How Not to Enforce the Minimum Wage Laws

Posted on March 26, 2009 by Tom Crane

The Wage and Hour Division of the Department of Labor.  WHD enforces the federal minimum wage law.  Its supposed to, anyway.  Turns out, as we pretty much knew anyway, they do not.  A study by the General Accounting Office finds that 9 times out of 10, WHD misses the boat.  The GAO used undercover agents to pose as employers and employees to test the efficiencies of the system.  They found numerous omissions, oversights and plain lack of caring.  

In one case, WHD failed to investigate a complaint that under-age children in Modesto, California ere working during school hours at a meatpacking plant with dangerous machinery.  Some WHD investigators even freely admitted that they dropped cases when the employer failed to return phone calls.  In many instances, when the employee would complain, the WHD investigator would simply remind the employee that they can file suit. 

The terrible thing about that is minimum wage workers are just that, minimum wage workers.  They do not have money to go and hire a lawyer when WHD fails their duty.  And, truthfully, low wage workers often do not have enough money at state to justify a lawyer taking their case on contingency.  $500 can mean everything to an average worker, but that is not nearly enough to justify many lawyers taking the case on contingency.  

The study addressed another issue I have heard from many clients over the years: reaching WHD over the phone requires a heck of a lot of patience.  In the study, some 76% of phone calls went to voice mail.  As I have heard many times, WHD is not good at returning phone calls.  

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Fairness Only Counts in Horseshoes

Posted on March 24, 2009 by Tom Crane

 Many times over the years, I have been asked or told that what the employer did was not fair.  The employee will tell me how they were fired with just one warning.  The employee explains that the employee handbook clearly says the employer must have three written warnings "before they can fire you."  

"Well," I reply in my calmest voice, "those employee handbooks are usually not binding."  If they contain provisions that this handbook is not binding or is not a contract, then the handbook is not binding.  That means the handbook's requirement of three written warnings is not binding.  I then go through the various other possibilities regarding how three written warnings might be binding.  As usual, none of those other possibilities apply to the average employee.  So, yes, I must tell the employee, those requirements for three written warnings mean nothing.  They are not binding.  "Yes," I add, "an employer can fire you with one written warning, or even with no  written warning."  

This is known as "at-will" employment."  At-will employment is the general rule in Texas and most other states.  An employer can fire a person for a bad reason or for no reason.  There are only a few very limited exceptions to at-will employment in Texas.  At this point, I always add, that at-will employment may not be fair, but it is the law in Texas.  

At some point, I explain that the other side of the coin is that an employee can quit whenever s/he wishes.  But, somehow, I do not think that is what they wanted to hear......

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Fired Because of Sex: Is it Fair?

Posted on March 19, 2009 by Tom Crane

 Title VII of the Civil Rights Act prohibits discrimination based on sex.  But, the Supreme Court has said that does not truly mean "based on sex."   Oncale v. Sundowner Offshore Services concerned some oil rig workers who harassed a fellow male employee in a sexual way.  But, they did not want or intend a homosexual relationship.  We now know that Oncale did not in any way find that harassment based on homosexuality was covered by Title VII.  Many court decisions since Oncale make that clear.  

But, is that fair?  More importantly, is that what Title VII says?  If an employee is fired because s/he will not participate in homosexual activity, is that fair?  Or, is it fair if an employee is fired because s/he does participate in homosexual activity?  Fairness is hard to find in the law, often times.  As lawyers, we have to look at what the law says, not necessarily what is fair.  If Title VII prohibits discrimination based on sex, then why does that not apply to all discrimination based on sex? 

A client of mine was harassed by a supervisor who was probably homosexual.  He harassed my male client in a sexual manner, grabbing his buttocks and making sexual innuendo.  The male supervisor almost certainly did not seek any sort of a relationship.  But, his harassment was apparently based on sex.  My client probably is protected by Title VII.  He may have remedy in the courts.  But, what if the supervisor did want a homosexual relationship?  if the boss did want a relationship, then my client has no remedies......

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