Frequently Asked Questions
What different types of claims can employees bring?
There are many different types of claims that employees may bring against their employers. Some of the most common are sexual harassment, severance claims, breach of contract, age discrimination, gender discrimination, racial discrimination, wage and hour violations, and whistleblower claims. For more detailed explanations of these and many other claims, feel free to review our practice area summaries. Back to top
What is employment at-will?
Employment at-will is the default rule governing employment in the United States. Most employment relationships are at-will, which means that either the employer or the employee can terminate the relationship at any time, with or without good cause. The parties can always agree that the relationship is governed by a different standard (such as the requirement any termination be for “just cause”) through employment contracts and/or union collective bargaining agreements. Also, there are statutory exceptions and some public policy exceptions to the at-will rule, i.e. an employer cannot fire an employee because of his or her gender, race, age, or because the employee reported an illegal practice at work (whistleblowing), etc. Back to top
Am I an employee at-will?
Unless you are a union employee or have an employment contract that states the terms under which you can be terminated (i.e. “for cause,” “just cause,” or “for good cause”) you are likely an employee at-will. The at-will employment relationship is the default employment relationship in this country. Though, public employees may have additional protections, such as the right to be fired only for a good reason and the right to engage in free speech and political activities. Back to top
What is illegal discrimination?
Generally, it is illegal for an employer to discriminate against you, with respect to terms of employment, because you belong to a “protected class.” Under the federal law, employers cannot discriminate against you because of your race/color, national origin, gender, religion, age, or disability. Gender discrimination includes pregnancy discrimination. Minnesota and California state laws provide similar protections for these group members. California law also protects against discrimination based on ancestry, creed, sexual orientation, marital status, medical conditions, and denial of medical leave. Minnesota law prohibits discrimination based upon your creed, marital status, sexual orientation, and obtainment of public assistance. Differential treatment that is not related to your status as a protected class member may not be considered unlawful discrimination, but it may still be prohibited by your union agreement, employment contract, your status as a public employee, etc. For more information, please visit the NKA practice area summaries regarding discrimination. Back to top
What is illegal harassment?
Harassment is a form of discrimination. The most common harassment claims involve sexual harassment. Unwelcomed advances, requests for sexual favors, and physical or verbal conduct of a sexual nature can all qualify as sexual harassment when it affects an individual’s employment or it creates a hostile work environment. Harassment claims though are not limited to sexual harassment (see above “what is illegal discrimination” for a list of protected classes). Harassment is likely not illegal if it does not stem from mistreatment because of your association with a protected class. For example, if your boss treats you badly just because he or she does not like you, this kind of treatment is likely not considered illegal harassment. For more information, please visit the NKA practice area summary regarding sexual harassment. Back to top
Am I entitled to the same pay as my peers?
Generally speaking, an employer can decide to compensate its employees at different rates of pay. The Equal Pay Act, however, makes it unlawful for an employer to pay its employees differently on the basis of gender for the same work performed under similar working conditions. The law allows employers to compensate employees based upon a bona fide seniority system, merit, commissions, productivity goal, and based on any factor other then sex. Back to top
What should I do if I feel I am being treated illegally at work?
If you feel that you are being treated illegally at work, you should follow the established complaint procedure in your workplace. If the established procedure requires you to go to the person who is treating you illegally, then go to that person’s supervisor. Many times your concerns will be acted upon immediately, and your situation can be resolved in your favor. If your employer does not act upon your complaints in a timely manner, or if you experience retaliation because of your complaint (i.e. you are terminated, demoted, transferred, etc.), you may need legal help. It is important you contact an attorney or appropriate government agency immediately because you may have a limited time to act on your claims. Back to top
What can I do if I know that my employer is breaking the law?
If you believe or suspect in good faith that your employer is violating the law, Minnesota state law protects you from retaliation if you choose to report these violations to the appropriate government agency or to the employer itself. Reporting such violations is called “whistleblowing.” Federal law provides similar protections against retaliation for certain kinds of reporting of illegal activity. If you have made such reports and have suffered an adverse employment action because of it, you may have a claim under a whistleblower statute. For more information, please visit the NKA practice area summary regarding whistleblowing. Back to top
What is retaliation?
Retaliation generally takes the form of demotion, harassment, transfer, or termination of employment. Even a lateral reassignment can be retaliation if the reassignment will affect your ability for promotions or advancement. An employer may not retaliate against an employee who engages in conduct protected by law. Protected conduct may included opposing workplace discrimination against yourself or another employee, assisting an investigation of discrimination, refusing to engage in conduct you believe to be unlawful, asking your employer about your legal rights, or otherwise exercising your rights under the law. Employees also have the right to organize without employer retaliation. This right includes the right to join or assist labor unions, to bargain collectively through representatives of their own choosing, and to engage in other activities for mutual aid or protection. Public employees may have other protections in addition to those listed above. For more information, please visit the NKA practice area summary regarding retaliation. Back to top
Am I entitled to severance pay?
Employers are not required by law to offer an employee a severance package upon termination. Whether you are eligible for severance compensation under your employer’s internal policies may be determined by reviewing your employee handbook or other human resource materials. Often times, when employers offer severance packages, they require an employee sign a release of claims. It is very important that employees read carefully anything that their employers require they sign in exchange for severance compensation. For more information, please visit the NKA practice area summaries regarding severance pay. Back to top
What is a release of claims?
A release of claims, if signed by an employee, is an agreement that the employee will not bring any lawsuit against the employer for any stated reason connected to their employment. It is important to note, however, that some claims—like the right to minimum wage or overtime compensation—cannot legally be waived simply by the signing of a release of claims. A release is usually signed in exchange for a severance agreement, in which an employee will continue to be paid and/or receive benefits from the employer after their employment has ended. Employees should never sign anything they do not agree with or fully understand. Likewise, an employer cannot ask you to sign a release of claims or a non-competition agreement after you have begun your employment without first providing you some form of consideration, or additional compensation. Continued employment is not adequate consideration. Back to top
Am I entitled to take maternity or medical leave?
The Federal law requires employers who employ over fifty employees to provide up to twelve weeks unpaid medical leave. Minnesota state law applies to employers who employ over twenty-one employees, requiring up to six weeks unpaid leave. To qualify for leave under Federal law or state law, you must first provide your employer with one year of service. Federal law allows leave for the birth, adoption, or foster care of a child, and to care for a serious health condition of the employee or his/her own child, spouse, parent, or next of kin. Your employer may have a more favorable leave policy, providing a longer period of leave or providing some compensation during this time, so remember to consult your employer’s internal policies. Members of the armed services may also have additional rights and protections. For more information, please visit the NKA practice area summary regarding protected leave. Back to top
Am I entitled to receive retirement or welfare benefits?
Federal law does not require employers to provide employees with benefits. Therefore, whether you qualify for benefits can be determined through a review of your employment policies and perhaps your collective bargaining agreement if you are in a union. If you meet the definition of “participant” under the plan documents, and if you have satisfied the stated minimum service requirements, then you may be entitled to benefits under your employer’s sponsored plans. For more information on the laws that govern benefits, please visit the NKA practice area summary regarding employee benefits. Back to top
Is my employer required to provide accommodations for my disability?
The law requires a qualified employer to provide an employee, who is otherwise qualified for the job, with reasonable accommodations to assist the employee in performing the essential job functions, so long as the accommodation does not create an undue hardship on the employer. An employee with a disability who needs an accommodation to assist in the performance of necessary job duties should first discuss the need with the employer. Back to top
Can my employer prohibit me from working for one of its competitors?
Sometimes employers require their employees to sign agreements stating they will not work for other companies in the same line of business during, and for a limited time after, their employment. These agreements are most commonly entered as a condition of employment. If an employer requires a current employee to sign such an agreement during the course of employment, then the employer must give that employee some additional value (known as consideration) for signing the agreement. Generally in Minnesota, these agreements are valid if the restrictions are reasonable. Agreements can be found unreasonable, for example, if they restrict future employment for too long or if they are not necessary to protect the employer’s business. In California, however, these agreements are invalid if they restrain trade, i.e. the employee’s right to work. In California, such agreements may be found void if they are overly broad or restrictive. For more information, please visit the NKA practice area summary regarding non-compete agreements. Back to top
Can my employer make false or misleading statements about me?
If an employer made false statements about you at work or in a professional reference, it may face liability for the damage caused to your reputation. For a defamation of character claim, you must prove that your employer improperly made a statement about you to another that was unprivileged, false, and defamatory. Generally, in defamation cases against an employer, an employee needs to prove that the employer knew the information to be false and disclosed it for the purpose of harming the employee. For more information, please visit the NKA practice area summary regarding defamation. Back to top
What is the minimum wage?
The current federal minimum wage is $7.25 per hour. States may also set their own minimum wage to either provide employees with a greater minimum wage protection or to cover employers who are not susceptible to the federal law. Minnesota’s minimum wage is presently $6.15 an hour for larger businesses not covered by the federal minimum wage, and California’s is presently $8.00 an hour. For more information about your state, visit the U.S. Department of Labor's web site. Back to top
How can I tell if I was properly paid at the minimum wage?
Even if you are not paid on an "hourly" basis, you should receive at least the minimum wage for every hour that you work. Divide your weekly compensation for a given week by the number of hours you actually worked that week, and you should be earning at least $7.25 per hour. Back to top
When am I eligible for overtime compensation?
Typically, if you are a non-exempt employee, the federal law requires your employer to compensate you at one and a half times your normal hourly rate for any hours worked in excess of 40 during your work week. California law also provides overtime when an employee works over eight hours in a day, and overtime at a rate twice the employee’s hourly rate when the employee works over twelve hours in a day and over eight hours on the seventh consecutive day of work.
There are some circumstances when overtime can be compensated at a rate less than one and a half times your regular rate of pay, i.e. when you are compensated based on commissions or when your employer properly utilizes the fluctuating work week method. If you are not paid overtime, and you are a non-exempt employee, you may have a claim against your employer. For more details on whether you are an exempt or non-exempt employee, or any other questions you might have regarding overtime or minimum wage, please visit our other website at www.overtimecases.com. Back to top
Can my employer require me to work overtime?
Under the Fair Labor Standards Act, as long as they pay you properly, there is no limit to the number of hours your employer can require you to work. Back to top
I am a salaried employee, does that mean I am not entitled to overtime compensation?
It is a common misperception that being compensated on a salary basis automatically makes a worker ineligible for overtime compensation. If you are a salaried employee, your eligibility for overtime depends on whether you are a properly classified as an exempt employee. Back to top
If I am paid a salary, can my employer make deductions to my pay when I do not work?
There is no requirement that an employer pay its salaried employees for days they do not work. However, if an employer classifies the salaried employee as “exempt,” and does not provide that employee with overtime compensation, then the act of reducing the salary could jeopardize the exemption status and make the employee eligible for overtime compensation. In general, an employer will destroy the exemption by reducing a salary based upon the quality or quantity of the employee’s work. While an employer need not pay employees for weeks in which they do not perform any work, an employer generally needs to pay full salary during weeks when work is performed. Of course, there are some exceptions to this rule. For example, an employer can reduce a salary and still maintain an exemption if the employee is absent for one or more full days due to personal reasons. Also, deductions as penalties for major violations of safety rules, for the taking of protected leave, or for disciplinary suspensions are generally okay. Back to top
How can I tell if I am an “exempt” or “non-exempt” employee?
The FLSA requires that most employees receive overtime compensation for hours worked over 40 per week. "Non-exempt" employees are those who are covered by the FLSA's minimum wage and overtime pay requirements and consequently those employees who should receive the minimum wage and overtime pay. However, there are exceptions to this rule; jobs which meet certain requirements are considered "exempt" from the minimum wage and overtime requirements of the FLSA. You can tell whether you are classified as “exempt” or “non-exempt” by determining whether you receive overtime compensation for all hours worked over forty in a workweek. For information on the most common exemptions visit the exemption discussion on our frequently asked questions page on www.overtimecases.com. Back to top
I work for a company as an independent contractor, am I eligible for overtime compensation?
The law requires employers to provide employees with minimum wage and overtime compensation. If you are truly an independent contractor, then you are not an employee entitled to these protections. It is important to consider, however, that just because an employer considers you to be an independent contractor, this does not mean you are properly classified as one under the law. If you are misclassified as an independent contractor, then you may be able to seek unpaid overtime compensation (see the discussion below on how to determine whether a contractor is properly classified). Back to top
How can I tell if I am properly classified as an independent contractor?
Just because a company tells you that you work for them as an independent contractor, does not means you automatically are one. Further, just because the company issues you a Form 1099 instead of a W-2 for your taxes does not mean you are not an employee under wage and hour law. Every law has a different test for determining whether a person is truly an independent contractor. Under the Fair Labor Standards Act, you must be truly independent under the “economic realities” of your working relationship. Courts determine this reality through weighing several factors, including: (1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit and loss and the workers’ investment into the business, (3) the workers’ investment into tools and materials, (4) the degree of specialized skill and independent initiative required to perform the work, (5) the duration of the working relationship, and (6) the extent to which the work is an integral part of the employer’s business. No one factor is determinative. Ultimately in considering these factors, courts are deciding whether you truly operate as an independent entity or whether you are dependent upon and/or controlled by the company for which you work. For information on the independent contractor classification, visit the NKA investigations page. Back to top
Can my employer require me to work after I have punched out for the day?
There is no federal law explicitly requiring employers to pay employees for all time worked. However, if you are a non-exempt employee, who is compensated based on the number of hours you work, then your time spent working “off-the-clock” may lead to minimum wage or overtime violations under the Fair Labor Standards Act. For example, if you actually work fifty hours during a given week, but your employer only recorded and compensated you for work performed during forty-five of the work hours, then you may have a claim that your employer did not pay you time-and-a-half for the remaining five hours that you worked over forty hours in that week. Similarly, if your compensation divided by the number of actual work hours during a given workweek falls below the minimum wage, then you may have a minimum wage claim. It is also important to note that some states prohibit employers from failing to compensate employees for all hours worked, even if this practice does not lead to a minimum wage or overtime violation. Back to top
Can my employer avoid paying me overtime compensation by making me work less hours?
Generally speaking, if you work a lot of hours at the beginning of the week, an employer can ask you to work less hours at the end of the work week so that your total hours worked during the workweek does not exceed forty hours. It is generally not okay, however, for an employer to try to offset your work hours by crediting them to different work weeks, unless perhaps you are a public employee. This means that an employer cannot require you to work fifty hours one week, and then require you to only work thirty hours the next week to avoid paying you overtime. This is true even if the weeks are consecutive and fall in the same pay period. Therefore, under this example, the employer would have to pay the employee ten hours of overtime for the ten hours the employee worked in excess of forty in the first week. Back to top
Does my employer have to give me meal and rest breaks?
The federal law does not require employers to provide meal or rest breaks. California and Minnesota, however, do have such requirements. In Minnesota, employees are permitted to take a “reasonable” amount of time for a rest break after four hours worked and a “sufficient” amount of time for a meal break if they work an eight hour shift. In California all non-exempt employees are entitled to one, unpaid half-hour meal break during a shift greater than five (5) hours, and a paid ten (10) minute rest break for every four hours of work. A second meal break is required after ten (10) hours of work, or if you waive this break and took your first break, then the second meal period is only required after twelve (12) hours. If an employer does not provide employees with these breaks, the employees may be entitled to a “premium” worth the employee’s rate of pay for one hour of work for every violation. Back to top
Can my employer fire me if I file a lawsuit or complaint about overtime or minimum wage?
Any kind of retaliation against an employee for participating in a lawsuit or administrative proceeding under the FLSA is against the law. Back to top
What if I signed a contract or otherwise agreed to work without receiving overtime pay?
Generally, employees are not able to waive their right to overtime pay through implicit or explicit agreement with the employer. Regardless of the terms of your employment, your employer must pay you overtime if you are non-exempt under the law. Back to top
What is arbitration?
Arbitration is an alternative forum to public court for brining legal disputes. Arbitration may be used for resolving disputes between employers and employees. It is generally cheaper and faster than regular litigation, and arbitrators can often provide desirable expertise on the disputed issues. Employees may arbitrate disputes for many reasons. They may prefer it to a traditional civil lawsuit, or they may have an arbitration agreement with their employers. Some employees may be required by law to use arbitration to resolve disputes with employers—for example, Series 7 securities dealers. For more information, please visit the NKA practice area summary regarding arbitration. Back to top
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