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Day Law Practice, LLC


Employment Law and Civil Rights
103 N. Adams St., Ste 203, Rockville, MD 20850
(301) 762-2675

"We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. . . . . For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that 'justice too long delayed is justice denied.'"

Martin Luther King, Jr., Letter from a Birmingham Jail

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Day Law Practice, LLC


Employment Law and Civil Rights
103 N. Adams St., Ste 203, Rockville, MD 20850
(301) 762-2675

"We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. . . . . For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that 'justice too long delayed is justice denied.'"

Martin Luther King, Jr., Letter from a Birmingham Jail

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The DAy law practice, LLC

I am Attorney Bill Day, and I have a total commitment to protecting your civil rights and preserving your job.  If you have been a victim of discrimination based on race, color, national origin, sex, sexual orientation, religion, disability, or age, or have been retaliated against for asserting your rights, I can help.  I have practiced since 1998 before the federal and state courts, the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and state Offices of Human Rights.  I work with people who have been discriminated against in the private sector, and I have extensive experience addressing the unique needs of employees in the federal government.  Whether you have been terminated, disciplined, denied promotions or accommodations for disability or religion, or need disability retirement, protection from retaliation for blowing the whistle in your federal employment, or even just need review of a severance agreement, I am here for you.  In every case, I try to give an honest evaluation and my best efforts.  I have provided more information about my work below.

Discrimination

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Federal law forbids your employer to discriminate against you on the basis of your race, color, national origin, sex, disability, age, or religion.  It also forbids your employer from retaliating against you for bringing a claim of discrimination or otherwise opposing discrimination.  In addition, depending on your jurisdiction, state law may provide you with protection from other kinds of discrimination, such as discrimination because of your sexual orientation.

Because federal law is complex and state and local law vary from jurisdiction to jurisdiction, it is important to make an informed choice about where to file.  To bring a case in federal court, a private sector employee must first file with the Equal Employment Opportunity Commission (EEOC), although many state agencies allow you to "cross file" with both the state and the EEOC. (Federal employees have different requirements, and must contact an EEO counselor at their agency within 45 days.  They do not have the option of going to state court.)  In some states, the only real recourse is to file in federal court. Fortunately, in the District of Columbia and some counties in Maryland, there are strong discrimination laws and the courts may in some cases may be more responsive than the federal courts.

Acting quickly and consulting an experienced attorney is the surest way to protect your rights, since there is often only a short window of opportunity in which to bring a case within the statute of limitations.

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Sexual Harassment


Sexual Harassment


sexual harassment

When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ . . . Title VII is violated.
— Harris v. Forklift Systems, Inc.

Combating Harassment

Sexual harassment is somewhat confusingly defined legally in two different ways: quid pro quo harassment and the creation of a hostilework environment.

 

Quid Pro Quo

Quid pro quo or "this for that" harassment involves the demand for or trading of sexual favors for a reciprocal benefit. e.g. the boss asks an employee for sexual favors in return for a promotion or even for just keeping the job.

 

Hostile Work Environment

The creation of a hostile work environment based on sex (or some other protected characteristic), results when the atmosphere on the job is permeated with discriminatory insult and ridicule that is sufficiently "severe or pervasive" to alter the conditions of the employee's environment.  A few severe incidents, or many offensive but less severe ones, may suffice to meet the legal criteria for a hostile work environment.   There is always a risk in reporting sexual harassment to one's employer that one will not be believed or that one will be retaliated against, but employees should be aware that in many cases, the employer will have a defense against a charge of sexual harassment unless the employee reports it.  Such choices are one reason why a prudent employee who is believes he or she is being subjected to sexual harassment should act promptly and seek legal advice.

Same Sex Harassment

While people often assume that sexual harassment involves a more powerful man harassing a female employee, this is not always the case.  Not only may these roles be reversed, but the Supreme Court has also recognized that sexual harassment may be inflicted by a member of the same sex.

 

Other Forms of Harassment

Although sex is the reason for harassment that may come most readily to mind, harassment based on other protected characteristics, such as race, is also prohibited discrimination that is actionable in the courts.

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Medical Leave


Medical Leave


Employees in Maryland and the District of Columbia who fall ill or have family members who are afflicted with serious illnesses are guaranteed a certain amount of time off without fear of losing their jobs under both federal and state laws.  The following is a summary of the more salient provisions of applicable federal and state laws:

Family Medical Leave Act (FMLA) (Federal) 

The federal Family Medical Leave Act (FMLA) allows employees to take up to twelve weeks of leave during the preceding twelve months to care for a serious illness in themselves or a family member.  Employees must have worked for 1,250 hours in the preceding twelve months, and their employer must employ at least 50 employees within 75 miles.  There are some additional requirements regarding providing the employer with notice if possible.  Employers are prohibited from retaliating against an employee for taking leave pursuant to the provisions of the Act.  For immediate family of members of the armed services, the Act has more generous provisions (military caregiver leave).

District of Columbia Family and Medical Leave Act

The District of Columbia Family and Medical Leave Act, while similar to the federal act, has more generous provisions.  It applies to employers with 20 or more employees (but not to federal employees).  Employers must provide up to sixteen weeks of leave in a twenty-four month period, and the employee has the option of using paid leave or not.  Employers are prohibited from retaliating against employees who invoke their right to take leave under the act.

Maryland Flexible Leave Act

The Maryland Flexible Leave Act  takes a different and more limited approach than the Family Medical Leave Act.  For people who work at employers who have 15 or more employees and offer paid leave, the Act requires that employees be allowed to use their accrued paid leave to attend to the illness of an immediate family member.  An employer may not fire, discipline, or otherwise discriminate against an employee who takes leave pursuant to the provisions of the Act.

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Blowing the Whistle


Blowing the Whistle


Blowing the Whistle

My own appreciation for the vital importance of laws to protect whistleblowers extends back to my childhood in Michigan.  My family moved to Michigan only a few years after the cover up of a chemical company's introduction of toxic polybrominated biphenyls (PBB) into animal feed poisoned the meat and milk of over 30,000 cattle.  I grew up on stories of farmers shooting and burying their entire herds, and for years my parents would only buy meat and milk produced outside Michigan.  Because employees of the chemical company had been intimidated into concealing the accident by threats to their jobs, it came as no surprise that Michigan enacted the first state whistleblower law in 1981.   Today, in addition to state laws, there are at least 18 federal laws intended to provide protection for whistleblowers in areas ranging from the financial sector to environmental laws to food safety laws. See, e.g., Jon O. Shimabukuro and L. Paige Whitaker, Whistleblower Protections Under Federal Law: An Overview.

Whistleblower Protection Act

The principal act providing for and protecting disclosure of waste, fraud, and abuse on the part of covered federal employees is the Whistleblower Protection Act.

Disclosures

The United States Office of Special Counsel (OSC) handles complaints of prohibited personnel practices and whistleblower disclosures regarding federal agencies pursuant to 5 U.S.C. 1213.  As stated on the OSC's website, the following types of disclosures fall within the OSC's jurisdiction:

DU attorneys review five types of disclosures specified in the statute: violations of a law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; and a substantial and specific danger to public health or safety. 5 U.S.C. § 1213(b). The disclosures are evaluated to determine whether or not there is sufficient information to conclude with a substantial likelihood that one of these conditions has been disclosed.

Federal employees may make disclosures to the OSC electronically.

Prohibited Personnel Practices (Reprisal)

The Whistleblower Protection Act also makes it illegal to take an adverse personnel action against a federal employee who has made a protected disclosure, and provides for three avenues to challenge retaliation for blowing the whistle:

  1. A federal employee facing an adverse personnel action (such as termination) may raise an allegation of retaliation for a protected disclosure of information as an affirmative defense in a proceeding before the Merit Systems Protection Board.
  2. A federal employee may ask the Office of Special Counsel to investigate an allegation of retaliation for making a protected disclosure, and the Office of Special Counsel can seek corrective action through the Merit Systems Protection Board.
  3. On his own, a federal employee may file an Individual Right of Action (IRA) claiming retaliation for a protected disclosure of information.

While an employee subjected to retaliation for making a protected disclosure should certainly investigate his legal remedies to the fullest, an employee contemplating making a disclosure should bear in mind that the law is at best an imperfect protection for those who have provoked the federal government.

 

 

© Charles Williamson Day, Jr., 2016. All rights reserved.

Disclaimer: This site is attorney advertising and informational in nature. It does not constitute legal advice. Persons seeking legal advice should consult with a licensed attorney in their jurisdiction. No link, comment, or email to or from this site constitutes or establishes an attorney-client relationship.