Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

DID THE TAX COURT ERR IN KITE?

To contact us Click HERE

Code Section 2519 is a notoriously difficult section to apply. In 2009, I wrote on article on it for Estate Planning, and ever since I’ve been providing a lot of assistance to others on its operation. So I am always interested when a new Section 2519 opinion comes out.

In Estate of Kite, the Tax Court issued an erroneous opinion as to the applicability of Section 2519, at least in my opinion. In Kite, a husband passed away, and assets were funded into a QTIP trust for his wife. Before the wife’s death, some or all of the QTIP trust assets were transferred to a family partnership. Later, the trust was terminated, and all of its assets (including the family partnership interests) were transferred to the wife. She then sold those partnership interests to family members in exchange for a private annuity two days later. She later died before any annuity payments were received, and thus the sold QTIP assets avoided taxability in the wife’s estate based on applicable private annuity rules.

The case is helpful in context of deferred private annuities – the Tax Court upheld the exclusion of the sold assets from the wife’s gross estate. However, the Court also ruled that the distribution of the trust assets to the wife and the sale for a private annuity should be integrated under the step transaction doctrine. Once the transaction was combined, the Court found that the wife had disposed of her income interest in the QTIP trust in the private annuity sale, and thus triggered a Section 2519 gift tax on the value of the remainder interest in the QTIP.

This conclusion is suspect on more than one level:

a. First, if the Court was to disregard the transfer first to Mrs. Kite, then what occurred was a sale BY THE TRUST of its assets for a private annuity. The Court, in addressing both a reinvestment of trust assets into the family partnership and other sales of trust assets to family members, acknowledges that a sale by the trust itself is not a Section 2519 disposition of an income interest since the income interest continues in the newly acquired asset. To say that Mrs. Kite disposed of her income interest in the sale is somewhat specious, since the sale was of all of the trust assets without regard to the value of the income interest alone.

b. Second, and more importantly, the Court applies a technical and strained reading of the statute to achieve a result that was never intended under Section 2519. Section 2519 is intended to avoid a surviving spouse’s estate from avoiding estate and gift tax on assets received by that spouse in a QTIP that escaped taxation at the first spouse’s death by reason of the marital deduction. That is, the first spouse’s estate got an estate tax deduction (and thus no estate taxes were imposed) on assets going into the QTIP trust. However, Code Section 2044 imposes a cost of that tax avoidance – inclusion of the QTIP trust assets remaining at the death of the surviving spouse in his or her estate. Section 2519 was passed as a backstop to Section 2044 to trigger the tax in transactions that would in effect bypass the later taxation of the QTIP trust assets at the surviving spouse’s death. In this case, the Court has instead subjected the surviving spouse to double taxation. To illustrate this, assume that Mrs. Kite received all of the trust assets, and they were worth $1 million. Let’s also assume that the value of the remainder interest is $600,000, and that Mrs. Kite sold the $1 million in assets she received from the trust for $1 million. If Mrs. Kite had died while the $1 million was still in the trust, her gross estate would include the $1 million under Section 2044. When Mrs. Kite received the $1 million in assets, if she had died the day after the full value of the trust assets would still be in her gross estate under Section 2033 (per her direct ownership of them), and thus no estate taxes on the QTIP trust assets were avoided on the termination of the QTIP trust. This is why Section 2519 does not generally apply to principal distributions to a surviving spouse from a QTIP trust. The fact that Mrs. Kite then sells those assets for $1 million in cash does not change the result – she still has $1 million in assets subject to estate tax at her death. Now, if the termination of the QTIP trust and the sale results in gift tax on the $600,000 remainder interest as the Tax Court tells us it does, that $600,000 is taxed twice. First, under Section 2519, and then when Mrs. Kite dies. Something is very wrong here for that to happen.

Now, in Kite, there was no double taxation. But that is because the private annuity functioned to exclude the value of the sold assets and the annuity from Mrs. Kite’s gross estate. If instead Mrs. Kite had sold assets for cash or a promissory note valued at $1 million, or had lived long enough to receive the annuity payments that the actuarial tables predicted, and then she died, this double taxation would show up. The fact that the private annuity functioned to avoid estate tax on this instance is a function of the tax provisions that relate to private annuities and not Section 2519. Indeed, the Tax Court opinion gives no indication that the private annuity aspect of the sale would or should change the Section 2519 result it thought was proper, and Kite as written should apply to all sales in this circumstance, not just sales by deferred private annuity (although perhaps one could argue that it only applied to deferred private annuity sales).

The case is also bad news since it muddies the waters if a surviving spouse receives any distributions from a QTIP trust and then sells the received asset. At what point in time will the sale be far enough away from the distribution date to avoid Kite? Since Section 2519 applies to a disposition of any part of the income interest, the fact that the spouse did not receive and/or sell a substantial portion of the QTIP trust assets would not avoid the applicability of Section 2519.

There is also another facet of the case that raises a question for me. It appears that in 1997, distributions of QTIP trust assets were made to relatives of Mrs. Kite, and these were reported as gifts. If in fact such distributions were made, this should have been characterized as a disposition of a part of the income interest  of Mrs. Kite (via a reduction in trust assets that are there to produce income for the income interest holder) and triggered Section 2519 at that earlier time. If Section 2519 was triggered on that earlier date, it could not have been triggered again at the time of the distribution and sale to Mrs. Kite in 2001, and since a gift tax return was filed in 1997 it would appear that the statute of limitations for additional tax due in 1997 (as would be incurred in Section 2519 applies in 1997 to the full value of the trust) should likely be closed. Thus, Code Section 2519 should not have applied in 2001.

Kite is not all bad news for taxpayers. It provides some favorable findings and rulings on the use of deferred annuities to avoid estate taxes (assuming the annuitant does not live to his or her life expectancy). It also confirms that sales of assets by a QTIP trust do not trigger Section 2519.

I used to tell people raising questions whether Section 2519 applied to a particular set of facts that the best guide for Section 2519 is whether there is an opportunity in the current transaction to avoid estate tax on some or all of the remainder interest assets of the QTIP trust – if yes, then Section 2519 likely applies. By failing to take the purpose of Section 2519 into account in Kite, and even worse, subjecting similarly situated taxpayers to double taxation, the Tax Court did not make this “gut check” and thus may have missed the mark on this one.

Estate of Virginia Kite v. Comm., TC Memo 2013-43

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Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

You Have The Right To Discuss Salary With Coworkers

To contact us Click HERE
Many people who are trying to figure out whether they've been the victim of discrimination miss an obvious way to find out how much coworkers are making: asking them. Some employers try to prevent this by putting in handbooks or contracts a provision prohibiting salary discussions among coworkers. Those employers are, for the most part, breaking the law.

If you work for a non-government employer and aren't a supervisor or management, you likely have the absolute right to discuss your salary, benefits and other working conditions with your coworkers.

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity to improve working conditions. That means you can discuss pay and benefits with coworkers and the employer is not allowed to punish you for doing so.

Before you defy management directives and start discreetly asking trusted coworkers to exchange salary information, you should make sure you aren't exempt from this law. While the vast majority of non-government employers are covered, some are exempt. Independent contractors and supervisors are exempt. But many people classified as contractors are misclassified and are really employees. You may be protected even if you think you aren't.

Even if you're allowed by law to discuss pay with coworkers, I still suggest using some sense. Some people are offended if you ask about money. Make sure you trust the person and have a good idea that they won't mind. If it's someone you suspect is also underpaid, you might convince them to talk to you with some evidence, such as telling them that you know John Smith and Jim Doe make more than you for the same work, but you are wondering if other women in the company are also underpaid for the same work. Another time to ask is when someone is leaving. They may mind less if they're on their way out the door.

What you don't want to do is sneak into HR and look at their payroll records, hack the payroll company computers, or put a tape recorder in someone's office hoping to catch them in salary discussions. Those tactics are illegal. You not only will be fired if you're caught - you might go to jail.

If your company has an illegal policy or contract saying you can't discuss salary with coworkers, one option is to report them to the NLRB. Cases saying these prohibitions are illegal have been around way before the current issue arose about the current NLRB's makeup, so the fact that these policies are illegal won't change, no matter how optimistic employer organizations get. Even if you haven't been fired based on an illegal policy, you can file a complaint and NLRB may force your employer to change their evil ways.

If you think you're the victim of discrimination, one way to prove it is to prove you're paid less than others in a different category than you. Don't write off the easiest way to find out if you're paid unfairly. Go ahead. Take a coworker to lunch. Ask. You might be surprised by what you find out.

LLC’S ELECTING TO BE ‘S’ CORPORATIONS

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Most entities operating as ‘S’ corporations are corporations formed under state law. However, under the check-the-box rules, a limited liability company (LLC) can elect to be taxed for federal tax purposes as a corporation. With such an election, the LLC can then elect to be taxed as an ‘S’ corporation, if it otherwise meets Subchapter S requirements.

But why would anyone want to do this? How is it done? Are there any pitfalls? A recent article by James R. Hamill addresses some of these issues. A summary of the key points follows.

WHY BOTHER? Probably the main reason why someone would go the LLC route to ‘S’ status is creditor protection. Many states limit the rights of creditors of a member of an LLC to obtaining a charging order. Stock of corporations (‘S’ or not) does not receive similar protection. Therefore, an LLC electing ‘S’ status provides superior creditor protection to its owners. Since ‘S’ status does not impact state law rights as to an entity and its owners, making an election to be taxed as an ‘S’ corporation does not impact creditor rights issues.

HOW IS IT DONE? The LLC and its members could file a Form 8832 to be taxed as a corporation, and then a Form 2553 to be taxed as an ‘S’ corporation. However, Treas. Reg. Section 301.7701-3(c)(1)(v)(C) and the form instructions allow this to be done just by filing a Form 2553, without the need for a Form 8832. However, an unsigned “dummy” Form 8832 election will be needed to be filed with the initial income tax return filed for the corporation as an ‘S’ corporation.

PITFALLS? The major pitfall in this area is to make sure that the operating agreement for the LLC is modified to comply with Subchapter S requirements. The key requirement that a plain vanilla operating agreement will often violate is that prohibiting a second class of stock.  Typical LLC operating agreement provisions such as special allocations of income, gain, loss, or expense (including substantial economic effect provisions under Section 704), Section 704(c) contributed property allocations, preferential returns or liquidation rights, and provisions regarding distributions in accordance with capital accounts, will typically violate the second class of stock rules and thus need to be modified out. The article also notes that while you are engaged in modifying the standard form operating agreement, provisions regarding ‘S’ corporations that are typically found in shareholders’ agreements, such as prohibitions on transferring ownership to nonqualified owners, should be included in the operating agreement.

AVOIDING TRAPS WHEN ELECTING S CORPORATION STATUS FOR AN LLC, by James R. Hamill, Practical Tax Strategies (WGL), Jan. 2013

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