Problems to Avoid when Hiring Seasonal Workers

by Isaac Benmergui, Esq on November 24, 2017

Seasonal help wanted‘Tis the season for seasonal employment. While temporary employees can help you make deadlines and provide seamless service during the busy holiday season, it can also open your company up to new problems if it’s not done right.

Seasonal employees are still employees. Keep in mind that just because these employees won’t be around after New Year’s doesn’t mean they don’t have all the same rights as regular employees. All employment laws all still apply, except for FMLA, which has a requirement of 1,250 hours worked in 12 months. They need to understand how to report discrimination, sexual harassment, and how to ask for workplace accommodations if the need arises.

Be clear about the conditions of employment. Even in at-will employment states, it’s a good idea to get it in writing from the seasonal employee that they know they are temporary, that they have been hired for a limited duration, and can be terminated at any time.

Determine overtime needs. Non-exempt employees receive overtime pay with some exceptions, including seasonal amusement or recreational establishments, organized camps, and religious or nonprofit educational institutions. Review your seasonal employees’ status to determine if they are eligible for overtime.

Review benefits policies. Seasonal employees don’t get all the same benefits as regular employees, but may be eligible for some benefits. If employees work 30 hours or more a week for more than 120 days, for example, the employer is required to offer health care under the ACA.

Develop telecommute policies. If your business allows you to utilize seasonal workers without bringing them onsite, you’ll need clear policies and procedures for working from home, as well as determining if their status is an employee or independent contractor.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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 Woman Who Flipped off Trump’s Motorcade Fired for Violating Company Code of ConductVirginia resident Juli Briskman wasn’t at work, or on her way to work, when President Trump’s motorcade passed her bicycle. She didn’t take the photo or post it to her own social media initially. But once the photo went viral, Briskman reposted the photo. And she did inform her employer that the cyclist flipping off the President was, in fact, her. That was on a Monday.

By Tuesday, she had lost her job due to posting “obscene or lewd things” on her social media account and therefore violating her company’s code of conduct. That was her employer’s right, since Virginia is an at-will employment state, meaning a company can let you go at any time for any reason or even for no reason at all.

Briskman said the act was impulsive and in the moment, but said didn’t regret her actions at all. What did anger her, however, was that another coworker had been discovered calling another commenter on Facebook “a f**king Libtard *sshole” but was allowed to remove the comment and keep his job.

Social media policy is a moving target and constantly changing with new technologies; it’s not possible to cover every situation, such as an employee caught expressing themselves on their own time, or comments made to other people on other websites. However, the most important thing employers can do is to make sure that any policies they do have are being enforced in an equitable way. Censuring one employee for obscenity but excusing another based on political affiliation opens you up for legal action.

Social media policy generally deals with what employees post on their own, and doesn’t usually dive into the specifics of what happens if your photo goes viral without your consent. What would have been the right way to deal with this scenario? Since one employee had already been allowed to delete the offensive material and continue on, that same action should have been taken with the second.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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The Role of Forced Arbitration in Enabling Sexual Harassment in the WorkplaceThe hashtag #Metoo helped women around the entertainment industry, the United States, and all around the world find their voices and expose sexual harassment. But many women couldn’t join in making their voices heard, because of forced arbitration.

Forced arbitration came into the spotlight when Bill O’Reilly was unseated by sexual harassment complaints, and it’s something that affects many American workers but isn’t talked about. Most employees sign their Seventh Amendment right to a trial by jury away when they agree to work for their employer, and never think about it again. But if you do have a complaint against your employer, how does forced arbitration affect your likelihood of having justice served?

Let’s use the example of sexual harassment of assault at work. If you signed a forced arbitration agreement in exchange for employment, then you will not have the right to a trail by jury, even if a criminal act was committed. Instead, you go before a single judge, who most likely looks a lot like your abuser. The rules of court do not apply, the rules of evidence don’t apply, and you have limited discovery. This means the employer can talk to witnesses, other employees, and anyone else involved in the indicdent. They are given all the documents related to the case. You, the employee, don’t get any of this. Employees lose these cases at the rate of 80 percent, and those who do win are generally forced to sign a nondisclosure agreement so that no one else finds out, and they receive much less than they would in a jury case.

The harasser is protected, the company is protected, and the victim generally does not continue to work there and may not be able to find a job in that entire industry in some cases. U.S. Sen. Al) Franken has introduced the Fairness in Arbitration Act in congress, which would “prohibit a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.”

 

 

 

 

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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Employment Lessons from Firings at Tesla

by Isaac Benmergui, Esq on November 21, 2017

TeslaIn mid-October it was discovered that electric carmaker Tesla had fired hundreds of employees. Both current and former employees allege the firings were retribution for actions the employees took in attempting to form a union at the automaker. Tesla has also been accused of engaging in discrimination through a controversial confidentiality policy. The carmaker says the firings were related to performance reviews, and not any employee’s opinions or views on unions.

Telsa’s CEO Elon Musk has maintained that the firings were the result of extremely high standards on performance reviews, and says only 2 percent of the company, or around 700 employees out of 33,000 were let go.

However, now the union of United Automobile Workers, the National Labor Relations Board, and the Alameda County Superior Court are all looking into allegations surrounding the firings.

Employees who were terminated maintain that they were pro union and never received any negative feedback related to performance. Coworkers say they were generally the highest-paid in their field. Another employee also said that Tesla initiated a supplemental performance review days before the firings in order to justify them.

Other employment law specialists speculate that the firings were framed this way to avoid the appearance of economic hardship to investors and stockholders.

One risk of labeling a termination as performance related is defamation. In a public firing like the ones at Tesla, the employer is saying all 700 workers had poor performance, which, regardless of Tesla’s self-evaluated high standards for performance, labels them as substandard employees and jeopardizes their ability to gain employment elsewhere.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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sexual harassmentSexual harassment includes unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Sometimes it’s easy to spot, sometimes it’s subtle, but either way the effect is the same. But even though one-third of women have experienced this treatment in the workplace, only one-third of those reported it. Why?

The numbers speak for themselves: only 15 percent of the women who reported sexual harassment in the workplace felt their report was handled fairly. A change in the role and attitudes of the modern field of Human Resources may be able to shed some light on why that is.

“I think the average worker expects that human resources is there for them and in their corner,” said human resources consultant Laurie Ruettimann, who spoke in a recent NPR interview following sexual harassment and assault claims against movie mogul Harvey Weinstein. “But that’s usually not the case. Today, traditional HR departments are meant to indemnify organizations against lawsuits. So if you go to your human resources department, chances are what will happen is that they will be in the corner of your company.”

This explains why so many women feel like reporting harassment or abuse in the workplace gets them nowhere, and may even be used against them later. HR is there to keep the lawsuits away, not stand up for employees. “Nowadays, companies are automatically triggered to respond almost as if they’re fake lawyers. And so they do investigations, but oftentimes, what happens is that these things get quashed or they trust that the employee will be cynical and eventually quit,” says Ruettimann.

So what can you do if you experience harassment and feel obliged to report before it happens to another woman? After all, that’s the main reason most women risk reporting. First, you should check your employee handbook and do your due diligence as an employee. Go through all the recommended steps. Document everything along the way—where and to whom you report, who is present, what was said, and any retaliation you experience.

Remember that those to whom you report the harassment are there to protect your employer. Be prepared for them to: discourage you, shame you, question you, implicate you, insist it was a joke, imply you aren’t pretty enough to be harassed, imply that the offender does this to everyone and the majority just ignores it, bring up past events, or your behavior. It’s all been done before.

After you have gathered some evidence, including details of the original instance, meet up with an employment attorney. They can look at what you have and advise you on next steps, or act as an ally in helping you take action against a dangerous manager or coworker who is preying on women.

It’s sad to think that any company would keep someone around who is abusive towards others, no matter what their position. But with documentation and an ally in your corner, you can make the workplace safer for all women.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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