New I-9 Verification Forms on April 3

Employers will be required to use a revised I-9 form beginning on April 3, 2009, for all new hires and to reverify any employee with expiring employment authorization.

The I-9 is the form employers must use to verify employment eligibility, Employment Eligibility Verification.

The current edition of Form I-9, dated 06/05/2007, will no longer be valid for use on or after April 3, 2009, according to the US Citizenship and Immigration Services website.

You can find the new I-9 form here. The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) is being updated to reflect these changes and will be published on the USCIS website in the near future. Here are more questions and answers about the new I-9 form and requirements.

Star Tribune Settles Sex Harassment Case

Employees should never have to endure a sexually hostile work environment in order to earn a paycheck.

These words, spoken by EEOC Acting Chairman Stuart J. Ishimaru, confirm that while sexual harassment remains a persistent problem in the 21st century workplace, the federal government takes it seriously. "The US Equal Employment Opportunity Commission has a long-standing history of filing lawsuits against employers who allow sexual harassment to occur,” he added.

The EEOC sued the Star Tribune Company, alleging that The Star Tribune created a sexually hostile work environment at its Heritage Production Facility “mail room” for two named women who had filed charges with the EEOC, and a class of similarly situated women.

The women held historically male-dominated jobs of compiling newspapers and placing inserts into them.

The work environment was permeated with ridicule and insult against them, including vulgar comments, dirty jokes and sex-based statements, the EEOC said in the suit.

To settle the lawsuit, the Star Tribune will pay more than $300,000 and significant remedial relief, the EEOC announced. The suit was filed on behalf of female employees at the plant which produces The Star Tribune newspaper, one of the nation’s largest papers.

The Star Tribune also agreed to create a discrimination-free workplace going forward, which is substantial equitable relief.

The EEOC shall maintain oversight on the compliance over the decree’s two-year term. The non-monetary relief agreed to by the company includes:

An injunction against sex harassment or retaliation of its female employees in the mail room;

Employing a supervisor or manager for the mail room for every shift;

Employing a human resources representative who will have responsibility for the human resource function for the mail room, including monitoring and resolving complaints of employees on working conditions in the mail room; and

Providing annual training on preventing sexual harassment and retaliation to its mail room managers and supervisors during the decree’s term.

John Hendrickson, the EEOC’s regional attorney in Chicago, said. “When the EEOC can reach a settlement that reduces the chance of harassment occurring again, and one where no person receiving relief under the consent decree objects, it is a victory for the EEOC, the employer, and current and former employees.”

Hispanic Warehouse Workers Win $4.3 Million

B & H Foto and Electronics Corp. will pay $4.3 million to settle a federal lawsuit filed by the Equal Employment Opportunity Commission on behalf of 149 Hispanic warehouse workers who were paid less, not promoted, or denied benefits because they are Hispanic, according to the EEOC.

B & H paid Hispanics less than non-Hispanic workers and failed to promote them or provide health benefits because of their national origin, according to the lawsuit. B & H is one of the largest retail sellers of photographic, computer and electronic equipment in the New York metropolitan area.

National origin discrimination means treating someone less favorably because:

1. he or she comes from a particular place,

2. because of his or her ethnicity or accent, or

3. because it is believed that he or she has a particular ethnic background.

National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality.

Colorado Refinery Faces Safety Fines

A Colorado petrolium refinery may pay $130,500 in safety and health violations resulting from an investigation by the U.S. Department of Labor's Occupational Safety and Health Administration.

OSHA has cited Suncor Energy (U.S.A.) Inc. for safety and health violations. The petroleum refinery in Commerce City, Colo., has 384 employees.

Suncor received 26 serious violations as a result of OSHA's investigation. The investigation was part of a National Emphasis Program focusing on petroleum refinery process safety management

"Failure to follow OSHA's process safety management standard can lead to a catastrophic failure in a refinery," said Herb Gibson, the agency's area office director in Denver, Colo. "It is imperative that Suncor Energy abate these hazards to ensure a safe and healthy work environment for its employees."

The willful violation is due to the company's failure to appropriately test gas monitors for hydrogen sulfide and combustible gas in the HVAC systems for the control rooms, according to OSHA.

A willful violation is one committed with intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act.

Suncor's serious violations include numerous instances of the company's failures to:

* follow the process safety management standard for the processing of hazardous chemicals;

* address safe distances and refuge for the emergency response plan;

* provide industrial trucks which are rated for hazardous locations; and

* guard ladder way openings.

A serious citation is issued when death or serious physical harm is likely to result from a hazard about which the employer knew or should have known.

OSHA operates a vigorous enforcement program, conducting almost 39,000 inspections and finding nearly 88,000 violations of its standards and regulations in fiscal year 2008.

Employers are responsible for providing a safe and healthy workplace for their employees under the Occupational Safety and Health Act of 1970.

OSHA's role is to promote the safety and health of America's working men and women by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health. For more information, visit www.osha.gov.

Military Vet Wins Settlement

When Stephen Alasin returned from military service in the Iraq war, his civilian employer failed to return him to his job and violated federal law, according to the U.S. Department of Labor.

Ecolab Inc. will pay a $118,000 settlement to resolve a Uniformed Services Employment and Reemployment Rights Act complaint investigated by the U.S. Department of Labor's Veterans' Employment and Training Service (VETS).

Ecolab violated federal law by failing or refusing to promptly reemploy Alasin upon his return from military service, according to a lawsuit filed by the U.S. Department of Justice against Ecolab in federal court in Michigan.

"It is important for all employers to realize that the Labor Department is here to protect the employment and reemployment rights of American service members," said U.S. Secretary of Labor Hilda L. Solis.

"We owe these brave Americans every protection when they return from their military obligations," she added.

USERRA was enacted to protect service members from being disadvantaged in their civilian careers due to serving in the uniformed services. Subject to certain limitations, USERRA requires that individuals who leave their jobs to serve in the U.S. military be reemployed by their civilian employers in the same positions or comparable positions when they return.

Information on veterans' employment or reemployment rights is available at www.dol.gov/vets or by calling the Department of Labor's toll-free helpline at 866-4USA-DOL (487-2365).

Pay raise for Congress? What do You think?

Should members of Congress get automatic pay raises?

In January, they received a cost of living pay raise of 2.8%, an annual sum of $4,700, or $392 a month. Most of them receive approximately $174,000 a year in salary, plus health and retirement benefits. It's set up so that they receive pay raises unless they vote not to.

It raises (pardon the pun) some interesting questions in this age of bailouts and layoffs.

Certainly at their current pay, it is difficult to compare the Congressional leaders with the big wigs at the financial institutions receiving millions in bonuses from taxpayer bailout funds while their companies tank and lay off average-salaried workers.

But some think our leaders should also tighten their belts while their constituents struggle to keep their jobs. They think our leaders helped get us into this economic mess, and they don't deserve a raise, even a cost of living increase.

On the flip side of the coin, others consider the price many of these lawmakers pay to take on the most challenging problems in the world and wonder if they are paid enough.

What do you think?

Supervisor to US worker: "Go back to Mexico"

Wheeler Construction, Inc will pay $325,000 and other relief to settle a national origin harassment lawsuit filed on behalf of Mexican workers who worked for the Phoenix-based construction company.

The company subjected workers to harassment based on their national origin (Mexican) and retaliation for complaining about it, according to the US EEOC.

A supervisor referred to employees as “wetbacks” and “s--cs” and told Latino employees to “go back to Mexico.”

One of the workers was born and raised in Glendale, Ariz., and had 20 years of service with Wheeler Construction at the time of the harassment. When he complained to management about the harassment he was fired.

“The fact that these employees work at a construction site is no excuse for the ethnic slurs that were used against [them]," said Mary Jo O’Neill, regional attorney for the US Equal Employment Opportunity Commission's Phoenix District Office.

"We are especially concerned that the outrageous comments were made by a supervisor. Instead of stopping this behavior, the company failed to act appropriately and compounded its culpability by retaliating against its employees,” she added.

Slurs and retaliation at the workplace are unacceptable.

Colorado lawyer Kimberlie Ryan and The Ryan Law Firm specialize in discrimination law and handle similar national origin discrimination cases on behalf of Colorado workers. You can reach Kim Ryan at kim@ryanfirm.com.

Job Seekers Beware: Employment Agency Fraud Prohibited

Scams preying on the jobless are on the rise, as reported by The Denver Post yesterday.

What should you know about the law if you are working with a private employment agency in Colorado?

1. Any fee paid by an applicant to a private employment agency shall be by written contractual agreement which includes specific provisions for refunds and extended payment options. The exclusion of these options from the contractual agreement shall be explicitly stated in the agreement.

2. No fee shall be charged by a private employment agency until an applicant is placed in employment.

3. It is unlawful for any private employment agency knowingly to:

* Send an applicant to any fictitious job or position or make any false representation concerning the availability of employment;

* Send an applicant to any place where a strike or lockout exists or is impending without notifying the applicant of the circumstances;

* Conspire or arrange with any employer to secure the discharge of an employee or give or receive any gratuity or divide or share with an employer any fee, charge, or remuneration received from any applicant for employment;

* Circulate or publish, by advertisement or otherwise, any false statements or representations to persons seeking employment or to employers seeking employees;

* Fail to refund fees to an applicant where such refund is due under this law.

* Advertise or represent the availability of fee-paid positions where no cost accrues to the applicant if hired in such a manner as to confuse such position with other available positions which are not available on a fee-paid basis;

* Advertise or represent that an available position is available on a free or no fee basis or otherwise indicate that no charge or cost accrues to anyone when in fact the employer is obligated to pay a fee contingent upon the acceptance of employment of the applicant;

* Advertise for any position, including personnel for its own staff, without identifying in the advertisement that it is a private employment agency.

An agency found guilty of such a crime shall be subject to a fine of not more than one thousand dollars per conviction. Any employee of such agency found directly responsible for committing acts in violation of this section shall be subject to a fine of not more than one thousand dollars, or by imprisonment for not more than one year in the county jail, or by both fine and imprisonment.

Link to the Colorado law: 18-5-307. Fee paid to private employment agencies.

Happy St. Patrick's Day!

Happy St. Patrick's Day from Kimberlie Ryan and The Ryan Law Firm, LLC!

"Get Something On Them - Whether True or Not"

What is workplace retaliation? Instructing supervisors to “get something on them, whether true or not,” because of employees' complaints of harassment. And then firing them.

N-W Ventures, LLC subjected a class of African American restaurant and bar workers to discrimination, including racial harassment and retaliation, according to a lawsuit filed by the US Equal Opportunity Commission.

Eight black employees and others were forced to endure racist epithets and insults on many occasions, according to the EEOC's lawsuit. When some employees complained, managers retaliated against them by instructing supervisors to “get something on them, whether true or not,” and then fired them in retaliation, the EEOC alleged.

N-M Ventures LLC settled the lawsuit, and besides paying $457,500 to the discrimination targets, the company is prohibited from discriminating based on race, and from retaliating against any employee because he or she opposed discrimination. Further, the company must establish an appropriate and effective reporting mechanism for handling complaints of discrimination, and provide training for its managers and employees with respect to the law against racial discrimination and harassment and retaliation at its Las Vegas facility. The company owns several bars, steakhouses and lounges in Las Vegas, Chicago and Dallas.

It's bad enough to instruct supervisors to "get something on them," as this is usually considered retaliatory hyper-scrutiny, but to say "whether true or not" is a revolting example of retaliation. Instead, the company should have protected the workers from retaliation, investigated the reports, and fired the harassers and retaliators.

Good Advice for Workaholics

Are you a workaholic? Maybe you even take pride in that moniker and embrace it as evidencing a good work ethic.

If so, be sure to check out this great article by Karen Leland, titled 7 Worst Habits of Workaholics for some watercooler wisdom.

Ward Churchill / CU Trial Underway

Former professor Ward Churchill has sued the University of Colorado after the school terminated his employment as a tenured professor of ethnic studies.

He says they fired him because he expressed controversial views.

CU says they terminated him for plagiarism.

Interesting that the plagiarism allegations only surfaced after Churchill made the provocative statements he says referred to the workers in the financial sector "greasing the wheels of American oppression." Do you think the plagiarism allegations could have resulted from a retaliatory investigation? 9News is covering the civil trial as it unfolds this week, and the reporting is excellent.

Burger King Pays Teen Harassment Settlement

Should teenagers be subjected to sexual harassment at work?

The US EEOC says no and sued Burger King on behalf of an 18-year old worker whose manager subjected her to unwelcome touching, overt sexual advances, and frequent requests for sexual favors, according to the EEOC.

Burger King's assistant managers failed to stop the harassment or take appropriate action to do so after the young worker had reported the unlawful conduct, the EEOC said.

Burger King has elected to settle the suit rather than going to trial. Burger King will pay $85,000 in monetary damages, and the consent decree settling the suit prohibits Burger King from discriminating against any person on the basis of sex or any other protected group under the federal employment law, and from retaliating against anyone who complains about such discrimination. The agreement also requires training, and continued reports to the EEOC.

“Federal law requires employers to take reasonable steps to eliminate sexual harassment once an employee complains,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District.

“The EEOC will continue to be aggressive in litigating egregious harassment cases, especially where the employer’s failure to stop the harassment results in harm to a teenager or young adult," she added.

Assistant managers need to know that it is safe for them to go around their general manager to HR when the general manager is accused of harassment. Companies must not only adopt policies, but help to create a culture that values and rewards compliance with discrimination laws and holds managers accountable when they cross the line.

We must be vigilant about protecting our teenagers at work. Kudos to the EEOC for taking strong enforcement action on behalf of our kids.

Advance Auto Parts Settles Discrimination Suit

The Equal Employment Opportunity Commission has settled another lawsuit in the auto industry.

Advance Auto Parts failed to hire Jeffrey Scott Sanders as a sales clerk because he has cerebal palsy, the agency charged in its lawsuit.

Sanders had successfully completed an internship with the company's training program. Yet the company refused to hire him, instead hiring a less qualified applicant, according to the EEOC.

Failing or refusing to hire an individual because he or she has a disability violates the Americans with Disabilities Act (ADA).

Advance Auto will pay $50,000 in monetary relief, although it denies liability.

Advance Auto also has agreed to provide training on an annual basis to all of its managers, supervisors; to post an employee notice regarding this settlement; and to report any allegations of disability discrimination by job applicants at the company’s Norton location to the EEOC.

“Federal law prohibits employers from taking discriminatory employment actions based on myths, stereotypes or assumptions about an individual’s disability, rather than the person’s actual ability to perform the job,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, whose jurisdiction includes most of Virginia.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site.

Laid Off - Now Pay Up

Some first year lawyers recently learned that golden handcuffs can quickly tarnish.

After being laid off, the new attorneys are being pressed by Wall Street law firm Thatcher Proffitt & Wood to pay back salary advances they received to cover bar exam and start up costs, according to Legal Times. These advances were often seen as a form of signing bonus, although some firms actually provided bar fees as actual bonuses and not as loans.

When they received the advances, the new lawyers thought they would be able to pay them back from the salary they expected to earn at the firm. Little did they know that the firm would quickly implode, requiring them to scramble for jobs and repay the salary advances.

Other law firms have elected not to pursue repayment of salary advances paid to their associates, including Latham & Watkins, which laid off 190 associates last week, according to Legal Times.

In Colorado, an employer may recover expense of educating and training an employee who has served an employer for a period of less than two years if it has a contract in advance with the employee allowing such recovery. C.R.S. 8-2-113.

Kim Ryan Talks Law

Can my boss really do that? I hear this question daily. Workers want to know their rights at work, but often don't know where to begin to find out. And the answers are usually elusive. I have launched a new blog, Kim Ryan Talks Law, to address some of workers' most frequent questions in a Q & A format.

Why is it so hard to get a straight answer to such a seemingly simple question? It depends on the facts, which usually differ from one side's perspective to the other. It depends on the state of the law, which is constantly changing. It depends on the information available to you when you are asking the question. And even on how well you can convey the information, to tell your story, if you will. Sometimes you can find out the answer to your question by doing some research, yet some workplace questions require complex legal analysis that should only be handled by a retained attorney after a detailed inquiry.

Some of the factual scenarios you will see in Kim Ryan Talks Law have been taken directly from enforcement guidance or case law. Others may be responses to reader questons in an effort to provide general information. If we answer your question, we are not providing you with legal advice or representation.

Because the laws (and links) change constantly, the information on Kim Ryan Talks Law, while accurate when posted, may become outdated as time passes. Caveat emptor.

While this blog (or its author) cannot provide legal advice to you for a specific factual situation simply by blogging, we can point you toward some of the legal principles that apply to employees in this country and give you some resources to begin your quest of finding out the answer to the elusive question - can my boss really do that?

Trucking Company to Support Women in Trucking

YRC Inc. and the U.S. Equal Employment Opportunity Commission announced an agreement last week providing for an expanded recruitment program.

The agreement ends an investigation by the EEOC into YRC’s hiring practices for truck driving and dock worker positions, with respect to women, African Americans, and Hispanics.

The investigation concluded without a finding that YRC violated federal employment laws, and YRC did not admit liability or wrongdoing. The EEOC and America’s largest over-the-road trucking company expect the agreement to increase the diversity of YRC’s truck driving and dock employees’ workforce.

YRC will expand its diversity efforts and hiring programs for women and minorities. YRC has agreed to:

Expand its sponsorship of Women in Trucking, an organization established to encourage the employment of women in the trucking industry;

Continue its “Diversity Days” initiative, an innovative program bringing together community and good faith placement agencies and human resources personnel to promote minority hiring;

Enhance YRC’s recruiting efforts generally through a variety of measures to increase community awareness of opportunities at YRC for women, African Americans and Hispanics;

Provide new training to its managers designed to identify and remove unintentional yet significant barriers to hiring women and minorities into dockworker and driver positions; and

Improve the work environment for women and minorities at YRC facilities.

"Everyone recognized that certain structural and perceptual barriers still exist to hiring in the trucking industry, particularly for women," noted James G. Kissinger, Executive Vice President of Human Resources for YRC’s parent company, YRC Inc. "YRC has implemented and will continue to implement better recruiting and hiring practices," he added.

YRC Worldwide Inc., a Fortune 500 company and one of the largest transportation service providers in the world, is the holding company for a portfolio of successful brands including YRC, Reimer Express, YRC Logistics, New Penn, Holland, Reddaway, Moore, Yellow Transportation and Roadway. Headquartered in Overland Park, Kansas, it employs approximately 55,000 people.

The EEOC is responsible for enforcing federal employment laws prohibiting discrimination based on disability, race, color, gender (including sexual harassment and pregnancy), religion, national origin, age, and retaliation. Further information about the EEOC is available on its web site at www.eeoc.gov.

Denver employment attorney Kim Ryan handles similar race and sex discrimination cases in Colorado at The Ryan Law Firm, LLC, and can be reached at kim@ryanfirm.com.

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Code Word Harassment No Joke

Harassment at work comes in many forms. Even in code words. And so called "jokes."

Racially derogatory references violate federal law, even if they are not traditional explicit slurs. Harassment is unwelcome conduct that is based on race, color, sex, religion, national origin, disability, and/or age.

Harassment becomes unlawful where the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive, or where enduring the offensive conduct becomes a condition of continued employment. Offensive conduct may include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

"You people"/"BP time". The EEOC obtained $562,470 in a Title VII lawsuit against the eighth largest automobile retailer in the U.S. The EEOC alleged that shortly after a new White employee was transferred to serve as the new General Manager, he engaged in disparate treatment of the Black employee and made racial remarks to him, such as using “BP time” (Black people time) and remarking that he’d fired “a bunch of you people already.” The new GM also berated the personnel coordinator for assisting the Black employee with his complaint and intensified his harassment of him until the employee resigned. The 4-year consent decree prohibits defendants from engaging in future discrimination based on race, color, or national origin. See EEOC v. Lithia Motors, Inc., d/b/a Lithia Dodge of Cherry Creek, No. 1:05-cv-01901 (D. Colo. March 8, 2006).

"Cornelius." The EEOC filed a Title VII racial harassment case against a food and beverage distributor, alleging that the company subjected a Black employee to a racially hostile work environment when a co-worker repeatedly called him “Cornelius” in reference to an ape character from the movie, “Planet of the Apes,” management officials were aware of the term’s racially derogatory reference to the employee and an ape character from the movie, but terminated his employment once he objected to the racial harassment. See EEOC v. Dairy Fresh Foods, Inc., No. 2:07CV14085 (E.D. Mich. Sept. 27, 2007).

"Bruce Lee." A San Jose body shop agreed to pay $45,000 to settle a sexual and racial harassment lawsuit filed by the EEOC, in which a male auto body technician of Chinese and Italian ancestry was taunted daily by his foreman with sexual comments, racial stereotypes and code words, including calling him “Bruce Lee.” The company also agreed to establish an internal complaint procedure, disseminate an anti-harassment policy, and train its workforce to prevent future harassment. See EEOC v. Monterey Collision Frame and Auto Body, Inc., No. 5:06-cv-06032-JF (N.D. Cal. consent decree filed August 30, 2007).

"Reggin." The EEOC settled for $44,000 a lawsuit against a California medical clinic, alleging that a White supervisor used racial code words, such as “reggin” (“nigger” spelled backwards), to debase and intimidate an African American file clerk and then fired her after she complained. The clinic also agreed to incorporate a zero-tolerance policy concerning discriminatory harassment and retaliation into its internal EEO and anti-harassment policies. See EEOC v. Robert G. Aptekar, M.D., d/b/a Arthritis & Orthopedic Medical Clinic, Civ. No. C06-4808 MHP (N.D. Cal. consent decree filed Aug. 20, 2007).

"Crack Money." An elevator manufacturing company agreed to pay $75,000 to an 18-year-old African American welder and $100,000 to 12 other Black employees in an EEOC suit alleging racial harassment of the teen and a pattern of discrimination against African American employees at the Middleton, Tennessee facility. Harassment of the teen included calling him a “Black [S.O.B.],” telling racially offensive jokes, hiding his safety gloves, placing stink bombs under his workstation, and telling him that the vending machines do not take “crack money.” See EEOC v. Thyssenkrupp Elevator Manufacturing, Inc., Civil Action No. 03-1160-T (W.D. Tenn. Oct. 2005).

"Crack Baby." Denver attorneys Kimberlie Ryan and Whitney Traylor won a $300,000 race harassment jury verdict against Sara Lee after it failed to take adequate action in response to an anonymous posting of graffiti using the words "Crack Baby" on a cartoon purporting to depict their client.

Code word harassment should not be tolerated, and any employer becoming aware of such harassment should take immediate action to investigate, adequately discipline the harasser, and take steps to prevent further harassment.

Peaberry Coffee Wins Ruling

KUSA - Peaberry Coffee, Inc. and its franchisees are locked in a legal battle over claims of fraud, with franchisees claiming that Peaberry lied about the company's profitability to induce them to buy into an unprofitable business. Denver labor law attorney Kim Ryan talked about the case with Gary Shapiro on 9NEWS 7 a.m.

The lawsuit. Ten franchisees of the Denver-based Peaberry's coffee chain filed suit against Peaberry in 2007, alleging that they had lost millions of dollars after buying Peaberry's franchises based on company representations about Peaberry's financial condition. They also claimed that Peaberry should have told them about its plan to sell of several stores to their biggest competitor at the time, Starbucks. The franchisees also sued the law firm that represented Peaberry during the franchise process, claiming that the firm conspired with Peaberry to set up a fraudulent franchise system.

A Denver state court judge recently found in favor of Peaberry, despite finding that Peaberry provided false information to franchise buyers in 2003 in part by "actively concealing" the fact that Peaberry had not turned a profit since 1998.

After a five-week bench trial over a four month period, Judge William D. Robbins also found that during the negotiation process, Peaberry made material misrepresentations about the company's financial state in claiming that the company was in good financial condition, although it was losing more than a million dollars a year.

Surprise ruling. But in what some experts consider a surprise ruling, Judge Robbins found that it was not reasonable for the franchise buyers to rely on certain company statements outside their written franchise agreement.

Franchisees had argued that they relied on representations the company included in its marketing materials, the media, and public statements by company officers. The court agreed that several of these statements misrepresented material facts.

However, the franchise agreement contained an acknowledgment that the parties were not relying on any representations outside of the agreement, so the judge found that Peaberry's material misrepresentations in its marketing materials and in the press were not enough to award the franchisees the $24 million they sought in actual and punitive damages.

Instead, the judge ordered the franchisees to pay nearly $100,000 in royalty fees to Peaberry, as well as Peaberry's attorneys' fees and costs, which could be hundreds of thousands of dollars. Attorneys Hugh Q. Gottschalk and Andrew M. Unthank, who did not participate in the franchise deals, represented Peaberry Coffee in the court case.

What's next. The franchisees are appealing the judge's decision. Their attorney, Richard B. Podoll, filed court papers claiming 21 points of error, including his claim that the case should have been decided by a jury and not a judge to begin with. He also will seek a ruling as to possible liability of the law firm that represented Peaberry in the franchise deals, as no determination has been made at this time.

Several franchise owners have had to close their doors after spending hundreds of thousands of dollars to buy and operate franchises they say were destined to fail. Michael Noricks, owner of the Peaberry Coffee outside the Colorado Mills mall felt bad about recently having to close his store abruptly without a "heads up" to his many regular customers.

Franchise lawyers across the country are watching this case to see what happens on appeal. Meanwhile, Noricks says that he had no choice but to close his store, also noting that the franchisees "are battling for our financial lives while the appeals process ensues."

Case: Colorado Coffee Bean, LLC v. Peaberry Coffee, Inc., 2006 CV 4514 (Colo. Dist. Ct. 2009); Photo courtesy PDPhoto.org

Guidance for Stimulus Impact on COBRA

As we work our way through understanding the stimulus law's impact on COBRA, we have assistance from the US Department of Labor, which just released guidance for workers and employers this week.

At the DOL's website, you can find:

COBRA Premuim Reduction Fact Sheet,

COBRA FAQ's for Workers & Their Families,

COBRA Job Loss Posters for employers, and

Other job loss information.

I'll watch for new developments and keep you posted!

Stimulus Protects Some Whistleblowers

In addition to tax cuts and spending for jobs, the recently signed $787 billion stimulus law provides federal protections for employee whistleblowers at institutions receiving federal stimulus funds.

Stimulus Accountability. Several lawmakers think one of the best ways to achieve accountability for the institutions and corporations receiving stimulus funds is to give whistleblowers a remedy in case they get fired or demoted or otherwise discriminated against for reporting fraud, abuse, or waste in how these institutions actually spend the stimulus funds.

Remedies. Under the American Recovery and Reinvestment Act, workers who have been terminated in retaliation for their reports may recover monetary damages, reinstatement to their jobs, compensatory damages, emotional distress, back pay, benefits, attorneys' fees, expert witness fees, and costs.

Responsibilities. The stimulus law also requires employers receiving federal stimulus funds to post notices to employees of their rights under this law. It imposes strict time-lines for the government to investigate reports of abuse, and it allows workers to get their case to court fairly quickly after exhausting their administrative remedies by filing a charge with the SEC.

Federal employees not protected. Interestingly, this part of the law doesn't protect federal employees. It only applies to employees of state and local governments and private companies, who are employed by entities receiving federal funds from the stimulus. The failure to protect federal employees generated and continues to generate much controversy. Some experts opine that federal employees could witness a bulk of the fraud, abuse, or waste in agencies receiving funds.

Companies urged to proceed with caution. The fascinating thing about these whistleblower cases is that a jury can find retaliation, even if it finds that the company engaged in no fraud, abuse, or waste to begin with. If the company handles a report wrong and retaliates against a worker who has made a good faith report, the company can be liable for the retaliation even if they were not engaged in wrongdoing before. It is essential for companies to know how to spot and handle claims that might be interpreted as retaliation. Their managers and supervisors must receive adequate training, so that when they receive a worker complaint, they know the appropriate steps to take with the worker and what they should to do to report it up the chain of command and investigate.

In my legal opinion, this law signals a serious shift in employee rights.

It guarantees a jury trial and voids mandatory arbitration provisions. Many workers across this country have lost their right to a jury trial over the past several years. Instead they are required to have an arbitrator decide their case when their employers impose mandatory arbitration provisions as a condition of employment. Arbitrations can be too costly for workers even to initiate, often costing thousands to the employee even to file, versus the court filing fee of $350.

In my opinion, the right to a jury trial in this stimulus law is as important as the right to recover money, if not more. It helps to enforce the stimulus law by offering legal protection to employees who help enforce the law by exposing fraud or abuse.

I predict this law will result in significant litigation over the next few years. It will be interesting to see when the first case is filed, which I expect to occur sometime at the end of this year or early 2010.

Will the case arise when a whistleblower blows the lid off of a massive fraud on the government and taxpayers in spending the stimulus funds?

Or will it come up to define the phrase "or otherwise discriminated against." It is clear that retaliatory firing or demotion is illegal, but how will the courts interpret "or otherwise discriminated against"? Would it include involuntary transfer to another position as prohibited, for example? These are the kinds of phrases that can be litigated for several years, as all the courts across the country apply their own interpretations.

These workers may be the first line of defense in protecting taxpayer money.

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Workplace Bill of Rights - Comment Anyone?

While perusing one of my favorite blogs Workplace Fairness, I happened upon their link to what they call Workplace Bill of Rights.

Here's a snippet from the full article:

"For hundreds of years, people from all over the world have been coming to America to make better lives for themselves and their families.

Yet today we find more and more Americans are worse off than their parents, or worried their children will be worse off than themselves.

We must preserve the American Dream for current and future generations of hard-working people throughout our great nation. Pitting one group of workers against another results in a race to the bottom that we all lose.

Over 200 years ago, the Bill of Rights codified our most basic and cherished liberties as citizens of the United States. Now it's time for a 'Workplace Bill of Rights' to ensure that we have fairness and justice as working people in America."

They propose the following:

1. Employees should be treated with honesty and respect.

2. Working full-time should guarantee a basic standard of living.

3. Workplaces should be free of discrimination.

4. No working person should be without health insurance.

5. No one should have to work his or her entire life.

6. Employees should be able to leave a job with dignity.

7. Every workplace should be as safe as possible.

8. There is more to life than work.

9. Employees are entitled to work together.

In the full article, Workplace Fairness discusses each of these rights proposed and provides an on-line petition people can sign to show their support.

This is thought-provoking, and I am eager to learn more about it. I have not yet read the Workplace Fairness links for each of these principles, so I can first put down my initial thoughts and then see what they say too.

I may post a blog on each of these statements over time and see where the discussion takes us.

My vision for this blog is to provide a forum where interested individuals may comment to inspire us to keep talking about important workplace issues. I also endeavor to provide thought-provoking topics, as well as informative posts to help people understand employment law. Some posts contain my opinions, while others are straight information.

I hope if anyone is reading this, that you might be inspired to share your thoughts here too by posting a comment. You can post a comment by clicking on the "comments" link just below this discussion. Right now it says 0 comments.

What do you think about Workplace Fairness' Workplace Bill of Rights?

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Employ a Nanny? Tips at Tax Time

Nannies work in households across the country, meaning that many parents are individual employers, subjecting them to several of the employment laws that protect workers.

Recently I read an excellent article by Sue Shellenbarger, Wall Street Journal columnist, reminding us why it is important to remember the nanny tax:

"The slumping economy means more nannies are likely to be laid off and then file for unemployment benefits, drawing the scrutiny of tax regulators, attorneys say. Also, avoiding the taxes leaves nannies devoid of a safety net, including Medicare and Social Security benefits, in an era when they may need it more than ever. . .

People who pay household workers more than $1,600 a year are required to file onerous paperwork to cover Social Security and Medicare taxes of 7.65% of gross pay; federal unemployment insurance of 0.8%; state unemployment insurance, usually of 2% to 4%, and other state and local taxes. The employee’s share is another 7.65% for Social Security and Medicare, plus any state and local taxes. Many parents spend $30 to $70 a month to have a payroll service handle all the red tape."

There can be a huge cost for overlooking these taxes. Parents may find themselves hit with the nanny’s and the employer’s share of payroll taxes, plus interest and penalties, according to Shellenbarger. She adds that complying with tax laws enables parents to set aside up to $5,000 in pre-tax income for child-care expenses and notes that it also extends to the nanny Social Security and Medicare benefits.

For more information see the IRS Household Employer's Tax Guide.

Thanks to Sue for continuing to raise the consciousness on issues important to workers! See Sue Shellenbarger's book, The Breaking Point: How Female Midlife Crisis is Transforming Today's Women.

Is Retention Pay a Good Idea?

Should Wall Street brokers at firms receiving federal bailout funds receive billions of dollars in retention packages as incentives for them to stay with the companies into the future?

"Top brokers at Morgan Stanley and Citigroup's Smith Barney, which are to join forces in a joint venture later this year, learned last week that they will receive packages worth 105 percent of their annual revenue. That means a broker who brought in $2 million last year would get $2.1 million. Much of it will be awarded next year, and the remainder in 2012. The award would have to be paid back to the firm on a prorated basis if the broker were to leave before nine years. Brokers who make less money will be offered smaller packages. All told, 6,500 out of 20,000 brokers at the two firms will be offered a retention package," according to the Washington Post.

Some of those favoring retention packages consider them valid recruiting and retention tools to keep brokers from being recruited away by competing financial institutions.

Some of those opposed say they continue to reward a broken system and may even harm talented workers by restricting their job mobility.

Ever heard of Golden Handcuffs?