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Rice Law Office Blog

This blog reviews important legal issues including: personal injury, employee compensation, workers compensation, discrimination and wrongful termination.

Know Your Third Party Employment Rights: A Cautionary Tale for Employees and Employers

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As one employer recently found out, neither "primary" nor "secondary" employers may retaliate or discriminate based on FMLA protected conduct in a joint employment setting.

A recent fourth U. S. Circuit Court of Appeals decision addressing primary and secondary employer responsibilities under the Family and Medical Leave Act (FMLA) brings into question: Who's really responsible for the proper implementation of these important employee rights in the setting of joint employment?

In the case of Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017), The fourth US Circuit Court of Appeals reversed the lower court's decision on summary judgement and found that the plaintiff, had provided strong evidence that the city of Alexandria, Virginia was her primary employer despite the fact that it had engaged a third-party administrator and staffing company to administer the payroll for her position.

 

Facts of the Case

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Tips for Car Seat Safety in the Summer Months

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With summer here and school out, more and more of us are on the move in cars with kids in tow. 

As our little ones travel back-and-forth between daycare, camp, the beach and play dates, they'll also find themselves riding in other people's cars. According to the Center for Disease Control, 150 children between ages 0 and 19 are being treated in emergency departments across the country for injuries sustained in motor vehicle crashes every hour. With this in mind, it's important that we do everything we can to keep our children safe from road traffic injuries. Thankfully, there are small steps we can take which have a huge impact in securing that our children will get from place to place safely this summer. One of most obvious places to start is with our childrens’ car seats.

 

We all know it's important that we make sure our children are properly buckled up in a car seat. However, it can be a challenge to install a car seat correctly and even more of a struggle sometimes to wrangle wiggly kids into their restraints.  As a result, friends or caregivers who are tasked with transportation this summer but who aren't as familiar with your car seat, might have a hard time tucking your children in safely. 

 

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Worker's Compensation Laws: What happens if I'm hurt at work and my doctor gives me a note to return with restrictions? Does my employer have to take me back?

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We get this question all the time, because although New Hampshire law requires employers (with 5 or more employees) to provide injured workers with temporary alternative duty and an 18 month right to reinstatement, this is no guarantee that the employer will take the employee with restrictions back.

In fact, employers often refuse to provide work to injured employees who want to return but who require accommodations due to restrictions associated with the injury.  If this happens to you, there is help available.  An attorney experienced in both worker’s compensation and employment law can help injured employees traverse the rocky road of reinstatement by combining these two areas of law to maximize recovery and job protection.

 

ALTERNATIVE WORK OPPORTUNITIES & TEMPORARY ALTERNATIVE DUTY

Under New Hampshire worker’s compensation law, all employers with five or more employees are required to develop alternative work opportunities for injured workers.  This temporary alternative duty (TAD) is aimed at transitioning employees back to work during their period of recovery after a work injury.

 

RIGHT TO REINSTATEMENT FOR 18 MONTHS

Employers (with five or more employees) are also obligated to offer reinstatement to their  injured employees for up to 18 months from the date of injury.  The employee must request a return to the former position and establish that he or she is not disabled from performing the duties of the position with reasonable accommodation. 

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What workers’ compensation benefits am I entitled to if I get injured at work?

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Employees who suffer an injury at work may be eligible for additional coverage and workers' compensation benefits.  It’s important to be informed right from the start to get the greatest protection possible.

 

Worker’s compensation benefits include:

Wage replacement benefitsPayment for medical bills Job protections Payments for permanent injuries

 

In addition, some cases end up settling for what is called a lump sum settlement.  This is only entered into when both sides agree and it usually involves a final payment with an agreement to end the right to many of the benefits. 

The process for making a claim begins when the employee files a first report of injury to give notice to their employer of the fact that an injury took place at work. This notice then triggers a claim being filed with the Worker's Compensation insurance company who will then review the claim and make a determination as to whether they will cover the claim or not. 

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Personal Injury Blog Part 3: When can personal injury claims be combined with a claim for workers' compensation?

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When an employee gets hurt during and in the course of work, it is usually true that the "exclusive remedy" for the worker’s losses comes from the workers' compensation laws and the workers' compensation insurance company. However, that isn't entirely true. While the employee’s exclusive remedy against the employer comes from workers' compensation (assuming the employer carries workers' compensation insurance), the employee may also obtain damages or benefits from another person who is not the employer and who is responsible for the damages suffered. This is what's known as a "third-party claim."

 

Workers’ Compensation As The “Exclusive Remedy” for Injuries At Work.

Usually, if an employee gets hurt at work, the employee can make a claim for workers' compensation, but the employee cannot file a lawsuit against the employer. This is generally thought of as a good thing, because it means that employees who are hurt at work typically do not have to file a lawsuit with the time and cost that entails in order to get benefits.  Lawsuits are tough, and in order to get paid under a personal injury claim, the injured person has to prove that someone else was negligent and responsible for the injury. That’s a problem for two reasons.

 

First, not all injuries at work ARE caused by someone else. Often they are just bad luck, or might even be due to the employee’s own mistake.  Under workers’ compensation, these injuries are covered regardless of whose fault it is or if there is any fault.  As long as the injury is work related, it is covered, and that is a tremendous benefit. Second, personal injury cases can take years. In the meantime, the injured person might not be able to work, and the medical bills will continue to stream in.  In a personal injury claim (for an injury that happens outside of work), there is no built in coverage to help pay medical bills or to cover the lost wages that occur while the lawsuit is going on.  If the injured person doesn’t have health insurance, they are in a difficult place, as they can’t force the other person to pay for those bills until they can prove their case and show the other person was at fault. Similarly, lost wages are not paid as they occur, but only after settlement or a favorable judgment in court.  Last but not least, there is no guarantee of job protection for a person who is out of work for an extended time during the pendency of a personal injury law suit. 

As a result, people with serious injuries that occur outside of work have to hope they can prove someone else was liable, but they also have to figure out how to hold on financially while the lawsuit is pending.  This can be a huge stress, as the courts are backed up and this process can take time.

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Workers' Compensation - The clock is ticking if you are injured at work in NH 

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Most employees know that if they are hurt during and in the course of work that they are likely entitled to workers' compensation benefits to help them with their lost wages and medical bills as a result of their personal injury. Few employees are aware, however, of the time limitations for providing a notice of personal injury or filing a workers' compensation claim and the consequences of late filing are huge.

 

Employees who fail to complete a notice of injury or fail to also file a workers' compensation claim within the appropriate time limits might lose out completely in their benefits if they are not careful. 

Here is what you need to know about filing a notice, claim and appeal if you get hurt at work:

 

Notice of injury.  

Claims for workers' compensation injuries begin with something called a "notice of injury."

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How to Combine Early Retirement and Social Security Disability Applications to Maximize Benefits

Social Security Retirement benefits and Social Security Disability benefits are two different benefits administered through the Social Security Administration. Retirement benefits are paid to individuals upon reaching a certain age, while disability benefits may be paid at any age and are based on a finding of disability.

To receive retirement benefits, workers must be at least 62 years of age, but 62 is considered early retirement by current standards. Therefore, in order to receive the maximum available benefit, a worker must retire on or after full retirement age. Retiring before that date results in lower monthly benefits for the rest of your life. The other disadvantage to taking early retirement is that medicare eligibility for retired workers does not begin until age 65.

By comparison, disability benefits through Social Security can be attained regardless of age. The qualifying criteria is disability and therefore benefits are not reduced for age. Moreover, disabled individuals are eligible for medicare after 24 months from the their date of eligibility for benefits. The disadvantage to disability retirement is that it can take a year or more to get a determination of eligibility and as you wait, you cannot be working. This can be an untenable hardship for many people who cannot live without these benefits. As a result, some people opt to take early retirement when they might actually be eligible for disability retirement. A combination of these two benefits is possible.

While you cannot receive retirement and disability social security benefits at the same time, there is an exception. Individuals who take early retirement, but who are also disabled can piggyback these two benefits to avoid a gap in payment while waiting for approval. Here’s how it works. If you must stop working due to health problems, you can elect early retirement AND apply for disability at the same time. You can start to collect the early retirement benefits while you wait to hear about your application for disability. There is never any guaranty, but if you are found to be disabled, you will then receive retroactive payment for the difference between your reduced early retirement rate and your full disability rate. In addition, you will begin getting your full rate of benefits and keep getting them going forward. You will also qualify for Medicare coverage after 24 months. Of course, if are not found to be disabled or if you were collecting early retirement before SS says you were disabled, then social security will not pay you the difference and you would be paid at your early retirement rate for the rest of your life. For someone who was going to take early retirement regardless, the risk is limited; nothing ventured nothing gained.

This strategy is not for everyone, but for someone who is severely disabled, over the age of 62, but not yet at full retirement age, this could be a valuable strategy to maximize benefits.

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Personal Injury Blog Series - Part 2: What is a personal injury claim?

Personal Injury Blog Series - Part 2: What is a personal injury claim?

A Personal injury claim arises when there is a physical, mental or emotional injury, which occurs as a result of negligence on the behalf of another individual, business or other entity. Typically, personal injury claims arise out of "accidents" such as auto accidents, traffic accidents or slip and fall accidents where a person is injured due to the negligence of another. 

Where there is a personal injury claim, the victim may be entitled to compensation for damages resulting from the injury such as payment for medical bills, lost wages and compensation for pain and suffering.  Often there is insurance available to cover these losses.

To bring a personal injury lawsuit to recover compensation for damages resulting from an injury, the injured victim must establish that:

The other person involved in the accident had a "duty" to the victim which was "breached" due to "negligence" (or intentional wrongful acts) and which thereby resulted in injury and damages. 

Each of these terms has a particular meaning under the law which can vary from our common sense understanding. Therefore, most people find having a personal injury attorney can be a valuable resource in determining if they have a claim and if so, in managing the claim process. 

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Personal Injury Blog Series - Part 1: What types of injuries might require a personal injury attorney’s help?

Personal Injury Blog Series - Part 1: What types of injuries might require a personal injury attorney’s help?

When you are injured, through no fault of your own, often times it’s the result of someone else’s negligence. Whether it be a car accident someone else caused, a dog bite from a loose dog, an accidental slip and fall on the grocery store’s wet floor or some other form of painful bodily injury; the fact is, you wouldn’t have been injured, if somebody else had been taking care of their responsibilities. 

 

If you are wondering whether or not you should seek a personal injury attorney, here are four great questions to ask yourself in the process:

 

As a result of your injury, have you had to seek medical care? If the answer to this question is “yes”, then you should definitely consider the help of a personal injury attorney. Serious injuries usually result in huge medical bills and even if you’re lucky enough to have health insurance, you still have co pays and deductibles because of an injury someone else caused. The good news is the person who caused your injury may have liability, motor vehicle or home owner’s insurance which is intended to cover just this kind of loss and an attorney can help you with your claim.

 

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Free Information and Resources for Workers in New Hampshire

There are all sorts of free information resources available for employees facing time out of work, particularly for disability related to an accident or serious injury. You just need to know where to look...  Here are my top tips for FREE information regarding compensation and job protection for serious injuries, illness or disability:

1) Take advantage of the many offers by employment law firms to provide free phone consultations. At Rice Law Office, PLLC, we provide free phone case evaluations for injured or disabled workers who think they may have been unfairly denied compensation or job protection as a result of a serious injury, an illness or work accident. In addition, there are many good firms across the state of New Hampshire that would be happy to answer employees' questions regarding cases involving Worker's Compensation, disability leave, or Social Security benefits.  2) Search the internet to uncover an amazing amount of FREE information. It takes little more than a few tries at a search term to uncover reams of helpful articles on many topics, many of which are written by top legal professionals. Of course, you may have to wade through several ads for law firms and some junk, but good information is there. 3) Review information on government agency websites.  State and federal agencies offer tips, access to laws and regulations, and answers to frequently asked questions on their websites.  Here are a few of my favorites:

 

For employees with a work injury- visit the New Hampshire Department of Labor website at https://www.nh.gov/labor/ For state employees facing disability leave, accidental injury or retirement, visit the New Hampshire Retirement System homepage at https://www.nhrs.org/ For those who have been laid off or fired, the Department of Employment Security at http://www.nhes.nh.gov/ , or the Department of Labor website (same one as above) can be helpful regarding eligibility for unemployment benefits or wage claims (DOL).  If the disability or injury is so serious that it looks like you'll be out of work for 12 months or more, it's worth considering an application for Social Security disability. The SSA website is chock full of information, but beware there are lots of websites with addresses close to the official one trolling for your business, so be sure to use the correct address: https://www.ssa.gov/ Of course, there's also the federal Department of Labor website at https://www.dol.gov/, which can be helpful, but which won't necessarily give you the information you need specific to New Hampshire employee rights. Last but not least, are the websites for the New Hampshire Commission for Human Rights at https://www.nh.gov/hrc/ and the US Equal Employment Opportunity Commission at https://www.eeoc.gov/ . These websites provide information regarding disability discrimination and employee rights under the law.

 

 

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No Paid Family Leave for New Hampshire Workers, For Now

House bill 628, which sought to establish a state administered paid leave insurance program, died in committee this past month. The decision issued in February will send the bill to a subcommittee to study over the summer before the full committee will take it up once again in November 2017.

The bill as proposed would have created an insurance pool into which participating employees would contribute a percentage of their paychecks, thereby establishing a fund from which eligible employees could then claim back a portion of their weekly wage. The provision would have allowed for up to 12 weeks of family leave.

Governor Chris Sununu had articulated his support for paid family leave during his run for the State’s top office this past year. Unfortunately, there was no mention of funding for a family medical leave insurance program in Sununu's inaugural budget speech of February 2017.  With the house bill on hold and no money in the budget, it looks like paid family leave has been put on the back burner for now. However, there are still significant protections available for Granite Staters who need time off from work for their own serious medical conditions, disability, pregnancy, or to care for a child or family member. 

 

Understanding the Family Medical Leave Act For starters, the Family Medical Leave Act of 1993 (known as FMLA) provides eligible employees with the right to take up to 12 weeks off from work for their own serious health condition or to care for a new child or seriously ill relative. Under FMLA, workers can also take leave to prepare for family members’ military service. Even more leave is available for employees who need to care for a family member who is seriously injured in active military duty.  This is an incredibly important benefit for eligible employees, but there are very significant limitations to this federal law. These limitations have led state legislators across the country to seek expanded protection under the FMLA through local legislation. While the Family Medical Leave Act provides job protection for up to 12 weeks of leave from work, it does not provide pay during that period of time. Furthermore, not all employees are eligible under this federal law. FMLA only applies to employers in New Hampshire who have at least 50 or more employees located within a 75 mile radius for at least 20 weeks during the current or previous year.  Furthermore, employees are only eligible to take advantage of this leave protection if they have worked for the company for at least one year, and they have worked at least 1250 hours during the previous year.

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Flu Season: Managing Employee Absences and Vaccination Policy

New Hampshire does not require employers give paid sick leave to their employees, and that can lead to some complicated situations as we enter flu season. The flu can pose an inconvenience for any employer by impacting employee availability and productivity, but it also poses a challenge from a legal perspective as employers sort through how to manage absences and flu shots. 

Certainly many employers provide their employees with paid sick time voluntarily. This practice is good business for several reasons which go beyond philanthropy.  With the lowest employment rates in the country, New Hampshire employers have to remain competitive to attract and keep the best employees, and fair and even generous benefit packages are part of this effort. The other reason, of course, is that employers who might not want to offer paid sick leave as a cost savings measure may find they have made a penny wise, pound foolish decision.  The fact is, employers are more likely to lose money when they scrimp on sick leave by encouraging sick employees who can’t afford to lose a day’s pay to come into work, spreading their germs for all to share.  Many would argue the small cost of a well-managed paid sick leave policy more than pays for itself in greater employee satisfaction and less disruption to productivity.  

 As an added measure to reducing the impact of flu season, some employers also offer flu shots to employees.  Still other employers go so far as to make vaccinations mandatory.  While mandatory vaccination policies are generally viewed as lawful, there must be exceptions available. Specifically, employees may seek to opt out of vaccinations on the basis of religious beliefs and the protections offered under Title VII of the Civil Rights Act.  Employees may also opt out if they have a qualifying medical issue that would be exacerbated by the flu shot.  If your employer requires flu shots and you’d rather not participate, ask if there is an ability to opt out. 

For employees who need more than just a few days off from work, there may be other benefits or protections available to supplement sick leave. Extended illness or injury that is considered serious of disabling may qualify an employee for disability insurance payments and or job protection under the Family Medical Leave Act or the state or federal laws on discrimination. Employees who have been employed one year, have worked 1250 hours, and work for an employer at a location with more than 50 employees within 75-mile radius, are eligible for up to twelve (12) weeks of unpaid leave under the FMLA. The ADA and NH’s Disability Protection Statute RSA 354-A may offer right to accommodations or protection from unfair treatment related to your disability.  

Finally, employees who become ill or are injured in and during the course of work may be eligible for workers’ compensation, which offers not only payment for lost wages and medical bills, but compensation for permanent injuries and job protection in the form of alternative work and right to reinstatement.

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2017 Labor Law Training Seminar Offered

The Department of Labor has announced its labor law training seminars. They are open to the public, free and a great way for employers and employees alike to learn about the rights and obligations in the New Hampshire work place. Registration is easy, just follow the link: 

http://www.nh.gov/labor/news-events/events/index.htm

The seminars are offered on different dates and in different locations throughout the State of NH, and for your convenience are listed below. Please note that some sessions are already full, so visit the above link to check availability and to sign up.

 

Session dates and locations:

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US Department of Labor Takes Steps to Extend Overtime Pay Protections

New thresholds for overtime pay have some up in arms, while others are jumping for joy, claiming it's about time!

After 12 years, the United States Department of Labor has taken steps to extend overtime pay protections by updating the regulations defining which white-collar workers are protected by the Fair Labor Standards Act's minimum wage and overtime standards. As of December 1, 2016, any worker engaged in interstate commerce or employed by a business with more than $500,000 in revenues, must either be paid a minimum salary of $47,500 per year or be paid time and a half for any hours worked over 40. Likewise, the total annual compensation requirement for highly compensated employees (HCE) will increase from $100,000 per year to $134,004 per year. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

The minimum standard salary and compensation levels needed for executive, administrative and professional workers to be exempt had been $455 a week or $23,660 a year. As of December 1st, those weekly salaries will have to be a minimum of $913 a week. The rule does allow for employers to reach this minimum with lower weekly salaries, in some cases, such as non discretionary bonuses.

For those who question whether this new threshold has any fair relation to actual market rates or job descriptions, the DOL has an answer. This salary level and those to follow will be set to the 40th percentile of earnings for a full-time salaried worker in the lowest wage census region. (Currently that region is the south where workers in the 40th percentile earn $913 per week on average and $47,476 for a full year). The rule will require those salary levels be adjusted as necessary every three years.

Critics argue this rule change could lead to disastrous consequences for the economy as employers seeking to avoid the increased costs of salary or overtime will inevitably demote salaried workers to hourly positions and then cut or limit their work week to 40 hours per week. That may be true, but to meet demands of the work, they will likely have to create more jobs to take up the slack.

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Department of Labor Workplace Injury FAQ Part Two


From the New Hampshire Department of Labor official website.

How long is my claim open? 

Medical bills related to your injury remain the responsibility of the carrier as long as treatment is required. There are certain time limits for indemnity benefits depending on the circumstances of the case. See RSA 281-A:31.

How soon does Workers' Compensation start?

Workers' Compensation starts on the fourth day of disability (subject to a three day period). The waiting period is waived if the disability continues for 14 days or longer or if an employee returns to temporary alternative employment within five days.

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Department of Labor Workplace Injury FAQ Part Two

Department of Labor Workplace Injury FAQ Part Two

From the New Hampshire Department of Labor official website.

How long is my claim open? 

Medical bills related to your injury remain the responsibility of the carrier as long as treatment is required. There are certain time limits for indemnity benefits depending on the circumstances of the case. See RSA 281-A:31.

How soon does workers' compensation start?

Workers' compensation starts on the fourth day of disability (subject to a three day period). The waiting period is waived if the disability continues for 14 days or longer or if an employee returns to temporary alternative employment within five days.

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Department of Labor Workplace Injury FAQ Part One


From the New Hampshire Department of Labor official website.

Who pays for my prescriptions?

The insurance carrier will reimburse you for any prescriptions relating to your injury. They have 30 days from receipt of the request.

Can I see my own doctor?

This depends on whether or not your carrier is using a managed care program. If they are, you must choose a doctor within the network. If you are not subject to managed care, the choice is yours.

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What Damages Am I Entitled to Recover if I’m Injured in a Car Accident?

If you were injured in an automobile accident which was not your fault, you may be entitled to payment for your medical bills, damage to your vehicle, pain and suffering, lost wages, permanent injuries, and for other expenses incurred as a result of your injury. But that's only half the story. Usually, victims of car accidents leading to serious physical injuries also have significant lost time from work that puts wages, benefits, and job security at risk.

If you've been seriously injured in an automobile accident which results in lost time from work, medical bills, or lasting injury, you will want to immediately consult with an attorney who is experienced in BOTH injury and employment law to ensure you get the most protection available. An experienced injury/employment attorney will consider all the resources available to address your injury, but also to help you with your loss of income during the healing process. 

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Gender and Marital Status Discrimination is Alive and Well in the World of Hiring

I recently read an article on LinkedIn by a recruiter, Bruce Hurwitz, entitled "When interviewing for a job, lose the ring!"

From his bio, he is clearly a well respected leader in his field and his article caught my eye first because it touched on my areas of practice in plaintiff employment law, but it also struck me in a more personal way.  I’ve linked his article so you can read it for yourself, but for me, as a married working woman and a mom to three optimistic initiates to the workforce, it was sad to hear this kind of advice being given to people starting out, so I’d like to offer another perspective. 

You see, when I graduated from law school, this was common advice-- which I promptly ignored. Not only were we, as future female attorneys, told to take off our wedding rings for the interviewing process, but I had some friends who were actually told to start this practice well before the interviewing season, in order to avoid a ring tan line. Yes, seriously. None of our male classmates were giving this advice. In fact, I suspect if they had asked, the advice would have been to the contrary. Most likely, where gender stereotypes prevail, wearing a ring might be considered a positive thing for a young male. 

Let's face it, this advice was entirely based on prominent stereotypes about gender, marital status, and the assumed impact of these things on performance in the workplace. The assumption was engaged or married females would somehow be less committed, productive or dedicated to their job. Likewise, married male attorneys would benefit from this institution, creating greater stability and a desire to earn more to support their growing family. The assumption was that marriage meant babies, distraction and a decrease in quality and quantity of legal output when it came to women. By comparison, no one considered that fathers might choose to take time off or seek the dreaded "balance" in their work and family life. Instead, there was a bold assumption that men would work on, without distraction when and if babies came into the picture.

Back then, I took the truth of this advice for granted. I assumed that many if not most of the firms with which I interviewed, would judge me in some manner, probably to the negative, if I were to interview wearing my wedding band. (I will note, no one ever mentioned the size of the "rock" as also being intimidating to women or potentially belittling to my character even back then). While I acknowledged the fact of prejudice, I was not willing to hide my truth to avoid the consequence of it. Perhaps I was naive (I was), but despite being young and unsure of myself in many ways, I was clear about one thing; I didn't want to work for a firm that would hire me (or not hire me) on the basis of my marital status. I chose to marry, I had the right to marry (as many did not back then) and I was happy with my choice. 

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Five Things You Can Do If You Think You Have Been The Victim of Pay Discrimination On The Basis of Your Gender

1) Try to resolve the situation informally by meeting with your supervisor to discuss your concern.

Of course, this only works if the person that you believe is responsible for the discrimination is not your supervisor. If the person treating you unfairly is your supervisor, you might try contacting a human resource staff person or whomever is designated in your employee handbook to address workplace issues.

It's a great idea to review your employee handbook policies on discrimination before you undertake this step.  Further, if you are a member of the union, you will want to consult with your union representative. If the informal approach is inappropriate for your circumstances, you may want to consider more formal steps to resolve the situation, such as filing a discrimination charge.

2) Educate yourself about your rights 

Get educated about the laws and policies that impact your wage rights. You can visit the Equal Employment Opportunity Commission website which enforces the Equal Pay Act and Title VII of the Civil Rights Act of 1964. You might also want to visit the federal, or your state Department of Labor website, or contact an attorney who provides free consultations.  

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