Swope Health Services hit with class action lawsuit for failure to pay overtime to employees

The Paulus Law Firm has filed a class and collective lawsuit against Swope Community Enterprises and Swope Health Services on behalf current and former community support specialists. The class action lawsuit pending in the Western District of Missouri alleges that   Swope Community Enterprises and Swope Health Services misclassified community support specialists and clinical social workers as exempt under the Fair Labor Standards Act (“FLSA”) and failed to pay these workers overtime as required by law.

The former and current employees claim that they were required to work approximately sixty to eighty hours a week without just compensation. The FLSA requires each covered employer to compensate all employees for services performed and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. If you’ve been forced to work off the clock or have been misclassified as exempt, call the Paulus Law Firm at 816-581-4040 to speak to an attorney.

Be Careful When Posting About That Great Night Out On Facebook

Just three weeks ago, the 6th Circuit ruled that an employee's Facebook posts can be used to establish as evidence of an employer's honest belief that there was a fraudulent FMLA claim, even if the claim was real.

In Jaszczyszyn v. Advantage Health Physician Network, the Plaintiff/Petitioner had worked for the Defendant/Respondent for a year and a half and began taking intermittent FMLA leave due to a back injury sustained ten years earlier. Long story short, Jaszczyszyn attended a local festival, consumed a few adult beverages, and posted photos on Facebook from the event. Jaszczyszyn was friends with several coworkers on Facebook and these "friends" saw the photos and reported the incident to Jaszczyszyn's supervisor. Shortly thereafter, Jaszczyszyn was terminated and later filed suit for retaliation and FMLA interference.

Without getting down into the weeds of the Court's ruling, the Court ultimately found that the Defendant could form the "honest belief" that Jaszczyszyn was not disabled in the way she claimed and was fraudulently taking FMLA leave.

So why does this decision matter? Well, if you are smart about what and when you post, it does not matter at all. But if you are someone who loves to post pictures of drunken escapades on the town and wild dance parties, stop. If you are that person and plan on calling in sick every day after one of those nights out, seriously stop. Unless of course you do not want to keep your job.

While this decision is outside of the 8th Circuit, the reasoning is sound and there is no reason to believe it would not be adopted in-circuit. Take a lesson from Jaszczyszyn: be really careful who your "friends" are and do not think that you are so clever that you can trick your boss into time off, sick leave, or whatever else. Failure to heed this advice means you just might find yourself looking for a new job and probably some new "friends."

If you have any questions about wrongful termination, retaliation for taking FMLA leave, or anything related, please call Jordan Bergus at the Paulus Law Firm for a free consultation.

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Jordan Bergus
Attorney
Paulus Law Fim, LLC
(816)-581-4043

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.

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Jordan Bergus
Attorney
Paulus Law Firm, LLC

Ex-CSC Employeee Sues Over Unpaid Wages, OT Pay

by Dan Rivoli

Law360, New York (April 14, 2011)--A former employee at information technology giant Computer Sciences Corp.'s Kansas Operation center hit the defense contractor with a class action Thursday for denying workers wages and overtime pay for work done off the clock.

Jennifer Tommey, a former consultant and account services assistant, accused CSC of denying nonexempt employees who are paid hourly at an Overland Park, Kan., facility wages for work-related activities performed during lunch breaks, and before and after their shift, according to a complaint filed in U.S. District Court in the District of Kansas.

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If you believe that you are not being paid for all the hours you work, Please contact the Paulus Law Firm at 816-581-4040.

Appeals Court Overturns Injunction Keeping Lee's Summit Twins in School

Yesterday the 8^th Circuit Court of Appeals overturned the Western District Court’s grant of a preliminary injunction that allowed Lee’s Summit twin brothers to stay in School. In the case titled S.J.W., et al. v. Lee’s Summit R-7 School Dist., et al., the brothers challenged their 180 day suspension for creating a bullying website. The twins argued that the suspension was a violation of their rights to free speech. The trial court agreed to halt the suspension until a trial could be had on the merits of the case. The 8^th Circuit overturned that decision stating that the district court’s findings did not support the relief granted and that the twins were unlikely to succeed on the merits under the relevant caselaw.

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Ryan M. Paulus

Attorney

Paulus Law Firm L.L.C.

Age Discrimination Summary Judgment Overturned

 

In Acevedo-Parrilla v. Novartis Ex-Lax, Inc. Docket 10-2276, October 10, 2012, the 1^st Circuit Court of Appeals overturned the district court’s grant of summary judgment in an age discrimination in violation of the Age Discrimination in Employment Act claim. On appeal the Appeals court noted that inconsistencies between the Company’s stated reasons for dismissal and the Plaintiff’s performance record together with that fact that the company took no disciplinary action against the Plaintiff’s younger replacement for similar conduct was sufficient to show pretext. The Court held that there was sufficient evidence presented on summary judgment from which a jury could draw the permissible inference that the Company’s claimed reasons for terminating the Plaintiff were pretextual and that the decision was a result of discriminatory animus.

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Ryan Paulus
Attorney
Paulus Law Firm

Kansas Supreme Court Upholds Noneconomic Damage Cap in Tort Cases

In Miller v. Johnson (No. 99818), a case handed down just this past Friday, the Kansas Supreme Court upheld the constitutionality of the Kansas Tort Claims Act.

The KTCA caps noneconomic damages in tort claims to $250,000. The trial jury returned a verdict $325,000 excess of this amount, but the trial court set it aside in favor of the statutory cap. The opinion is very lengthy and does not break down easily into component parts, but it appears that the KTCA is here to stay for good. Long story short, the Court said that the legislature's imposition of limits in awards does not violate the separation of powers, in that it does not invade the province of the jury. On the plus side, the Court did reinstate $100,000 for future medical expenses.

Aside from the noneconomic cap, the KTCA also imposes a punitive damages cap of $5,000,000 at best, depending on the circumstances.

For information on how this decision may affect you, please give us a call at the Paulus Law Firm.

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Jordan Bergus
Attorney
Paulus Law Firm

Pregnancy To Become A Protected Disability Requiring Reasonable Accommodation?

On September 19, 2012, Senator Robert Casey of Pennsylvania proposed a bill that, if passed, would seek to end discrimination in the workplace based on pregnancy.

The Pregnant Workers Fairness Act would make it unlawful for an employer to: 1) deny employment; 2) fail to make reasonable accommodation; 3) require an employee to accept an accommodation she does not wish to accept; or 4) require an employee to take leave, if another reasonable accommodation is available.

Here is a link to the full text of the proposed legislation: Pregnant Workers Fairness Act.

Check the blog in the coming months for an update on the status of the Pregnant Workers Fairness Act.

In the meantime, please contact the Paulus Law Firm with any questions that you have regarding pregnancy in the workplace or any other disability.
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Jordan Bergus
Attorney
Paulus Law Firm

A workers rights group protested Wednesday at the front of a New Haven pub that is says failed to pay a cook overtime even though he worked 72 hours a week. Click here for the full story and a video of the protest. http://www.nhregister.com/articles/2012/08/22/news/new_haven/doc5035524e95acb751414942.txt

Wal-Mart Pays $4.8 Million in Back Pay

An investigation by the Department of Labor has shown that Wal-Mart is misclassifying certain employees; consequently, violating federal overtime pay laws. As a result of this investigation, Wal-Mart has agreed to pay $4.8 million in back pay to thousands of employees. However,a much larger issue may be at hand. There are probably many more employees who qualify for back pay than those who are included in the settlement. Also, many employees included in this settlement may have not been compensated for all the back pay owed. If you feel that you may qualify for back pay from Walmart, please contact Paulus Law Firm at mail@pauluslawfirm.com.