Practice Areas - Employment Law and Workplace Discrimination
The basic rule of employment law in the United States is that employment is considered to be “at-will” unless otherwise agreed upon by contract. Employment at-will means that both the employer and the employee have the right to terminate the employment agreement at any time, for any reason, with or without notice. Unless you are a union employee or have a contract that states the terms under which you can be terminated (i.e. “for cause” or “for good cause”), you are likely an employee at-will.
Over the past several decades, statutes have been created to protect employees from the employment at-will rule. For example, it is illegal for employers to discriminate against employees because of their inherent personal traits (race/ethnicity, gender, age, sexual orientation, disability, etc.) or because of choices employees have made that are protected by law (marital status, religion, etc.). Also, there are federal and state laws that govern how much certain employees must be paid, and whether they should be paid overtime.
There are also common law exceptions to employment at-will. Courts have found that there are situations where terminating or otherwise improperly disciplining employees is a violation of public policy. An example of this are so-called “whistleblower claims,” which arise when employees are terminated or discriminated against for reporting their reasonable suspicions that their employer is engaging in illegal activities. Many statutes now contain protections specifically for whistleblowers.
Also, employers may enter into contracts with their employees regarding terms of employment, severance agreements, and non-competition agreements. The law prohibits employers from breaching these contracts.
Employment litigation may be a way to resolve the issues that arise when an employee’s legal rights are violated. Below are descriptions of different claims that employees may have against their employers:
Sexual harassment includes conduct such as unwelcome sexual advances, requests for sexual favors, or verbal or physical harassment that is sexual in nature.
Retaliation is trying to cause problems for employees who have exercised their rights in the workplace. Employers may not retaliate against employees who engage in conduct protected by law. Whistleblower violations occur when an employer retaliates against an employee who reports illegal activity, refuses to commit an illegal act, or assists an investigation of possible illegal activity. Employees who suffer retaliation may have legal claims against their employers.
Discrimination is treating certain employees differently than others for no legitimate reason. Employers generally may not discriminate against employees based on age, sex, race, pregnancy, national origin, religion, sexual orientation, military status, or disability.
Unpaid overtime and wages happen when an employer does not pay an employee time and a half for any hours worked over 40 per week, or when an employer does not pay an employee at least the minimum wage required by law. Failure to pay wages and commissions happens whenever an employer does not pay an employee for any work performed for the employer. This law applies even if you do not receive an hourly wage—for example, you receive a salary, commission, or fixed sum for each piece of work you complete.
Class actions and collective actions are procedures that allow many employees to join together to bring legal claims against their employers. These procedures are especially useful when an individual employee’s claim would be too expensive to litigate alone.
Severance packages are legally-binding agreements between an employer and an employee in which the employer promises to give the employee some sort of benefit after termination usually in exchange for the employee’s promise not to sue the employer. Employees may be able to sue employers that do not honor their severance agreements.
The False Claims Act allows an individual who discovers that his or her employer is defrauding the federal government to bring a lawsuit against the employer on behalf of the government. If the lawsuit is successful, the individual may keep a portion of the recovered money as a reward.
The law allows employees to take unpaid leave from work under certain circumstances. Leave is generally available for medical treatments for employees or their family members, pregnancy-related reasons, treatment of disabilities, or military service.
Trade secret and non-compete agreements are legally binding employment contracts that limit an employee’s ability to use or share an employer’s confidential information or to work for an employer’s competitor. If these agreements are too restrictive, they cannot be enforced against the employee.
Employee benefits are employee compensation, other than wages or salaries, including things such as insurance, vacation, reimbursed expenses, company sponsored trips, and compensation for job-related injuries. Employers may not create or operate benefit plans that violate the law. The Employee Retirement Income Security Act (ERISA) governs certain types of employee benefits. ERISA establishes certain rules that must be followed by private companies that provide retirement plans, pension plans, or health-care plans for their employees. It also allows employees to sue in certain circumstances to enforce their benefit plans.
Defamation occurs when an employer lies or makes false accusations about an employee and the employee suffers some harm as a result. The false statements may be made to co-workers, potential employers, or other third parties.
Public employees have civil rights that may not be violated, including rights to privacy, fair discipline, and free speech. These rights are in addition to the other employee rights provided by law.
Breach of contract is a claim that an employee may bring to enforce an employment agreement that the employer is not honoring. The agreement may be written, oral, or implied by conduct.
Arbitration is an alternative to employment litigation for resolving disputes between employers and employees. Some employees, such as series 7 securities dealers, are required to arbitrate disputes.
The Workers Adjustment Retraining Notification Act (WARN Act) requires employers to provide 60 days notice to all employees being laid off in a WARN event. A WARN event is defined as a mass-layoff at a facility in which 50 or more fulltime, six-month tenured employees are laid off within 30 days of each other. Further, the 50 or more affected employees must comprise at least one third of the total employees working at the affected facility before the WARN event took place.
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