Do you feel that you face discrimination in the workplace? Are you being bullied or pushed out of your job unfairly? A number of employees in Indiana, ranging from junior staff to those in the upper management find themselves in this situation.
Common Harassment Issues in the Workplace
While no two discrimination or harassment cases are exactly the same, there are certain common issues that can arise such as:
- Hostile Work Environment – Is a supervisor or co-worker making your job unbearable? Just because the demands of a job are hard, does not mean that you are being harassed or discriminated against, or that your work environment is hostile. You must ask yourself if you are being treated differently because you are a member of a protected class. That is to say, are they doing this to me because of my gender, race, age, national origin, or because of a disability?
- Unequal Pay – Are you being paid less than your counterparts simply because of your gender? For example, are you a woman being paid less than your similarly situated male colleague for the same amount of work.
- Unusual Work Demands – Is your employer asking you to do work that is not being demanded of your co-workers simply because of your race or national origin? This may be discrimination.
If you feel you are experiencing discrimination or harassment on the basis of your race, gender, national origin, sexual orientation, disability, age (over 40) or pregnancy, you should talk to an experienced employment law attorney immediately. There are laws that protect employees from this type of harassment and discrimination, and you should know and understand your rights.
Most companies encourage an open and inclusive work culture. However, many people are afraid to speak up or report discriminatory behavior for fear of being retaliated against. Federal laws also protect employees from retaliation if they speak truthfully and report abuses, or participate in an investigation.
Some examples of the many Federal and State laws that protect employees in Indiana include:
- Title VII of the Civil Rights Act (1964)- This prohibits discrimination because of color, race, religion, national origin or sex;
- The Age Discrimination in Employment Act (1967)(“ADEA”)- This act prohibits the age discrimination of individuals over 40;
- Civil Service Reform Act (1978)- This act prohibits discrimination by any Federal employers on the basis of color, race, religion, national origin, age, sex, marital status, disability, sexual orientation, and political affiliation;
- Sections 1981 through 1988 of Title 42 of the United States Code;
- The Americans with Disabilities Act (1990)- The act prohibits discrimination against any qualified individuals with disabilities;
- The Worker Adjustment and Retraining Notification Act;
Indiana Age Discrimination Act, IC 22-9-2-1, et seq.;
- Indiana Civil Rights Law, IC 22-9-1-1, et seq.;
- Indiana Minimum Wage Law, IC 22-2-2-1, et seq., including the Indiana Equal Pay Act;
- Indiana Employment Discrimination Against Disabled Persons Act, IC 22-9-5-1, et seq.;
- Indiana State Wage Payment and Work Hours Laws, including IC 22-2-4-1 et seq., IC 22-2-5-1, et seq., and IC 22-2-9-1, et seq.;
- Indiana Family Military Leave Law, IC 22-2-13-1, et seq.
Discrimination in the Workplace – Points to Consider
Every case is different, but if you feel that you are being discriminated against in your workplace, you must first follow your employer’s procedures to notify the employer and give them the opportunity to take corrective action. If that is not successful, then the next step may be filing a Charge of Discrimination with a Federal or State agency that enforces the existing labor laws allegedly being violated. Some of the vital points to consider are:
- Know your rights- Make it a point to know your employer’s policies are on harassment, and discrimination, as well as their procedures for making a complaint. This will give you a clearer idea about whether your company is treating you unfairly.
- Maintain records- Maintain a detailed record of emails, conversations and times as well as events related to your unfair treatment. This evidence may later be vital in proving your claim.
- Seek advice from experts- An experienced Indiana discrimination lawyer will be able to provide a free phone consultation and can give you basic information about your rights and whether you actually have a case.
- Don’t resign abruptly- While it can be very tempting to just walk out and then bring a case, you may waive potential claims if you just resign voluntarily. Always consult with an attorney and know what you may be giving up before you voluntarily leave your employment.
- Act without delay- If your feel that you have been the victim of harassment or discrimination, or that you have been wrongfully terminated due to retaliation or discrimination, there are deadlines for making a claim. The time to file a Charge of Discrimination with the EEOC (Equal Employment Opportunity Commission) is usually 180 days from the date the last discrimination occurred. However, this deadline can be extended to 300 days if the charge is covered by a local/state anti-discrimination laws. In almost all cases, you are first required to file your Charge of Discrimination with the agency that enforces the applicable law before you can file a lawsuit. This process is known as “exhausting your administrative remedies.”
If an employer has discriminated against you because of your special needs, he or she is may be violating federal law as well as state and local laws.
In 1990, Congress passed a piece of civil rights legislation called the Americans With Disabilities Act (ADA). Title 1 of this legislation specifically prohibits workplace discrimination against individuals with disabilities. Such prohibitions apply to any business that has 15 or more employees on its payroll. The ADA also offers protection to individuals such as spouses or parents who may be subject to bias on the basis of a close relationship to a person with a disability.
Four other federal laws also specify protections for psychologically or physically challenged individuals:
The Rehabilitation Act
Section 501 of the Rehabilitation Act prohibits disability-related bias by federal employers and mandates affirmative action programs that will increase the number of employees with disabilities in federal workplaces.
The Workforce Innovation and Opportunity Act (WIOA)
Section 188 of the WIOA prohibits disability-related bias on the part of any employers who receive financial or programmatic assistance under the terms of the WIOA.
The Civil Service Reform Act (CSRA)
The CSRA contains language that stipulates against disability-related bias that targets both Civil Service employees and prospective employees.
Additionally, all 50 states have laws in place that prohibit workplace bias against individuals with disabilities though in some states, these laws only pertain to workplace discrimination on the part of public employers.
What Is a Disability?
The ADA doesn’t contain language that categorizes all the physical and psychological conditions that constitute disabilities. Instead, the ADA imposes a standard: If a condition has a negative effect on an individual’s ability to carry out the routine activities of daily life, then it constitutes a disability.
The ADA’s definition includes people who’ve been impaired in the past even though they may not be impaired when they’re employed or when they apply for employment. The ADA’s definition also includes people who are able to carry out major life activities but who are affected by a condition that is typically classified as a disability. Disabilities also include injuries that may prevent employees from working in their customary capacity for a limited amount of time.
The ADA requires employers to make “reasonable accommodations” to either job duties or to the layout of a workplace that will enable an employee with special needs to do his or her job adequately. What might these accommodations reasonably include? Here are a few possibilities:
• Physical modifications such as raising or lowering the height of desks for people in wheelchairs or installing screen magnifiers on computers that are used by individuals with visual impairments.
• Moving a workstation closer to a restroom for a worker whose disability includes bladder or bowel control issues.
• Allowing a more flexible work schedule and use of leave time so that a worker can pursue medical treatments. This accommodation may also require granting additional amounts of unpaid leave time.
Under the ADA, however, employers are not required to make particular accommodations for physically disabled workers if those accommodations would impose “undue hardship.” The burden of proof will be on employers to prove that an accommodation an employee has asked for is too costly or too disruptive to be implemented. Both courts and the U.S. Equal Employment Opportunity Commission (EEOC) , which is the federal agency charged with enforcing ADA compliance, will look at a variety of factors here, including potential tax credits and the disabled employee’s own willingness to supply the accommodation or to pay for its costs.
Harassment is considered to be a type of bias whether or not an individual is affected by a disability. The ADA has language that prohibits harassment as does the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.
In its broadest sense, harassment is any unwelcome conduct that’s instigated by an individual’s race, color, sex, age, religion, place of national origin or disability. However, not every offensive remark constitutes unlawful harassment. In order to meet that standard, the offensive conduct must be a condition of continuing employment, or it must also create a workplace that a “reasonable person” would consider hostile or intimidating.
The harassing individual can be anyone who is connected with a workplace, including a company’s owner, its managers, its employees, its independent contractors or even individuals who are not employees as might be the case with a vendor who delivers inventory on a regular basis. A harassment victim doesn’t have to be the individual who’s actually subject to unpleasant behavior, either; he or she can be someone who overhears the harassment and is deeply affected by it.
Employers are liable for harassment on the part of employees over whom employers have control. They’re also liable for harassing behaviors on the part of supervisors particularly if that harassment has negative implications for employment unless employers can prove either that they tried to correct the harassing behaviors or that the employee reporting the harassment did not take advantage of corrective opportunities offered by the employer.
Protect Your Rights
If you’re experiencing an unfair workplace situation that’s related to your disability, you have legal rights, and an experienced attorney can help you protect those rights. You are looking at tight statutes of limitations, so it’s important to contact a lawyer as soon as possible. In most instances, you will need to file a charge with the EEOC within 180 calendar days of the time you were refused accommodation or were subjected to harassment. (If you’re a federal employee, that statute of limitation is only 45 days.)
A discrimination attorney can evaluate your situation and help you decide whether or not your case is worth pursuing. These claims can be difficult to prove without concrete evidence of an employer’s bias, so it’s important to work with a legal professional who can help you compile the necessary evidence. An attorney can help you negotiate with your employer to get the accommodations that are your right. In worst-case situations, if your employer isn’t willing to make the accommodations that would help you keep your job, a lawyer may be able to help you receive compensation for your employer’s unlawful actions.
Most people don’t realize that there’s a difference between employees and sub-contractors in Indiana. They don’t receive the same legal protections from the government and don’t have the same rights. Whether you’re an employee or a sub-contractor, you need to spend some time studying the rules and regulations regarding your position and become aware of your rights. If you’re a business owner, it’s even more crucial to distinguish between the two because you have some tax liabilities and obligations.
The Difference Between Employees and Sub-Contractors
Both employees and sub-contractors provide services to you and both get paid for their services. That’s the only commonality between the two types of associates. The IRS states that you can distinguish between employees and subcontractors based on three different categories and they are:
• Behavioral Control – This determines how much control you have over how the job is done. You will provide instructions, methodology, training in that methodology, and directions on how and when to carry out the job. If you have this control, the individual performing the job is an employee. If you don’t have this control and can only decide when and where the job is to be done, the person performing the job is a sub-contractor.
• Financial Control – If you have more financial control over how and when the worker is paid, how they’re reimbursed for equipment used and services rendered, and who bears the profits and loss, etc. An employee can fully expect the employer to reimburse them for wear and tear of the equipment they bring to the job. For example, if the employee drives to different locations in their personal car to perform their job, the employer can be expected to pay for the fuel, maintenance and repairs. However, the sub-contractor must pay all of these expenses out of their pocket. These expenses aren’t considered the business owner’s concern.
• Relationship between the Parties – The most significant difference between an employee and a subcontractor is their relationship with the employer. Subcontractors have written contracts for every job they do or for a fixed duration. Employees, on the other hand, have a more complicated relationship with long-term contracts, benefits, vacation pay and other such factors.
Is the Classification Important?
This classification is very important because it has an impact on how you file your taxes. Here’s a brief description of your obligations based on whether you’re an employer, employee or a sub-contractor:
• Employer – If you’re an employer to a full-fledged employee, you’ll need to pay the taxes, social security, and insurance on your employee’s behalf. You can deduct the needed amount from your employee’s salary and compensation. You will also have to pay state industrial taxes and federal unemployment taxes and potentially insurance for employees. You don’t have these obligations with a sub-contractor.
• Employee – If you’re an employee, the employer may handle your insurance, but they are responsible for paying your social security and employment tax obligationsng by withhold the amount from your salary. In return, you won’t need to concern yourself about the obligatory payments to the government, but you will take a deduction instead.
• Contractor – If you’re a contractor, you’re responsible for your own taxes, social security, and Medicare payments. However, you’re paid more because the employer doesn’t need to deduct money from your compensation to meet the obligations.
What’s a Difference Between a Contractor and Subcontractor?
Many people become confused about the difference between a contractor and a subcontractor and that’s understandable. A contractor is an entity you contract to perform a job. A subcontractor is an entity that your contractor will hire to perform a portion of the job. For example, if you want to demolish and rebuild a commercial property, you might hire a contractor to handle the task. The contractor might only handle the design and building aspect of the job and hire a subcontractor to handle the demolition and clearing of the site.
As a business owner, you’re just obligated to pay the contract amount and nothing else. If the company you hired engages a subcontractor, you have very little contractual obligation to them as the responsibility falls on the contractor.
Reporting the Earnings
As a business owner, you need to report every employee and sub-contractor you have on hand. You also need to make sure you’re classified them correctly in your contracts and obligations. The IRS is very stringent on the difference between a subcontractor and an employee. If they feel your subcontractor is an employee, you might be forced to pay more than you expected.
Once you’ve clearly distinguished between an employee and subcontractor, and made the individuals involved aware of the circumstances, you can move on to reporting their earnings through the Form 1099-MISC. This is for any miscellaneous payments of $600 or more.
What Should You Keep in Mind?
There are several factors you need to keep in mind when you hire both employees and subcontractors. Here are some factors to keep in mind:
• If you have more control over how your worker’s work, supplies, equipment, training, and you dictate the methodology, the IRS will classify the individual as an employee, even if you consider them a contractor.
• If your employee provides their own equipment and hires workers to complete the job, they’ll be classified as a subcontractor and have more flexibility.
• If you reimburse your worker for job-related expenses like travel, they’ll be considered employees.
• A written contract declaring a worker as a subcontractor might be considered as evidence by the IRS, but they can still be deemed as employees if the circumstances indicate that they are. The facts of the case matter more than the contract.
• You can ask the IRS for assistance in identifying the workers by filling Form SS-8.
It’s a good idea to hire a professional tax lawyer or legal expert if you intend to hire people. They’ll help you determine which step will be ideal for you and step up an employment system what would work for all kinds of professionals. They’ll also explain how the tax system works and ensure you remain in IRS’ good books.
In the recent case of EEOC v. Consol Energy, Inc., 1:13-cv-00215 in the United States District Court for the Northern District of West Virginia (more info), the claimant, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies’ mine in Mannington, W.V., for over 35 years. When the mining company required employees to use a newly installed biometric hand scanner to track employee time and attendance, Butcher repeatedly informed company officials that submitting to biometric hand scanning violated his sincerely held religious beliefs as an Evangelical Christian. He wrote a letter to company officials explaining his beliefs about the relationship between hand-scanning technology and the “Mark of the Beast” and the Antichrist discussed in the New Testament’s Book of Revelation. Mr. Butcher requested an exemption from the hand scanning as a reasonable accommodation based on his sincerely held religious beliefs.
Consol argued that Butcher admitted that the current version hand scanner left no actual mark; however, he testified that these scanners “are being used as part of a system of identification being put into place that will be used to serve the antichrist as foretold in the New Testament Book of Revelation and which creates an identifier for followers of the antichrist known as ‘The Mark of the Beast,’” and that “[t]he fact that a believer draws a line at the first step in what he sincerely believes to be an immoral process rather than the last step of that process does not alter the employer’s accommodation duty.”
The EEOC repudiated Consol’s attempts to poke holes in the logic of Butcher’s beliefs, contending that it is unconstitutional for Consol to demand theological accuracy or consistency. “[A]s EEOC has previously pointed out, and as the Court instructed the jury, religious beliefs need not be seen as rational, doctrinally consistent, or accurate in order to be protected under Title VII.”
The jury in this case unanimously awarded Mr. Butcher $150,000 in compensatory damages. The Court also ordered that Consol Energy must also pay Butcher an additional $436,860.74 in back pay and front pay for the Title VII violations found by the jury.
If you believe you are a victim of religious discrimination, or your employer is failing to accommodate your firmly held religious beliefs, you should seek the advice of an experienced employment law attorney. Call or request a free consultation with Goodin Abernathy’s Indianapolis Employment Lawyers.
Recently the US Department of Labor posted a story on their Facebook page about a temporary worker who was crushed to death on the first day of his job at a bottling facility.
In 2013, The Occupational Safety and Health Administration announced an initiative to improve safety conditions for temporary workers.
When a worker is employed by a temporary agency and is assigned to a specific host employer, both the agency and the host have responsibilities to ensure the safety of employees. https://www.osha.gov/temp_workers/ Unfortunately many temporary workers are injured on the job, some on their first day as in the case of the worker in the bottling facility.
The attorneys of Goodin Abernathy LLP have experience representing injured temporary workers when they are injured on the job. Even if it was your first day or first week on the job site you have rights as an employee in Indiana if you are injured on-the-job– even if you are a temporary employee. Many of our Spanish-speaking clients work for temporary agencies and have suffered injuries at work. These cases present unique circumstances and challenges for workers. If you have been injured while employed by a staffing agency and have questions, don’t hesitate to call us—317-843-2606.
Labor statistics show an increasing number of Hispanic workers are suffering work fatalities and injuries. In Indiana, Bureau of Labor Statistics show a rising trend in Latino work fatalities.
“Hispanic and Latino Workers – Occupational Injuries, Illnesses and Fatalities” – www.in.gov brochure.
Most of Indiana’s Hispanic fatalities and injuries occur in the manufacturing and construction industries. Many Hispanic accidents affecting Hispanics involve motor vehicles and equipment. In construction projects, many Latinos are injured from fall accidents. Another significant cause of injuries to Latinos involves workplace violence.
The attorneys at Legalmente Hablando Indy and Goodin Abernathy LLP regularly represent injured Hispanic workers. We are located in Indianapolis, Indiana. Many of our clients live and work around Fort Wayne, Lafayette, Bloomington, Frankfort, Auburn, Crawfordsville and Richmond. We will travel to visit clients and appear in local courtrooms.
We handle construction accidents, motor vehicle collisions, factory injuries, explosions and burns. Often we give legal advice to Hispanics about work place harassment and violence. Many of our clients are concerned about racial discrimination and immigration issues. Our experience and research address these issues showing why injured Indiana Latinos have legal rights regardless of immigration status. We speak Spanish and fight for our Hispanic clients in Indiana worker’s compensation claims and injury cases.
Hispanics work on risky and dangerous jobs.
“Immigrants Work in Riskier and More Dangerous Jobs in the United States” – PRB.org.
Employers often turn their backs on injured Latino workers because they do not respect their immigration status. The Legalmente Hablando Indy and Goodin Abernathy LLP Indianapolis attorneys open legal claims for both documented and undocumented immigrants. We explain the medical treatment options Indiana workers are owed when injured on the job. Most importantly, we care about our Hispanic clients and work to win the best recoveries the law allows.
Find more information about our Legalmente Hablando Indy at http://www.legalmentehablandoindy.com/ and check out our community involvement on Facebook at https://www.facebook.com/LegalmenteHablandoIndy.