Common Bases of Employment Complaints

A particular Labor Law violation in Los Angeles deserves a particular action that needs to be done in order to avail all the guaranteed legal remedies. Thus, all employees must be familiar of the various laws that state their rights and obligations. With adequate understanding of these provisions, they may accurately define what exact violations their employers may be liable of.

These are some of the common bases for employment complaints and its corresponding government agencies handling employee grievances:

• Wrongful Termination – this pertains to the illegal discharge of an employee without any just reason. Usually, this performance occurs as due to an employer’s retaliatory acts against an offensive worker.

Department of Fair Employment and Housing (DFEH) or Equal Employment Opportunity Commission (EEOC)

• Employee Discrimination – another common cases that many employers are culpable of, discrimination is an illicit act of singling out an employee for any of the following bases (race, nationality, age, gender, marital status, religion, disability, among others)

Division of Labor Standards Enforcement (DLSE)

• Violation of the Family and Medical Leave Act – this pertains to the resistance of the employers to give their workers twelve weeks of unpaid protected leave for reasons of: caring for a newborn or adopted child, caring for a seriously ill family member and seeking medical treatment for their own sickness.

Department of Labor, Wage & Hour Division or Department of Fair Employment and Housing

• Violation of the Right to Organization – this labor law infringement is associated with any acts of an employer to prevent an employee to organize a union or to be involved in any activities arguing wages and other unpleasant work conditions.

National Labor Relations Board

• Failure to Give Worker’s Compensation – employees who will be injured in exercising their jobs are entitled for worker’s compensation benefits to help them with their medical expenses. These financial aids also aim to compensate injured employees for the period they were not able to work.

Dir, Division of Workers’ Compensation

• Hazardous Workplace – any employee has the right to refuse from entering a dangerous workplace if not appropriately informed of such conditions. They may also demand for special protective gadgets in case of unavoidable workplace risks.

Dir, Division of Occupational Safety and Health

All these government institutions are always geared up to resolve any case of labor problems and disputes. Yet, in case an aggrieved employee wishes to bring his case in court, it is imperative to hire the aid of an LA employment lawyer who is well equipped about the particular law provision that may apply in a particular case. This is to ensure the protection of his rights under the law.

Know more about employment concerns and complaints with the help of LA employment lawyer at http://www.expertlosangelesattorney.com/

California Labor Laws: Prohibiting Racial Discrimination

The Labor Law in the California covers a wide range of topics and statutes that aim to protect the welfare of the employees without displeasing the various rights and privileges of the businesses. These law provisions intend to make a balance between the labor and the business sectors. However, because of the many discriminative acts done by some employers, this balance has yet to be achieved.

One of the discriminative performances of employers that have been causing disputes in the workplaces involves racial prejudice. Although the prevailing labor laws forbid pointing out employees just because they belong to a different race, many companies still make it difficult for some individuals to be treated fairly in various aspects of employment. These include:

• hiring process
• task assignment and workloads
• salaries
• use of company facilities and equipment
• benefits
• promotions
• seminars and skills training
• dispute resolution
• employment termination

Types of Workplace Discrimination

There are two possible ways an employee may be discriminated in his job. These are:

• Disparate Treatment – this pertains to the simple acts of discrimination done by employers. It involves unfair treatment to the employees who belong to different law protected classes such as race, gender, religion, nationality and even age. Usually, this happens when an employer or a fellow worker uses insults or offensive comments or acts, directly or indirectly, to humiliate an employee creating him a hostile work environment that may also affect his job performance.

• Disparate Impact – this pertains to the implementation of company rules and policies, which exclude particular classes regarding job applications, promotions and wage increases. For an instance, a company has implemented a rule limiting a writer position to white Americans. They may be liable for an offense since an individual’s color or race may not considered as an important factor as regards to his ability and skills in writing.

Legal Remedies

The Racial Discrimination Laws guarantees protection to those employees who may have been unlawfully harassed or discharged from their work due to their race distinct from the majority. If they were able to prove a discriminative act of their employers, they will be entitled of the following reimbursements and damages:

• payment for their past and future loss of wages and other benefits
• general damages that may include pain and suffering, emotional anguish and loss of enjoyment
• punitive damages as may be determined by the court
• reimbursement for their attorney’s service fees

Discriminated employees indeed have all the rights given to them by the law. Yet, due to the probable limitations of their knowledge about their rights, it is necessary for them to appoint an experienced labor attorney to handle their cases. This will certainly increase their possibility of obtaining justice and acquiring damages from their misbehaved employers.

Know more about attorney services focused on providing valid information regarding racial discrimination law at http://www.attorneyservicesetc.com/Race-Discrimination.html

Rainier Policarpio used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.

Specialization of Labor – Alienation

The logic seems to be a no brainer, that is with the continuous increase in the number of employees, the cheaper their services become. A simple construction of the law on supply and demand dictates that when supply for a particular factor in the production process is abundant, then the reaction is that the cost in acquiring said factor would be decreased because of competition. This is what happens when what is talking are the numbers.

Now consider what is not seen, consider the eventual effect of an increase in the number of labor force, and the constant decrease in the value thereof. Would it actually be detrimental to the production process? Or would it foster a more dynamic and accountable production force? The answer, with history standing as a witness is obvious, and that is when labor has been deduced to mere numbers, a working man merely considered as a number in the production process, then that would actually alienate the worker from the duty he is trying to fulfill, and consequently lead to negative effects to the production process.

When an employee is merely an incident in the production process, and when it is viewed merely as a number in the workforce, then such employee usually loses his identity, and works as though he is already a machine. As like that of a machine, he becomes so indulged to that part of the production process that he specializes and more often than not removes himself away from the picture of the complete production process.

This alienation is detrimental to the working force. Primarily because he loses sight of the bigger picture, and he has this impression that what he is doing is already the be all and end all of his worth. With specialization, an individual is removed from the realm of finding a way to prosper himself, and to learn other things in the production process. With this continuous trend in our capitalist production state, then we will soon the day that these employees would perceive themselves as machines, cold and stiff machines.

Atty Gabriel Cosh is a legal advocate and a practitioner of law for over 10 years now. He is also an expert in the field of social legislation and personal injury cases.

For more information about Retirement benefits and Employment law please log on to http://www.mesrianilaw.com/Employment-Law.html

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What You Should Know about The Fair Labor Standards

The federal Fair Labor Standard Acts requires employers to pay their employees time and half their regular hourly rate of pay when the employees work more then 40 hours in a week. This includes employees who work forced overtime or employees who worked off the clock. The employer should know that covered employees that work more then 40 hours a week should be paid overtime. Many employers wrongly believe that paying their employees a salary wage will exempt them from the Fair Labor Standards Act. Even if a covered employee received a salary, unless that employee is actually performing certain types of specified job duties, they will be entitled to receive overtime. The Fair Labor Standards Act is a national law and therefore, is applied to all the states. Overtime and the minimum wage must be honored by all employers who are covered by the Fair Labor Standard Acts.

Many employers try to get away with this because they feel like it is too expensive. Luckily, employees have right under the FLSA to file an overtime lawsuit or other wage claim when they are denied these privileges.

The United States Department of Labor (DOL) enforces the federal minimum wage and overtime law. DOL sometimes is not much help at all only because they are understaff and usually have too many complaints and not enough investigators to look into all the complaints. Thus, most employees may want to look into having an attorney to help them get their unpaid wages owed to them.

Employees may want to get their unpaid wages under the federal overtime law once they have been a victim under these unfortunate circumstances like an employer not giving the terminated employee their final paycheck. Under this scenario it is a violation of the minimum wage law because an employee who receives nothing for wages is clearly getting less than the minimum wage.

Ulises Tarmet is a paralegal who has worked with many http://www.collectovertime.com California Overtime Lawyers educating many clients about http://www.californialaborlaw.info California Overtime Laws.

The Serious Threats of Labor-Related Sexual Harassment

The growing number of incidents related to sexual harassments in the workplace is one of the major concerns that the U.S. employment sector is dealing with. In the past few years, thousands or even a hundred thousand of these cases were reported and were filed in the courts every year. Consequently, a lot of the victims suffered a great deal of emotional damages due to these indecent acts. One of the questions that arose in these labor issue is how can we say that the said acts are done unlawfully and maliciously rather than that of the acceptable human behavior. Thus, the major public finds the definition of sexual harassment as assumed by the law, very vague. In this reason, and also maybe of the uncomfortable and tricky procedures of defending a sexual harassment case, most of the victims fail to succeed in their pursuit of justice. Sexual harassment, as defined in the Federal Laws under Title VII of the Civil Rights Act of 1964, is a form of sex discrimination. It may also be considered as “an unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment” according to the Equal Employment Opportunity Commission. Furthermore, each State may adapt different provisions in confronting this issue. They greatly vary on defining the terms and the approach on what proper sanctions should be sentenced to the assailant. But still, the victims may file their sexual harassment claims to the proper courts to obtain at least monetary damages from the party who brought them much emotional or even physical pain to some extent.

Although the thin line that separates the two different types of sexual harassment cases is slowly taken away through these past years, most courts still use it to determine the merits of the claims. Quid Pro Quo is a form of sexual harassment where the guilty party has the authority over his or her victim that enables him or her to demand sexual relationship to the victim in exchange of job favors such as promotions and salary increases. On the other hand, Hostile Work Environment is a type that comes in other ways not attributed to physical contact such as informal jokes or threats which may cause intimidation to the victim and subsequently creates an indecent work environment.

Apparently, these sinful and immoral acts should be dealt with accordingly and with much advocacy to deter more incidents from happening. Victims may also acquire the legal services of professional lawyers who are experts in dealing with labor malpractices to further enhance the possibility of obtaining justice.

Indeed, every employee deserves to be treated well not only by their superiors but as well as their co-workers. The workplace is not the area for sexual pleasure, but rather it is where everyone should respect each other’s rights and be economically productive citizens.

For more information visit the Los Angeles Employment Attorneys Law Firms and Offices

Rainier used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.

Protect Your Job & Wages

When people call me about employment issues they don’t realize one important law- in almost every state you are terminable at will. That means that your employer can fire you anytime and for no reason at all. The only way you are protected from being fired on the spot without notice is if you have a contract of employment. A contract of employment must be in writing and should specify your length of employment, salary, terms of employment, vacation, bonus calculations, the basis of termination and any warnings to be given (make it at least 3 warnings if you can) prior to termination and must be signed by your employer, among other things.

Now, most people never get employment contracts because their employers do not want to lose the right to terminate you with or without cause. But there is a saving grace–if your employer wrote an intial offer of employment letter and you commenced employment based on that letter, you can use the terms in that letter as your contract of employment. Hopefully the letter spells out your salary and length of employment because there are cases where if your fired before the end of the term in that letter than you can be due the balance of your salary for that term. So, if your salary was $40,000 for the year and the offer of employment letter states your term is 1 year then if your fired in the first 2 months, your due the balance of 10 months salary. And if your employer has an Employee Handbook with rules and regulations therein (usually terms of termination, warnings, vacation pay) then that Handbook is also a binding “contract” of employment. Read the terms of your Handbook because it may spell out how and when you can be terminated which may or may not be good for you depending on whether or not it limits the employer’s liability for terminating you. On the other hand, if the Handbook has terms regarding certain pre-warning procedures before terminating you an dthose procedures were not followed , then you can enforce those procedures as terms of your contract. If your employer breached those terms he most likely must re-instate your employment and follow those procedures before terminating you.

The most important part of your employment is getting paid, so if your employer fires you and refuses to pay you what you understand to be due you, then use your Offer Letter and the Employee Handbook as your “contract” of employment. The employer must follow any terms in those documents. There are also labor laws in each state that require payment for overtime, limited hours of work for certain jobs and notice of your termination date and your health insurance termination dates and proper notice is required as to how to extend your health benefits (“COBRA”). Also, law specify that an employer must pay you at least every two weeks, so if your fired and the employer doesn’t send your last check to you on time an dholds it back-he violated labor laws and can be held liable to you for extra money you pay to recover your wages.

For instance, in New York the Labor Law mandates proper notice of employee termination and benefits termination. An employer failing to follow the Labor Laws is penalized under Labor Law 198, in addition to ordinary costs lost by the employee he must pay a reasonable sum for expenses which may be taxed as costs are allowed by the court. Furthermore, in any action instituted upon a wage claim by an employee which the employee prevails, the court is required to allow such employee reasonable attorneys’ fees, Labor Law 198(1-a), and upon finding that the employer’s failure to pay the wage specified by statute was willful, an additional amount as liquidated damages equal to twenty-five percent of the total amount of wages due is also paid to the employee. Labor Law 198(1-a). Case law holds an award of liquidated damages to employees proper where the employer knowingly, deliberately and voluntarily disregarded its obligation under the Labor Law to pay the employees’ commissions, which would be deemed “willful” failure to pay wages. P & L Group, Inc. v Garfinkel (1989, 2d Dept) 150 AD2d 663, 541 NYS2d 535.

So, don’t despair if your employer gives you a hard time when your fired–there are laws requiring him to pay your wages and your Employee Handbook and Offer of Employment Letter also can be used as valid contracts to support your position for wages.

This article is certainly not all inclusive and is intended only as a brief explanation of the legal issue presented. Not all cases are alike and it is strongly recommended that you consult an attorney if you have any questions with respect to any legal matters.

Any questions and/or comments with respect to this topic or any other topic, contact:

http://www.appellate-brief.com

Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762

Susan Chana Lask, Esq. c 2004

Susan Chana Lask is named in the media as New York’s high-powered attorney. She succesfully handles all civil & crimnal cases in State & Fedral Courts nationwide. Visit http://www.appellate-brief.com
scl@appellate-brief.com

Free Non Disclosure Form (NDA Form)

Non Disclosure Agreements (NDAs, also known as ‘Confidentiality Agreements’) are an essential part of modern business. If you have a trade secret, an invention or a ‘good idea’, it can be worrying revealing the details to a third party because you never know if your idea may be stolen. For this reason, NDA forms are common. The problem is, most of them are long winded, running to 10 pages or more, and they very length of them makes it difficult sometimes to get your target to sign in the first place.

For this reason, we here at www.lawyersbench.com have come up with this ‘short form’ NDA form you can use. It is short, unambiguous, and covers both parties, so you should find much less resistance when trying to get it signed. As always, www.lawyersbench.com recommend consulting your own lawyer in any legal matter.

Non Disclosure Agreement

Parties:-

A) COMPANY (or person) A (E.g. www.lawersbench.com)

B) COMPANY (or person) B (E.g. Jefferson Highway Esq)

Whereas:-

The parties possess valuable information, technical knowledge, experience and data of a secret and confidential nature relating to the field, all of which are regarded by them as commercial assets of considerable value; and

The parties are willing to disclose such information to each other on the condition that the recipient of the information does not disclose the same to any third party nor make use thereof in any manner except as set out below.

In consideration of such disclosure to each other, it is agreed by and between the parties hereto as follows;

1. The receiving party undertakes to treat as strictly confidential and not to divulge to any third party any of the information disclosed by the other and not to make use of any such information without the disclosing party’s prior written consent.

2. In the event of one party visiting any of the Establishments of the other party, the visiting party undertakes that any information relating to the field which may come to its knowledge as a result of any such visit, inclusive of the form, materials and design of various elements of any relevant plant and equipment which may be seen at such Establishments as well as all the plant as a whole, the methods of operation thereof and the various applications thereof, shall be kept strictly confidential and that any such information will not be divulged to any third party and will not be made use of in any way by the visiting party without the other party’s prior written consent.

3. The above undertaking shall not appy to:

1. Information which at the time of disclosure is published or otherwise generally available to the public.
2. Information which after disclosure by the disclosing party is published or becomes generally available to the public, otherwise than through any act or omission on the part of the receiving party.
3. Information which the receiving party can show was in its possession at the time of disclosure and which was not acquired directly from the disclosing party.
4. Information rightfully acquired from others who did not obtain it under the pledge of secrecy to the disclosing party.

4. The parties agree that after three years from the date hereof they shall each be relieved from all obligations under the Agreement and that after such period has expired they will rely on such patents as they may then own for the protection of any information disclosed to each other pursuant to this Agreement.

5. The terms of this Agreement shall be deemed to apply also to the servants or agents or legally associated entities of the receiving party who shall require their said servants or agents or legally associated entities to observe the foregoing obligations.

6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any invention or patent now or hereafter owned by or controlled by the parties.

7. This agreement shall not be construed in any manner to be an obligation to enter into further contract or to reimburse the cost of any effort expended by either party.

8. This agreement shall be interpreted in accordance with the laws of the INSERT COUNTRY / STATE HERE.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives, effective as of the date hereof.

COMPANY A

By: _______________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

COMPANY B

By: _______________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

Jefferson Highway writes short article about the law for www.lawyersbench.com a free site full of top legal advice and tips.

Religious Discrimination Tougher To Prove Than Race Or Sex Discriminaion In New Jersey

New Jersey state courts are notoriously indulgent to plaintiffs claiming sexual or racial discrimination and will almost never dismiss a sex or race based discrimination case, no matter how meritless. The New Jersey Supreme Court has held that the state anti-discrimination statute (the “NJLAD”) is not meant to be a “civility code” and was not enacted to combat words that are merely discourteous or rude. Instead, it is only supposed to apply to genuine acts of discrimination—where an employee is singled out for bad treatment due to his or her race, gender or religion. Moreover, in cases where the employee/plaintiff has not been terminated, and instead claims to have been subjected to a “hostile work environment,” the plaintiff is required to prove a pattern of improperly-motivated acts (such as sexual comments, racial slurs or jokes) that are so “severe or pervasive” in the workplace that they “alter the conditions of employment.” The logic behind this sentiment makes sense, however, subsequent Supreme Court and Appellate Division decisions seem to have ignored these principles in practice and effectively nullified them.

For example in Taylor v. Metzger, 152 N.J. 490 (1998), the State Supreme Court held that a single patently racist slur spoken by a supervisor to a subordinate was enough to warrant a trial for a hostile work environment case. In the wake of Taylor, trial courts in New Jersey have been increasingly reluctant to throw hostile work environment cases out of court where an employee/plaintiff only alleges that they were subjected to just a few (or even one) racial or sexual comment. Without the ability to nip cases based upon arguable trivialities in the bud on a summary judgment motion, employers are increasingly faced with the prospect of having to defend cases of little or no ultimate value all the way to trial in order to prevail. The high costs of trial can turn these “nuisance” cases into expensive undertakings.

One area, however, where the State Courts are still willing to grant summary judgment, in the absence of real evidence of discrimination, is religion. In Mandel v. UBS/PainWebber, Inc., 373 N.J. Super. 55 (2004), the Appellate Division affirmed the grant of summary judgment against two plaintiffs who alleged a religiously hostile work environment. One plaintiff alleged that a supervisor made the following remark about a fantasy football league being conducted in the office: “This is the gentiles versus the Jews and the plaque should never hang in anybody’s office that doesn’t celebrate Christmas.” The other plaintiff said that she was referred to as a “Jew b**ch” on one occasion, although the plaintiff was not present when the phrase was uttered and did not learn about it until after she quit to take a job elsewhere.

In Mandel, both plaintiffs left to take other jobs that paid similarly to the ones they left. In addition, the comments that were allegedly made were isolated and clearly were not so severe or pervasive so as to alter the conditions of the plaintiffs’ employment. The Mandel Court cited to Heitzman v. Monmouth County, 321 N.J. Super. 133 for an example of what a religiously hostile work environment really is—namely one in which the harassing conduct is truly substanial (Heitzman’s boss made repeated inquiries into what Heitzman was doing on Friday nights, his dietary restrictions, made comments about a country club that excluded Jews, commented on a “Jewish mile”, and called Hietzman’s vacation destination the “Jewish Alps,” among other comments).

The Mandel court got it right and correctly dismissed a suit in which there just was no real evidence that the employees were actually the victims of a continuing pattern of discrimination that transformed their working environment into a hostile one—rather were only demonstrated that there were one or two stray comments. The Mandel court, however, did note that under Taylor, an employee’s allegation of a single racial comment would normally preclude granting summary judgment. The rationale is that a single racial comment can evoke centuries of cruelty and discrimination, such as when the “N” word is directed toward an Africn-American. As for gender or sex related comments, it is unclear as to whether or not a plaintiff’s allegation of a single offensive remark will be sufficient to preclude an employer from obtaining summary judgment and avoiding trial.

Thus, following Mandel, Heitzman and Taylor, the following sliding scale can be applied to predict the likely behavior the New Jersey State Courts when faced with different types of hostile work environment cases:

1. Nearly every case in which a plaintiff alleges that a patently offensive racial slur was directed towards him will overcome summary judgment and go to trial (even if it is only a single comment).

2. Where a plaintiff alleges to be the victim of a religiously hostile work environment, he will need actual evidence of a true “pattern.” Allegations of isolated or sporadic comments will be unlikely to warrant a trial.

3. Where a plaintiff alleges to been subjected to a sexually hostile work environment, the behavior of New Jersey’s courts cannot be predicted. More conservative judges will likely dismiss cases that seem to be based on infrequent or trivial bases. More permissive judges should still be able to let virtually any plaintiff get to trial.

© 2005, Jonathan Meyers, Esq.

Jonathan Meyers, Esq. is an employment litigation associate with the law firm of Grotta Glassman & Hoffman, P.C., a law firm whose practice is limited to representing management in employment and labor related matters. He is an experienced trial and appellate advocate.

Contact:
meyersj@gghlaw.com
http://www.gghlaw.com/meyers.htm

FLSA Lawyers – Fair Labor Standards Act Attorneys & Lawsuits

The Fair Labor Standards Act (FLSA) was created by the United States government in 1938. This act was set to protect the rights of workers and encourage ‘fair play’ between the management and labor. This act established a national minimum wage, created overtime pay and installed regulations for minors in the workplace.

Because of the diverse nature of the American workforce, there is special consideration given to various groups such as children working on farms. Selected terms were given for people in executive and administrative positions as well as thousands of other special cases who are able to claim exemptions to FLSA regulations.

In August 2004 the most important change to FLSA came about. Lawmakers decided to amend the document and clearly establish which jobs are exempt from overtime and which jobs are not. As a result, millions of Americans who were once eligible for overtime pay had now been ‘reclassified’ into administrative, professional and executive categories which disqualified them for their overtime pay.

Hard working Americans deserve respect for their contributions to society and should be entitled to fair and just compensation for their labors. If you or a loved one has been a victim of oversight, negligence or deceit in the workplace it is important that you contact an experienced FLSA lawyer immediately. FLSA litigation can be confusing and time consuming, and only a professional FLSA attorney will be able to get you the compensation you deserve.

T.Going

For more information on FLSA lawyers, FLSA litigation or filing FLSA lawsuits, please visit http://www.resource4flsalaw.com.

Cobra Notice

AN EMPLOYEE QUIT LAST YEAR AND YOU’RE PRETTY CERTAIN THAT YOU SENT HIM A COBRA NOTICE, BUT CAN=T PROVE IT. YOU WANT TO KNOW YOUR POTENTIAL LIABILITY? B IT COULD BE STAGGERING!

An employer is required to notify an employee and qualified beneficiaries of their rights to continue their group health plan benefits within 14 days from the date notified of a Aqualifying event.@ 26 U.S.C. ‘4980B(f)(6)(d). A qualifying event is an event which disqualifies an employee or a qualified beneficiary from further participation in the employer=s group health plan. The employer can treat a notice sent to an employee=s spouse as notice to all of the dependent children residing with that spouse.

The Internal Revenue Code imposes an excise tax on any employer maintaining a group health plan who fails to meet COBRA requirements. The IRS can assess a penalty of $100 per day during the noncompliance period for each qualified beneficiary affected by the failure to comply. If it affects two or more qualified beneficiaries in the same family, the maximum is $200 per day.

When computing the noncompliance period, it commences on the date the employer=s failure to comply with COBRA first occurs and ends on the earlier of: (1) the date the failure is corrected, or (2) six months after the last day the qualified beneficiary=s COBRA continuation coverage could have been terminated not including terminations for failure to make payment. For failure to provide coverage, however, the noncompliance period does not commence until 45 days after COBRA coverage is requested.

If an employer inadvertently fails to comply with COBRA, the noncompliance period does not commence until the employer knew or should have known of its noncompliance with COBRA. An employer will be deemed to have inadvertently failed to comply with COBRA if it can prove that it did not know and had no reason to know that it was in noncompliance with COBRA requirements. Yeah, good luck with that!

An employer is afforded a 30 day grace period for correcting its failure to comply with COBRA. The grace period begins on the date when the employer knew or should have known that the failure existed. Provided that the employer=s compliance failure was the result of reasonable cause and not willful neglect, the IRS cannot impose the excise tax on an employer who corrects the violation within the grace period.

A COBRA compliance failure is deemed corrected if (1) the failure is retroactively undone to the extent possible, and (2) the qualified beneficiary is placed in a financial position as good as the position which he would have enjoyed had the employer not failed to comply with COBRA. Moreover, the beneficiary must be treated in the manner which he would have enjoyed had he elected the most favorable continuation coverage available under the plan.

ERISA also subjects employers, who fail to provide the required COBRA notices to qualified beneficiaries, to a $100 a day fine for each participant to whom the employer fails to provide the statutorily required notice. ERISA penalties apply to all group health plans except small employer plans (less than 20 employees); church plans; government plans; and other non-ERISA plans.

Terrence B. Robinson

Mr. Robinson enjoys an exclusively labor and employment litigation practice, representing employers in all aspects of discrimination, wrongful termination, and tort/contract claims arising out of the employment relationship. He also counsels clients on day-to-day issues involving all aspects of labor and employment law. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist.

Mr. Robinson is a very experienced litigator and has successfully defended cases under Title VII, the ADA, the ADEA, the FLSA, the FMLA, the TCHRA, ERISA, and other statutory and common law causes of action, including claims involving trade secrets, non-compete agreements, workers’ compensation retaliation, defamation, assault, and intentional infliction of emotional distress. Mr. Robinson has obtained summary judgments in numerous cases he has defended for employers. He has successfully defended employers in matters brought by private sector plaintiffs, as well as, governmental entities such as the EEOC and Department of Labor.

In the traditional labor area, Mr. Robinson has experience with union elections, unfair labor practice charges before the NLRB, collective bargaining, and arbitration. In addition, Mr. Robinson has counseled and advised clients in their “preventative maintenance” efforts, has conducted supervisory training seminars, and has conducted employee handbook and personnel policy reviews for them.

Mr. Robinson speaks regularly at seminars on employment law issues. He has spoken at seminars for South Texas College of Law and has also spoken at a number of seminars for Lorman Education Services on a variety of HR and employment law topics. Mr. Robinson has authored a number of legal articles and other writings on various labor and employment related issues, as well.

trobinson@neelhooper.com