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What You Shouldn’t Say To An Employment Lawyer

What You Shouldn't Say To An Employment Lawyer

You may believe that you have an excellent legal claim against your employer because you have researched your issue and have found a lawyer that you believe is right for your case. When that lawyer says no, you try again. That lawyer also declines to represent you, leaving you to wonder what was wrong.

It is possible that your case is not as good as you believe that it is. It may also be possible that you said something to turn the attorneys away. There are few employment lawyers who represent employees who are available, and there are even fewer who have experience. Experienced employment attorneys like the lawyers at Swartz Swidler are extremely busy. If you contact lawyers, it is important for you to understand what to avoid saying to keep them from turning you away regardless of how solid your case might be.

1. This is an easy win for you

In employment law, there is no such thing as an easy win. If your case is really that strong, you wouldn’t need a lawyer. Becoming an employment attorney involves four years of undergraduate education, three years of law school and years of practice. In employment law, a majority of plaintiffs do not win. Your attorney at Swartz Swidler will work hard to win for you. If your case settles early, it is likely because of your lawyer’s reputation, skill and experience rather than the easiness of your claim.

2. You will not agree to settle for less than seven figures.

There are caps on the recovery amounts for most employment law claims. Even when there are no caps, it is rare for employment cases to return settlements of seven figures or more. When you say this, your attorney hears that you are unrealistic and that you will be a difficult client. Insisting on a trial may make it less likely for you to win if your attorney has recommended that you accept a settlement offer.

3. Your employer will settle to avoid bad publicity.

Many employers do not settle to avoid publicity, and some litigate more fiercely when there is the increased pressure of it. Employers understand that it is difficult for plaintiffs to succeed at trial in employment law cases. Your attorney will need to be able to show the defense attorney that there is merit to your claim in order to secure a settlement, and he or she is not allowed to make threats of talking to the media about your case if your employer doesn’t agree to settle.

4. You’re the seventh lawyer who I’ve interviewed.

Attorneys immediately wonder why none of the other attorneys wanted your case when you tell them that you have interviewed numerous lawyers. They take these kinds of statements as meaning that there is something wrong with your case or that you are simply playing games. There is no need to attempt to pit lawyers against one another, and it is a turnoff when prospective clients try to do so. It is perfectly fine for you to interview several lawyers, but it is not a great approach to broadcast that.

5. Other lawyers said they’d charge me less.

If you have received a lower quote, accept it if you’d like. When you are dealing with an experienced attorney, you should expect to be charged more.

6. The last lawyer that you had attempted to throw you under the bus.

It is a huge turnoff when people claim that their previous attorneys tried to force them to accept unreasonably low offers. Many employment lawyers work on either a partial- or full-contingency basis. It is highly unlikely that an attorney whose best interest is served by securing you the highest possible settlement would push you into accepting a low offer. In addition, if you are unable to work with one attorney, others may worry that you may be unable to work with them as well.

7. You were told something different by our staff.

We work with our staff closely. When we hear our office staff answer calls, we sometimes later talk to prospective clients who misquote what they were told by them. This may include incorrect fee quotes, incorrect information about their cases or other things. Misrepresenting what the legal staff has told you scores very few points with employment lawyers.

8. You want to be represented on a pro se basis.

If you need free legal help, you should check with Legal Services of New Jersey or the Pennsylvania Legal Aid Network. Most employment lawyers cannot afford to work for free. There are no-cost services that might be available to you through one of those organizations.

9. You’d like to negotiate the fee that you were quoted over the phone.

When we quote fees, that is our cost. We will not agree to negotiate our fees down or to work for free.

10. You forgot your appointment, or you give another excuse for skipping your appointment.

Lawyers have limited time just like everyone else. When you do not respect the time constraints that they have, they are less willing to work with you. If you can’t attend, be courteous and cancel with enough notice that they can fill their time slot.

11. You didn’t complete the questionnaire.

Don’t refuse to provide the requested information. Your attorney will use it to evaluate your claim.

11. You failed to bring in the requested paperwork.

If your attorney has asked that you bring in important documents, do so. They should be organized in such a way that you can find the documents that you need. Attorneys do not have the time to sort through disorganized paperwork or to try to locate the documents that you should have.

12. You’ll do all of the work for the lawyer.

When you show up with binders full of legal research and tell the attorney that you will do everything, the lawyer is unlikely to accept your case. Lawyers attend law school for a reason, and they do not enjoy being second-guessed and micromanaged by their clients.

If you need the help of an employment attorney, it is important to always remember to offer them the same level of respect and professionalism that you expect for them to give your case. It is also important to always be courteous to their office staff. After you do retain your lawyer, maintaining a good relationship is quintessential to your case.

If you would like to learn more about your own case, contact the experienced team at Swartz Swidler today.

Can I Sue My Employer for Unpaid Wages?

Can I Sue My Employer for Unpaid Wages?

Employers who fail to pay all of the wages that their employees have earned have committed a type of theft. There are state and federal labor laws that protect workers, entitling them to receive all of the wages that they are owed for the work that they perform. Workers who are able to prove that their employers have not paid them what they are owed may be able to sue their employers to recoup their pay. The employment lawyers at Swartz Swidler may be able to  help you recover the pay that you deserve.

Minimum wage

In Pennsylvania and under federal law, employers must pay their workers a minimum of $7.25 per hour in most cases. In New Jersey, employers must pay their workers a minimum of $8.44 per hour. Employers are also forbidden from taking deductions from their workers’ paychecks that reduce their pay to below the minimum wage, and employers in New Jersey and Pennsylvania are also forbidden from taking deductions that do not benefit the workers, including charges for uniforms or damages to equipment. In addition to taking disallowed deductions, some employers violate the state and federal wage and hour laws by failing to pay their workers for all of the hours that they have worked.

Failing to pay for the hours worked

There are several ways that employers fail to pay their workers for the hours that they have worked. In both New Jersey and Pennsylvania, employers must pay their workers for meal and rest breaks that the employees are forced to work through. They must also pay them for the time that they spend in required training and classes. Workers who have to travel as a part of their jobs must be paid for the time they spend traveling. If workers have to spend time waiting on the premises before or after their shifts, they must be paid for that time as well.

Failures to pay overtime

While not all workers are entitled to overtime pay, many are. Some employers fail to pay their workers the required overtime rate of 1.5 times their normal hourly wage for all hours that the employees work in a week over 40. Other employers try to skirt the overtime rules by misclassifying workers as exempt employees in order to avoid paying them overtime. Employees must be able to exercise discretion and judgment in their jobs and meet several other qualifications before they can be considered to be exempt employees from the overtime rules of Pennsylvania and New Jersey.

Contact Our Attorneys

If you believe that your employer has not paid you for all of the hours that you have worked, you should start by addressing the problem with your boss or the human resources department. If nothing is done, then you might want to schedule a consultation with the employment law attorneys at Swartz Swidler for help with recovering the money that you are owed.

What Everybody Ought To Know About Unpaid Wage Claims

What Everybody Ought To Know About Unpaid Wage Claims

If you believe that your employer has not paid you all that you have earned, you may have the basis to file a legal claim against your employer under state or federal law. Under federal law, the Fair Labor Standards Act mandates that you must be paid for every hour that you work, that you have the right to earn a minimum of the federal minimum wage, to limit the deductions from your paycheck and to receive all of your tips other than those that are paid into valid tip pools. In New Jersey, workers have the right to earn the higher state minimum wage of $8.44 per hour. Pennsylvania’s minimum wage is $7.25 per hour, which is the same as what is required by the FLSA. An employment law attorney at Swartz Swidler may help you to recover the compensation to which you are rightfully entitled by filing a claim for unpaid wages.

Violations of the minimum wage

You are entitled to receive at least the minimum wage. In Pennsylvania and federally, the minimum wage requirement is $7.25 per hour. New Jersey has a higher minimum wage rate of $8.44 per hour, meaning that workers in the state are entitled to receive the higher state minimum wage instead of the federal minimum wage.

Employers that pay the minimum wage but take deductions that make your pay less than the required minimum are in violation of the law. Some employers do this by not paying tipped employees enough. Under the FLSA, employers are allowed to pay tipped workers $2.13 per hour if the tips that the employee earns bring his or her pay up to the minimum wage amount. If the employee does not earn enough tips to make his or her pay equal to the minimum wage, the employer is in violation of the law if it doesn’t make up the difference. In New Jersey and under the FLSA, the minimum cash wage is $2.13 before tips. In Pennsylvania, it is $2.83 per hour.

Employers also sometimes take too much money from their workers’ paychecks in deductions. These deductions may include payment for debts that the employee owes to the employer or the costs of employment-related expenses. If they force the paycheck to fall below the minimum wage, the employer is in violation of the law.

Hours violations

Employers must pay their employees for all of the hours that they work. This may be violated when employers do the following:

  • Asking employees to work off the clock either before clocking in or after they have clocked out for the day
  • Making employees work through meal and rest breaks
  • Failing to pay for classing and training programs
  • Failing to pay for work-related travel time
  • Not paying workers for waiting time when the employee must remain on the premises
  • State laws about paydays and final paychecks

The federal FLSA does not have any requirements for employers to pay their workers within certain time periods or on certain days. In New Jersey, employers are required to pay their workers at least every two weeks. In Pennsylvania, employers are required to pay their workers a minimum of twice a month. In both states, employees must receive all of the compensation that is owed to them on their next regularly scheduled pay dates after they have left their jobs.

Vacation time

Employers in Pennsylvania and New Jersey are not required to offer their employees paid vacation time. Employers who do offer vacation time to their employees are required to cash out the accrued balances and pay their employees for it when they leave.

Tips and paycheck deductions

In Pennsylvania, employers are only allowed to make deductions from their employees’ paychecks that are for the benefit of the employee. This means that it is unlikely that employers would be allowed to deduct for tools that are required for the job, uniforms, damages to property and others. New Jersey specifically prohibits employers from taking deductions from employee paychecks for uniforms and uniform maintenance.

In both New Jersey and Pennsylvania, the tips that employees receive are generally considered to belong to them. Both states do allow employers to establish tip pools to which employees may be required to contribute reasonable amounts to be shared among a pool of employees. Employers may not require their workers to contribute unreasonable amounts or to pay enough of their tips into the pools that their wages fall below the minimum wage.

Contact Our Lawyers

If you believe that your employer has violated the federal or state wage laws, you should start by complaining to the company. You can talk to the human resources department about the issue and follow your company’s procedures for complaints. If the problem is not addressed, contact an attorney at Swartz Swidler about filing an unpaid wages claim.

Qui Tam Lawsuits: Will The Government Get Involved?

Qui Tam Lawsuits- Will The Government Get Involved-

People who learn that individuals or entities are committing fraud against the federal government may be allowed to file qui tam lawsuits. A qui tam lawsuit is a lawsuit that a private citizen may file against the wrongdoer on behalf of the government. The government may intervene or it may not, and the extent of its involvement in cases will vary. The employment law attorneys at Swartz Swidler may assist his or her client with their qui tam lawsuit throughout the process.

The investigatory stage

Qui tam lawsuits are started by filing formal complaints with a federal district court. The complaint is served on the United States Attorney’s office for the particular federal district as well as on the Department of Justice in Washington, D.C. Qui tam complaints are filed and served under seal so that their contents are not public.

After the complaint has been properly served, the DOJ has 60 days to complete a preliminary investigation and to determine whether or not it will participate in the action. Commonly, the service of the complaint may be the first time the government learns of the alleged wrongdoing. This means that the DOJ may ask for more time to investigate. The requests for more time are normally granted, so it is not uncommon for preliminary investigations to last longer than a year. The inspector general of the agency that oversees the contract or program that is the subject of the alleged wrongdoing conducts the preliminary investigation.

Intervention by the government

The government may take one of several different actions following its preliminary investigation, including the following:

  • Joining the lawsuit
  • Not joining the lawsuit
  • Pursuing alternative remedies
  • Trying to settle the case
  • Dismissing the complaint

It is rare for the government to dismiss a complaint. In most cases, the government will simply decline to join in the lawsuit. The False Claims Act does grant the government the right to later change its mind and join the lawsuit. There are several reasons why the government may choose not to join a qui tam action, including its belief that the claim is meritless or because it does not want to allocate the necessary resources to pursue the claim.

If the government does decide to join the claim, it will then take on the primary responsibility for pursuing the case and investigating it. The government commonly limits the original plaintiff’s role going forward.

When the government declines to intervene

When the government does not join in a qui tam action, the person who filed it may continue forward. He or she will have the same investigatory and discovery rights that the government would have had if it had chosen to participate. Private individuals who are successful with their qui tam actions after the government has decided not to intervene are entitled to receive larger awards than they would have if the government had chosen to participate.

If you believe you have the legal grounds necessary to file a qui tam action, you will likely need help. Contact the employment law attorneys at Swartz Swidler to schedule your consultation.

U.S. Lags International human rights standards in gender pay gap, maternity leave, and affordable child care.

The U.N sent an expert delegation to United States to gather data and impressions from numerous government agencies, including the Departments of Labor, the Department of Health and Human Services, and the Department of Justice. The initial findings conclude that women in the United States have “missing rights” compared to the rest of the world. For instance, the U.S. is one of three countries in the world that does not guarantee women paid maternity leave, according to the U.N. International Labor Organization. The U.N. suggests that countries guarantee at least 14 weeks of paid parental leave. “The lack of accommodation in the workplace to women’s pregnancy, birth and post-natal needs is shocking,” one of the experts said. “Unthinkable in any society, and certainly in one of the richest societies in the world.”

Median usual weekly earnings of full-time workers by sex

The findings also stressed that while women in general are the harmed by these missing rights, the most vulnerable are those who are poorer, older, or disabled. The findings also found that minority women were more likely to be harmed by the lack of pregnancy accommodations.
The U.N. findings confirm what is unfortunately well known by many American citizens.. According to a Pew Research Center survey in 2014, Women are far more likely than men to see gender discrimination in today’s society. About two-thirds (65%) of women say they have faced discrimination because of their gender. In general, both men and women believe that workplace discrimination persists. The Pew study found that 77% of women and 63% of men agree that the United States “needs to continue making changes to give men and women equality in the workplace.”
The fact that women consistently make less than men is well known. According to the U.S. Bureau of Labor Statistics, full-time working women typically earn less than their male counterparts. Concretely, in 2015, females earned on average 23% less than their male colleagues who performed the same job, which means that women have to work approximately 60 extra days, or about three extra months, to earn what men did by the end of the previous year.

Women earn less than men

The gender pay gap is greater for minority women. White women earned an average of 24% less per week than white men in 2015. However African American women earned an average of 34% less than white men and Hispanic/Latino females earn up to 49% less, on average, than white males.

Despite of the gender inequality in the workplace, the Equal Pay Act of 1963 prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions
The Equal Pay Act of 1963 (EPA) is part of the Fair Labor Standards Act (FLSA), and is administered and enforced by the Equal Employment Office Commission. According to EPA, no employer shall discriminate between employees on the basis of sex by paying wages to employees at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work for jobs which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to :
– A seniority system;
– A merit system;
– A system which measures earnings by quantity or quality of production; or
– A differential based on any other factor other than sex
An individual who has been paid discriminatorily based on gender may bring a lawsuit demanding the unpaid wages, along with other damages.

If you believe you are being discriminated in your workplace because of your gender or race, please contact one of our employment attorneys today for a detailed, free legal consultation. There is no typically no fee unless we recover.

Supreme Court clarifies when employers must accommodate pregnant employees

Pregnant Employees must be granted reasonable accommodations when the employer has provided similar accommodations to other individuals with similar limitations.

The United States Supreme Court ruling is a victory for Peggy Young, a former driver for UPS who claimed the package company violated her rights under the Pregnancy Discrimination Act (PDA). She will now have a chance to prove her case in a lower court where she had previously lost.  The ruling further provides support for women who are facing discrimination due to pregnancy.

When Young became pregnant in 2006, Peggy Young’s doctor told her not to lift anything heavier than 20 pounds for the first 20 weeks of her pregnancy. When she requested a reasonable accommodation from her boss, she was denied her request for light duty. Instead, UPS placed her on unpaid leave and cancelled her health benefits. She was told that UPS only provided accommodations to three categories of workers: those who had been injured on the job, those who lost their Department of Transportation certifications, and those who have a disability as defined by the Americans with Disability Act. Because pregnancy is not a generally a disability under federal law, UPS refused to provide the pregnant worker any accommodation. She sued UPS for discrimination.

The Pregnancy Discrimination Act requires employers to accommodate pregnant women who have work restrictions. While not in issue in this case, the New Jersey Law Against Discrimination also requires accommodations for pregnant employees.

Young claimed that UPS’s failure to accommodate pregnant women violated the Pregnancy Discrimination Act of 1978, a federal law providing that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work”. Young argued that because UPS did offer light accommodation to some employees, it must offer her the same accommodation.

UPS maintained that the company’s policy complied with the Pregnancy Discrimination Act (PDA) and that it was a pregnancy neutral policy.

Young lost the case in federal district court which ruled in favor of UPS on a summary judgment motion. Then she appealed to the United States Court of Appeals for the Fourth Circuit which affirmed the previous decision, saying that UPS did not violate the Pregnancy Discrimination Action because its light duty policy is pregnancy-blind: it treats pregnant and non-pregnant workers the same and accommodates only those who fall within the three categories of workers identified.

After losing her appeal, Young asked the Supreme Court to decide whether UPS acted unlawfully. The question was whether the Pregnancy Discrimination Act requires companies to offer light-duty options to pregnant workers if they already do so for non-pregnant workers in who are “similar in their ability to or inability to work.”

According to the Court, a middle ground approach was necessary. The problem with Young’s approach was that it argued that the statue granted pregnant workers a “most-favored-nation” status. The Court agreed with UPS in: “ We doubt that Congress intended (in passing the Pregnancy Discrimination Act) to grant pregnant workers an unconditional most-favored-nation status.” So a pregnant worker is not necessarily entitled to the same accommodations as an individual who is disabled under the Americans with Disabilities Act.

The Court further held that the EEOC position in this issue is ambiguous and the Court therefore did not rely upon it in reaching its determination. Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance that “disabilities caused or contributed to by pregnancy….are, for all job-related purposes, temporary disabilities” and that “the availability of….benefits and privileges…shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities”. After the Pregnancy Discrimination Act was passed, the EEOC issued further guidance, stating that “[i]f other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function.” This post-Act guidance, according to the Court, simply tells employers to treat pregnancy related disabilities like nonpregnancy-related disabilities, without clarifying how that instruction should be implemented when an employer does not treat all nonpregnancy related disabilities alike. In July 2014 the EEOC promulgated an additional guideline apparently designed to address that ambiguity. That guideline says that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job). However, according to the Court, first “the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent” and second, “that position is inconsistent with positions for which the Government has long advocated.”

The Court vacated the 2013 ruling by the 4th U.S. Circuit Court of Appeals. The Court held that a plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. Additionally, a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. That means that a pregnant worker could prevail in a claim of pregnancy discrimination if she can show that the employer accommodates most non-pregnant employees who have a similar restriction to that of the pregnant worker.

The Court also found that Young produced evidence that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions which suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong to create an undue burden in providing the accommodation. Importantly, an employer may not defeat a claim by simply arguing that there is a cost associated with providing the accommodation.

You can read this Supreme’s Court decision here:

Meanwhile states and cities are enacting their own laws requiring employers to accommodate pregnant workers. In 2014, New Jersey passed S2995/A4486. Employers must provide reasonable accommodations for an employee’s needs related to pregnancy, childbirth, or related medical conditions, including recovery from childbirth, absent undue hardship. The New Jersey Law against Discrimination and the Pennsylvania Human Relations Act also protect individuals from pregnancy discrimination.  The City of Philadelphia passed an ordinance in 2014 that requires employers to provide reasonable accommodations to employees for needs related to pregnancy, childbirth, or a related medical condition, so long as such accommodations will not cause an undue hardship to the employer. Phila. Code § 9-1128.

If you are pregnant and you have questions about your rights at your workplace, please call us for a free and confidential consultation at (856) 685-7420

More than 5,000 Drivers Have Joined the CR England Class Action Lawsuit

SALT LAKE CITY, UTAH: The class and collective action lawsuit filed against C.R. England earlier this year is becoming a major legal battle between the company’s current and former truck drivers and the company.  As of the writing of this article, more than 5,000 C.R. England drivers have filed Consent Forms to join the C.R. England Class Action Lawsuit (as of 11/9/2013).  The collective and class action lawsuit, which was filed in the United States District Court for the District of Utah earlier this year, was certified as a collective action in September of 2013.

Disability Discrimination Plaintiff Will Not Have to Arbitrate Claims

A former Chili’s employee suffering from a rare medical disability who asserts that Chili’s discriminated against him and failed to accommodate his disability, in violation of the New Jersey Law Against Discrimination (NJ LAD) will not be required to arbitrate his claims despite having signed an arbitration agreement at the time of his hire.

Swartz Swidler, LLC pleased to announce newly designed website

Swartz Swidler, LLC, an employment-based law firm located in Cherry Hill, NJ and serving the south Jersey and Philadelphia area, is pleased to announce its newly renovated website is now live. The new website will make it easier to obtain information related to certain cases the Firm files, including Fair Labor Standards Act (“FLSA”) actions asserting overtime and minimum wage violations, discrimination claims, wrongful discharge lawsuits, and other employment-related claims.

The employment attorneys of Swartz Swidler, LLC are happy to answer any job-related legal questions you may have. Please call one of our employment lawyers today for a free consultation.

Putative Overtime and Wage and Hour Class Action Lawsuit Filed Against Wells Fargo, N.A. Alleging Violations of the Fair Labor Standards Act…

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Putative Overtime and Wage and Hour Class Action Lawsuit Filed Against Wells Fargo, N.A. Alleging Violations of the Fair Labor Standards Act…