested it if it were wrong. “The desire of the defendant employer was to satisfy the desires of the [FIVE] staff to see plaintiff removed as their supervisor one way or the other.”

Kodeck and Jones no longer work at the prosecutor’s office. Fraling is now doing private practice.

Hourly to Salary

If your employer is changing the way you are paid from hourly to salary, your company may be violating wage and hour laws. Many employees in California believe that it is better to receive a salary as opposed to being paid on an hourly basis. After all, there is a stigma associated with using a punch clock and tracking all of the hours you work. 

However, the truth is that it can be better to be paid on an hourly basis as opposed to a salary basis for one main reason: Overtime pay.

If you are paid on a salary basis, chances are that the company is also classifying you as exempt vs. non-exempt from overtime pay. Therefore, you are  not paid overtime for working more than 8 hour days and/or 40 hour weeks. In turn, your total compensation can be significantly reduced. 

So if it is better to be paid on an hourly basis, how can your employer change your pay from hourly to salary? The biggest misconception in California is that being paid a salary allows companies to avoid paying employees overtime compensation under the California Labor Code and/or Fair Labor Standards Act. 

The truth is that paying an employee a salary only satisfies the first requirement of not paying the employee overtime wages. The second and more important requirement involves the employee’s job duties. What is the employee actually doing on a day to day basis?

For example, suppose you are an administrative employee and your company has changed the way you are paid from hourly to salary. In order to avoid paying you overtime, your primary job duty must involve using indpendent discretion and judgment as to matters of significance that affect the company as a whole. If you are not performing duties that affect that company as a whole more than 50% of the time, even though you are paid a salary, the employer is still required under California law to pay you overtime compensation for all hours worked in excess of 8 in a day or 40 in a workweek. 

If your employer is changing the way you are paid from hourly to salary, it is important that you remain skeptical about the change in the way you are paid. Contact an experienced employment law attorney right away for free legal advice on your rights to fair pay and remember, being paid on a salary basis does NOT mean that your employer is allowed to not pay you overtime wages for working overtime hours. 

Cosmopolitan Las Vegas sued for unpaid wages and overtime

Melodee Megia, a former worker at the Cosmopolitan of Las Vegas, along with several other employees are suing the casino for unpaid wages and unpaid overtime.

The lawsuit is seeking class-action status in representing the hourly workers. This past Friday the suit was filed in Clark County District Court. The suit would potentially consist of more than 3,000 plaintiffs out of the Cosmopolitan’s 4,300 employees.

The suit asserts certain claims that were litigated in previous years against other casinos:

• The hotel required employees in uniform to change into their uniforms in a locker room but did not pay them for the changing time.
• The timekeeping system always rounded work hours in favor of the hotel/casino. The system is based on 15-minute increments, so it is possible for the employees to lose up to an hour of pay per day. Employees must punch in and out four times per day, including meal breaks.
• The employees may have lost out on overtime pay for the time spent changing into uniforms and time-rounding clock.
• Employees were also not paid overtime for when hotel guests who ordered room service were charged a mandatory gratuity. Part of this charge was to be paid to employees, but the Cosmopolitan did not include these “bonuses/commissions” in the regular pay rate for calculating overtime pay.

Cosmopolitan attorneys have only responded that they received notice of the suit before it was filed.

“The company received a notice of intent to file a class action lawsuit related to unpaid compensation for time incurred by employees while on property for donning and doffing of the employees’ required uniform and alleged improper rounding of time for hours worked. The company is in the process of evaluating the notice of intent and cannot at this time determine the potential impact of the notice of intent to sue on the condensed consolidated financial position, cash flows, or the results of operations of the company,” the Cosmopolitan said in last Wednesday’s quarterly report filed with the Securities and Exchange Commission.

The lawsuit asks that Cosmopolitan employees be paid the alleged wages and overtime they are owed and that the Cosmopolitan pay their attorney fees.

In addition to the unpaid wage and overtime claims, Melodee Megia claims that she was wrongfully fired in September because of her pregnancy.

“The stated reason for plaintiff’s termination was that she said ‘bye bye’ instead of ‘good bye’ on the telephone to a room service customer,” the suit says. “This was merely a pretext as plaintiff had been subject to harassing conduct.”

Megia believes she was actually fired because of pregnancy discrimination “and the medical costs and other inherent costs.” She was eight months pregnant when she was terminated.

Megia claims that her supervisor often criticized her for getting pregnant. At one point, the supervisor told Megia to deliver a “pleasure packet” of condoms to a hotel customer and then said, “Isn’t it too late for that? You should have thought about it before getting knocked up.”

Pharmaceutical companies sued for overtime violations

Violations of the Fair Labor Standards Act (FLSA) have become prominent in the pharmaceuticals industry in recent years. The FLSA pertains to standards in minimum wage, overtime pay, recordkeeping, and youth employment. Many pharmaceutical companies have been withholding overtime wages from pharmaceutical representatives that have been working over forty hours per week.

The Overtime section of the FLSA states: “Covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days.”

Many pharmaceutical companies have misclassified their reps as exempt from FLSA’s overtime requirement when in fact they were not. Pharmaceutical reps have begun joining together in the face of this wage injustice. For example, in January 2012, a $99 million settlement for Novartis reps, who were unlawfully deprived of overtime wages, was preliminarily approved by a federal court in New York.

Last week the Arizona law firm, JacksonWhite filed a collective action lawsuit against Otsuka America Pharmaceuticals, Inc. for not paying its employees the overtime wages they are entitled under the FLSA. The Complaint was filed on behalf of all Otsuka pharmaceutical representatives employed in the U.S. from May 2009 up to the present.

Otsuka has never paid its employees overtime wages despite requiring them to work much more than 40-hour work weeks. Otsuka’s violation of the FLSA could cost them up to two times the amount of overtime wages that Otsuka should have been paying their pharmaceutical reps over the past three years.

JacksonWhite also has a collective action lawsuit against GlaxoSmithKline, another pharmaceutical company, that is awaiting a decision by the Supreme Court. If the Supreme Court sides with the pharmaceutical reps from Glaxo, then it is probable that the Otsuka reps will also win their case and a precedent would be established for all other pharmaceutical reps.

Reps interested in participating in the Otsuka collective action lawsuit must provide written consent to join. Reps who delay joining may lose damages that are owed to them. Reps from other companies may also be able to join in this case or file a new lawsuit against the company that they work for.