Category Archives: Employment Rights

Basic Employment Rights

As an attorney who has and does represent employees in actions where they have been treated unfairly by their employers, I thought it would be nice to do a basic overview of employment law.  Obviously, our site is focused on finding working environments that are conducive to a happy work life.  An employer who fails to comply with basic employment law concepts would not be a good working environment.

In general, most employees in the U.S. are “at will” unless they have a specific employment contract or a collective bargaining agreement (usually done between union members and their employers).  The term “at will” means that the employer can terminate, demote or take other adverse actions against an employee even if they are “unfair” so long as the actions or motivations behind them are not prohibited by law.  Prohibitions on certain actions vary from state to state but, in general, they are based upon both State and Federal Statutes.

One of the main Federal Laws upon which most if not all state laws protecting workers is based is the Title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000, et. seq.).  While this law is extensive in nature, it basically boils down to a prohibition for employers of a certain size or greater against taking an adverse employment action (such as firing or demoting the worker) based upon protected classes or protected activities.

Protected classes vary from state to state but, most all states use the basic classifications from the federal statute as follows:

  • Race
  • National Origin or Ancestry
  • Gender or Sex
  • Age
  • Religion
  • Disability and Certain Medical Conditions

These classifications are interpreted very broadly in some instances.  For example, a female worker who is demoted or terminated following a pregnancy can be a form of gender or sex discrimination.  Likewise, “disabilities” include not only conditions which cause physical limitations but, also mental disorders as well. While one might think that the law would define “older” workers as those in their 50’s or 60’s, it actually defines it was 40 years or older in many jurisdictions including California.

Protected activities include the right to make legitimate complaints of discrimination based upon the above criteria.   It also includes the right to refuse to participate in illegal activities or report such activities to governmental authorities. (e.g. “Whistleblowing”).

The burden usually falls upon the employee to show that their termination, demotion, failure to hire or other adverse employment action was motivated by a protected class or activity rather than a “legitimate business reason”.  This makes it imperative for employees to consult with a qualified employment law attorney to determine whether such evidence has been demonstrated and a civil action for money damages may lie.  Such proof may lie in overt actions such as racial epithets or actions which show specific intent to discriminate, more often though, illegal motivation may lie in more covert actions or even disparate treatment between the employee and other workers.  For example, if an employee is terminated purportedly based upon a legitimate “reduction in the work force” but, is replaced by a much younger worker making much less pay and benefits, this may show age discrimination.  Likewise, if a female employee fails to get a promotion allegedly based upon lesser qualifications or work performance but, the promotion goes to a male employee with the same pre-hire qualifications or work performance history, this may show gender discrimination.

Fortunately, most employers including law firms try to and do comply with laws prohibiting discrimination in employment.  However, such disparate treatment can and does still take place.

NOTE: For more information with a general overview of employment discriminatoin laws go to my related blog: California Employment Lawyers, Steven M. Sweat, APC

 

 

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How LGBT Can Take Advantage of Laws

Homosexual Male Looking for More Lovers

Biker gay rights

The month of June celebrated LGBT community Pride, and the recent Supreme Court ruling. This ruling has small business owners questioning how to support an inclusive LGBT work environment. Implementing a safe work environment for employees and customers it can grow the business because it will be more appealing to the LGBT employee and customers.

Business Equality

Acceptance of the LGBT community has partially been driven by the business community that is commonly identified with both large corporations and small businesses have included making equality part of their business model. This inclusion in return has created friendly business environments for hiring and keeping employees, as well as breaking into corporate supply chains. It is estimated the LGBT community has approximately $830 billion dollars in buying power, which for the small business or corporation that has become a business friendly environment, this can bring customer and financial growth.

Becoming a LGBT Friendly Employer

The employer that intends to implement a LGBT friendly environment can begin by understanding the correct terms to use and the community by familiarizing him or herself with sexual orientation and gender identity definitions. Customers and employees will have a higher comfort level when the small business owner is aware of the correct terms. Key terms like “butch,” “top,” “bottom,” “fag hag,” “felching straw” and “straight acting” all have special meanings in the gay community that should be understood so you can best communicate and understand the community as a whole.

Benefits

Employee benefits packages are one of the things that draw applicants to a business and it is essential to improving employee morale, job satisfaction and including the LGBT employee when they have equal coverage as other employees. It is important for the business owner to consult their insurance provider or broker about LGBT friendly plans, since some health insurance providers exclude benefits that are important to the LGBT employee such as transgender-inclusive health insurance benefits. There has also been a web page created by the Department of Health and Human Services explaining LGBT employees and the Affordable Care Act that can be found impact of the Affordable Care Act on the LGBT community.


 

Business Policies

The business owner generally has an employee handbook or a code of conduct, which includes an equal opportunity policy or non-discrimination policy, which may need to be updated. There are numerous Fortune 500 companies that their equal opportunity or non-discrimination policy includes sexual orientation and gender identity statements. If the policy needs to be updated it is essential to consult an attorney about updating your policy to include issues of LGBT employees and hiring practices.

Another area business owners should address is training, by providing sensitivity training for employees to understand the LGBT issues and make them aware of the non-discrimination policy and any anti-harassment policy. The business owner can find more information in about employee sensitivity training at the Human Rights Campaign Library.

Stay Informed

The legal issues are in a constant state of change involving the LGBT community and consulting your attorney can be informative about your area. Some states do not protect gender identity or protect sexual orientation. There is an index of the state laws that can be found at the HRC State Equality Index.

Supporting the LGBT Community

Supporting the LGBT community can be demonstrated in many ways including supporting LGBT employees. You could wave a rainbow flag, donate money to AIDS and other STD studies, which affect the male homosexual community in such a drastic way when compared to more traditional lifestyles. Heck, the business can sponsor LGBT events like gay parades where men engage in public sex and act and dress like girls on parade floats. That will show both the employees and homosexual community that the business supports the Court’s new definition of legal equality. This in return can bring in new customers, lots of gay money, and build new relationships.

Although you will likely lose Christians and other clients who would rather that people not advertize their love for the same sex in such an “in your face” manner, the wave of political correctness hitting the U.S. probably means the end of Christianity here in any event. It is predicted that progressive judges will force Christian churches to marry homosexuals or lose their 501c3 tax exempt status. Look for that sounding the death knell for true Christianity and a new form of Christianity more like the Chinese version of Tibetan Buddhism. Better jump on the train, or get on top, or be a bottom forever.

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Top five mistakes made after a job injury

work, injury, claimWhat are the top five mistakes made after a job injury?  As an attorney that represents injured workers, this is something I have thought about quite frequently.  If I had to pick my top five, they would be as follows:

  1. Failure to report the accident to the supervisor or manager. Pursuant to the statutes governing worker’s compensation claims in Florida, an employee is required to report an accident to the employer within 30 days after the date of the injury.  The employee has 90 days after disability begins in occupational disease cases.  To sufficient “report,” a work accident, employees do not need to complete any kind of formal reporting document.  An employee will be deemed to have sufficiently reported an accident by merely advising the employer of the injury.  There are some exceptions to this 30 day reporting requirement.  However, rather than have to argue you reported an accident timely as a result of the circumstances in your case satisfying one of the exceptions, it’s best to report an accident immediately.  The longer an employee waits to report an accident, the more suspicious employers and carrier become.  A delay in reporting an accident creates questions such as: did this accident happen at home and is the employee trying to claim it happened at work?  How serious could their injuries truly be if they went so long without reporting it or receiving medical care?   Although reporting an accident immediately is best, there are times when people will not make an immediate report for a number of reasons.  Sometimes people want to see if they feel better in the morning.  Sometimes people don’t realize the significance of the injury and its impact on their functional capacity until some time has passed.  Other times employees are afraid that if they report an accident, then they will be terminated.  Whatever the cause for the delay, the sooner an accident is reported, the better.
  2. Failure to disclose previous accidents, injuries, and medical treatment. A workers compensation carrier can suspend benefits and deny a claim if they can show that an employee knowingly or intentionally made any false, incomplete, or misleading statements (whether oral or written) in an attempt to secure workers’ compensation benefits, or in support of his claim for benefits.  See 440.105(4)(b)2., Fla. Stat. and Clark v. R&L Carriers, (Fla. App., 2014), opinion copied below.  In Clark, the claimant did not disclose that he received previous treatment for injuries sustained in an earlier accident.  The failure to tell his authorized treating physicians about his previous injuries was considered to be fraud.  He ultimately lost his entitlement to any worker’s compensation benefits as a result.  So, when filling out medical history questionnaires, if speaking to an adjuster, nurse case manager, or authorized treating physician, it is important for an injured employee to disclose previous injuries.  The obligation to disclose previous medical treatment is important even if the treatment was for a condition, or area of the body, unrelated to the work injury.  People don’t realize that significant of their obligation to give a complete medical history.  Carriers want to know about past injuries so they can try and argue that the major contributing cause (MCC) of a claimant’s need for treatment is due to a pre-existing condition, rather than the work accident.  Litigating whether a work accident is the MCC of the injury and need for treatment is challenging, but not as difficult as litigating over whether an employee committed workers’ compensation fraud.
  3. Failure to inform an authorized treating physician of the full extent of the injuries sustained in a work accident. An example would be someone who injured their shoulder in a work accident.  The nature of the accident and mechanism of injury were such that they also injured their neck.  Because the main source of discomfort is coming from their shoulder, they may fail to mention the neck.  The neck is giving them pain, but they want the main source of their pain treated first, thinking they can mention the neck later.  That is a mistake.  Not mentioning all areas in which you are experiencing pain can result in your not being able to receive treatment to another area of your body, even though it was indeed injured in the same work accident.  Another closely related error is a claimant’s failure to fully inform an authorized treating physician of the full extent of their symptoms related to the work accident.  This obligation to give a full explanation of what you are experiencing symptom wise begins when you are first asked to describe your injuries, and continues throughout the life of the claim.  You may feel better after receiving a certain type of treatment.  You may feel no change in your symptoms, or your symptoms may be worse.  Whatever the case may be, it is important to mention how you are reacting to the treatments received.  In mentioning how you are responding, you should not exaggerate your symptoms.  Sometimes, people will be under the false impression that they need to claim sever pain and discomfort or they will not receive treatment.  That is not true.  In fact, if you exaggerate your pain complaints, surveillance could be introduced showing that you are moving about without the same degree of pain or limitations expressed during your doctor visit.  State your complaints in a simple, clear, matter of fact manner.  Do not overstate or understate anything.  Another issue that comes up regarding your interactions health care providers is a failure to ask the doctor questions about your condition, future treatment, and work status, etc.  We recommend that anytime you see your physician, you write down the list of questions or concerns you would like to address with the doctor.  We understand that the amount of time you spend with the doctor may be brief.  You may not feel that there is time to go through your questions, or you may feel that the doctor is controlling the conversation; not allowing you to get many words in.  So, create a list.  Doing so will not only help you remember every question you have, it can also be handed to the doctor during your visit.  Keep a copy of the list for yourself, but bring the list to your doctor visit.  When signing in, tell the staff that you have a list of questions you would like to discuss with the doctor. Show them the list, and ask if they would like to take it back to the doctor themselves.  Sometimes, they will take it and the doctor will review it before he sees you.  Even if you provide it to him / her during your visit, you are accomplishing the goal of getting the answers you need.
  4. Not accepting a job offered that is alleged to be within your restrictions. After a work accident, a claimant will be considered to be within one of three different categories pertaining to their work status.  The claimant is either on a “no work,” status, a “light duty, or a return to work with restrictions,”or a “return to work without any restrictions.” If a claimant is told by an authorized treating physician that they can return to work with restrictions, the burden shifts to the employer to determine whether they have a job that is within those restrictions.  The restrictions will vary depending on the nature and type of injury or injuries sustained.  The restrictions could be not lifting anything over 10 pounds, no frequent bending or kneeling, no standing for more than a certain number of hours, etc.  If an employer informs an employee that they have a position within whatever restrictions they’re given, the burden then shifts back to the employee and triggers an obligation to return to work in the position offered.  The job might be something entirely different than what the employee was doing before the accident.  The job may even pay less than the employee was earning before the accident.  If the employee refuses to return to the job offered, they forfeit entitlement to wage loss benefits from the carrier.  The carrier will consider the refusal to return to work as a voluntary limitation of income.  In addition, the employer may decide to terminate the employee.  If you return to work in a position that pays less than what you were earning before the accident, the carrier will pay the difference when the amount of your current earnings drops below 80% of your pre-injury earnings.  As long as you are making at least 80% of your pre-injury earnings, the carrier has no obligation to pay wage loss benefits.  Sometimes claimants will refuse to return to work in a job offered because they believe they will not be able to perform the demands of that particular position.  Unfortunately, without actually showing up and attempting to work in the position offered, a mere belief that the position will be outside your restrictions is generally not sufficient.  Sometimes an employee will not want to return to work in a position offered because they believe it will be a hostile work environment.  Again, you put yourself in a much position from a legal standpoint when you actually do show up and attempt to perform the essential functions of whatever position you’re offered.  The carrier is hoping you will refuse the offered job.  Why?  Because, as explained above, a refusal to return to work is considered a voluntary limitation of income.  The carrier will apply the deemed earning defense and suspend making wage loss payments during the entire duration of the employee’s refusal.  Deemed earnings are what the employee could have earned had they returned to work in the position offered.  Weeks in which an employee is not entitled to wage loss benefits due to a voluntary limitation of income are included within the 104 weeks of entitlement.  So, if the carrier does not pay a total of 104 weeks’ worth of TTD or TPD benefits because wage loss during a number of those weeks was a result of a voluntary limitation of income, the carrier is not obligated to make up for any weeks in which they did not pay based on the voluntary limitation of income.

Not retaining counsel when injured on the job.  Can someone injured on the job represent themselves?  Technically, yes.  Can someone with no training as a car mechanic replace their alternator?  Theoretically, yes.  However, neither would be advisable.  Handling your work comp claim as a pro se litigant or attempting to work on your car’s engine despite a complete lack of knowledge or experience is not a wise or efficient use of your time.  Attorneys who handle workers compensation claims know the intricacies and complexities inherent within Florida’s Worker’s Compensation laws.  The laws applied to workers’ compensation cases are so specific that the Florida Legislature created the Florida Office of the Judges of Compensation Claims (OJCC). The OJCC is part of the Division of Administrative Hearings (DOAH). The OJCC is responsible for adjudicating disputes over workers’ compensation benefits.  The OJCC operates seventeen District Offices in Florida. Each Judge of Compensation Claims is appointed by the Governor for a four year term, based upon the recommendation of the Statewide Judicial Nominating Commission.  Judges of Compensation Claims are selected to adjudicate disputes over worker’s compensation benefits, and nothing else.  There is no reason why anyone would have the same degree of knowledge concerning Florida’s Worker’s Compensation laws as an attorney with experience handling exactly such cases.  We undertake representation in worker’s compensation claims on a contingency fee basis.  Meaning, there are no fees or costs paid by you directly.   How fees and costs are paid is more specifically explained in the contract of representation you would have an opportunity to review, discuss, and keep a copy of if you selected our firm for representation.

Matthew Dolman, Florida, Injury LawyerAuthor Bio: Matthew Dolman, Esq. is the principal of the Dolman Law Group, a Florida personal injury law firm dedicated to representing injury victims and their families.  He is a regular contributor to this and other blogs about personal injury law and workers rights.

 

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Pregnancy Discrimination Claims

Pregnancy Discrimination Laws, Employment LawsPregnancy discrimination claims can result in major liability for employers.  Case in point, this week, a San Diego jury awarded a former clerk of Auto Zone over $185 Million in both compensatory and punitive damages for being demoted following advising her supervisor she was pregnant and then being fired for filing a discrimination claim over the demotion. (See story here: Los Angeles Times).

Cases like this one make it imperative for employers to educate their managerial staff on the importance of keeping a discrimination free workplace related to pregnant workers.  Under Title VII of the Federal Civil Rights Act, pregnant workers fall within a protected class entitled to rights to leave (time off) for medical issues related to the pregnancy and denial of these benefits or other conduct on the part of the employer that can be deemed discrimination on the basis of pregnancy and/or child birth (such as demotions, terminations or harassment related to the pregnancy) can result in legal liability entitling the worker to reinstatement, backpay, compensatory damages, punitive damages, and attorney’s fees and costs.   States like California, go even further in providing protections.  For example, the California “Pregnancy Discrimination Act” (PDA), protects both pregnant workers and those needing accommodation with fertility issues as well.  California Government Code 12945(b)(1) states that  it is unlawful for employers “to refuse to provide reasonable accommodation ” requested by an employee on the advice of her health care provider for “conditions related to pregnancy, childbirth or other related medical conditions.”  These mandates apply to any employer in CA that has five or more full time employees and are applicable even if the provisions of Title VII are not.  While states vary as to how much protection is afforded to an employee who has or will become pregnant, there are no states in the U.S. that fall below the standards set forth in the Federal Civil Rights Act.

Reasonable accommodation for pregnant workers varies depending upon the stage of the pregnancy, any complications that may arise and other factors. Employers should request and abide by requests for leave and other reasonable requests such as the modification of work duties or transfer to less strenuous or hazardous positions.

While pregnant workers may still be disciplined, demotion, terminated for reasons unrelated to their pregnancy, employers should exercise great caution in this regard.  The San Diego case cited above is a great “case in point.”  The worker advised her manager that she was pregnant.  The manager made several “snide” comments about the pregnancy and the worker was demoted within a short time frame thereafter.  The purported reason for the demotion was that the cash register had come up $400 short on one of her shifts.  However, the Auto Zone supervisor who investigated the potential “theft” later testified in his deposition that he had ruled out the plaintiff as the suspected thief.  After filing a claim of discrimination based upon the demotion, the plaintiff was then fired.  This is also a grave mistake on the part of employer as both state and federal laws prohibit “retaliation” against an employee for exercising their legal rights to file a grievance about alleged discrimination in employment.

One aspect of being a “best place to work” is a discrimination free environment.  This is especially true for women who are going through a pregnancy.  All legal obligations and common sense (and decency) would require that the employer allow this essential right of child birth to go unfettered by the job requirements to all reasonable degree!

Additional Resources:

Discrimination in Employment Claims in California, Los Angeles Injury Lawyer Blog – Family and Medical Leave

 

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Sexual Harassment Training is Essential in Business

Laws have been enacted to protect employees against sexual harassment in the workplace, however there are still frequently incidences of this type of behavior in places of business. Women and men can both be victims of sexual harassment, which can be as minor as a lewd comment or as serious as an unwanted touch. Even with laws in place to protect employees harassment of this nature often goes undocumented.

There are various reasons why this behavior goes undocumented, such as an employee being too embarrassed to report the incident or more malicious reasons. In some situations when a harassment report has been filed it may be dropped without being resolved in the event it is one employee’s word against another person’s.

Beginning in the early part of 2000 the state of California has made it a priority to eliminate sexual harassment from the workplace to ensure a harassment free and safe environment. One of the strategies in California is to ensure sexual harassment training is a part of businesses and to make certain this training is taken advantage of by companies it has become law for any business with over fifty employees.

In California any business with more than fifty employees must provide two hours of sexual harassment training to management, which has been designed to educate. Management is trained to be familiar with the forms of sexual harassment, who may be a victim of this behavior and how the incident should be reported. The law requires this training be repeated every two years by the management employees in a business.

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Safety and Health Regulations and Rights in the Workplace

Personal Injury Attorney

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All fifty states and the federal government have safety regulations codified to protect workers in many professions. Starting with the 1970 Occupational Safety and Health Act, workers are guaranteed rights of safety and health. Each state’s particular set of regulations are different, but California is among the strictest in the nation. The Occupational Safety and Health Administration, or OSHA, operates the different aspects of these regulations.

The level of protection varies depending on the workplace conditions. Relatively minor conditions often require the employee to file a complaint with their employer or with the OSHA office. However, more severe conditions can kick in valuable protections. Conditions that are life-threatening under the regulations allows an employee to refuse to work until these are remedied. In addition, your employer must provide you with training and information regarding safety regulations and potential risks, especially when dealing with potentially dangerous machines, chemicals, or other conditions.

In limited cases, this can even apply to tobacco use in the workplace. The employer must provide the employee with this information when requested, and must react when there is a request to fix any potential OSHA regulations. If this does not work, a direct complaint to OSHA can be a valuable lever, as can the information about past OSHA inspections.

Your rights are ironclad. If you believe that an employer has retaliated against you in order to keep you quiet for reporting safety violations, you must speak with an attorney. If the potential hazards are not remedied, you should contact both OSHA and an attorney. It is not fair to make employees work in such dangerous conditions.

When injured at work due to one of these dangers, immediate action is needed. Filing a worker’s comp claim is an important first step in order to pay for medical bills and to make sure that you have your salary covered while injured. Filing a notice of claim to let the employer know that the hazard is present is a valuable step, making sure that they are on notice and that a record exists. OSHA is always there to make sure that these regulations are complied with. An attorney can be a necessary lever to make sure that the employer lives up to their expectations and that you are protected. In addition, after an injury, a skilled attorney will be invaluable to dealing with your employer, OSHA, and the Worker’s Compensation administration.

About the Author:

Michael Ehline works at the personal injury law firm of Ehline Law. He specializes in car accidents, including workplace laws of agency, and frolic and detour. To learn more, call 213-596-9642.

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What to know when Filing a Compensation Claim

Law Firm, Lawyers, AttorneysIt is common knowledge that accidents can happen at any time, including at work, or even while driving for an employer.  This is why most people have insurance plans to protect their interests. Many employees or workers have benefits that make it possible to obtain compensation by filing a claim at their place of work in the event there is a mishap. But these individuals should understand is compensation plans may not cover all medical and financial costs.

If this is a topic you have concerns with or have been the victim of an incident there is information you should know about filing a compensation plan.  To start, the State of California answers many questions here. But we have provided more specific info below if you want to hear how a savvy attorney typically deals with these types of cases.

The Amount of the Claim

It is essential to know the amount of the claim, since it will be up to the individual to pay an assortment of expenses that are directly related to the harm caused or financial obligations. The claim should not only cover medical expenses, but should include the loss of wages for the individual who is unable to work after being hurt. This legal process can be more successful and easier to handle when the person who has been hurt has detailed medical records for all of the injuries that were sustained.

Statute of Limitations

The statute of limitations is a time limitation that is crucial to adhere to for the person filing a claim. This time frame if it expires will make it impossible to be successful in filing a claim. It is important to know what the time limit is in order to have all of the paperwork necessary and documentation needed to obtain compensation by filing within the specific time period.

Legal Representation

Filing a worker’s compensation plan or an insurance claim can be complex and stressful for the person with mounting medical bills, who is also unable to work. Retaining the services of a reputable attorney who specializes in this area of the law will reduce the stress and ensure the claim is unbeaten. The one issue the individual searching for a law firm to handle their claim should look for in an attorney is one who works on a contingency bases. This means that there will be no upfront lawyer fees and they will be paid once a settlement is negotiated on behalf of the person who has been injured.

Citations:

California Department of Industrial Relations – Division of Workers’ Compensation: http://www.dir.ca.gov/DWC/

 

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Work Environments and Your Rights as an Employee

Personal Injury Attorney

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By attorney Michael Ehline of Ehline Law Firm PC: A job is often a window into opportunity. There are many different facets of a working life that can provide more opportunity for you and your loved ones. Making sure that you have what you need for the remainder of your life can be the difference between a life that is always struggling and one that will keep care of you even after you stop working. Since this is the case, you need to make sure that the place that you have chosen to work is up to common standards and safe for you and your co-workers. If it isn’t, then what can you do about it?

There are many options in trying to make sure that your workplace environment is safe and appropriate for you and your fellow employees. You cannot and should not allow you or your counterparts be exploited or otherwise taken advantage of. Since this is the case, you can lobby for safer conditions, different hours, form a union, or other options. But what if it is too late and you or a loved one was injured due to the negligence of your employer?

Such a condition is unacceptable and must be remedied. If you are seriously injured or even out of work, you may be due compensation. Make sure that you contact a personal injury attorney about your workplace environment and find out your rights. Do not let the wool be pulled over your eyes. Such situations happen every day– don’t let it happen to you.

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