Employment Issues

Employment laws define the employer/employee relationship, creating rights and obligations for both. There are numerous state and federal laws that prohibit unfair labor practices, unsafe work environments, and discrimination in the workplace.

• Harassment
• Wrongful Discharge
• Discrimination
• Unemployment Claims
• Whistleblower Suits

Fair Labor Standards Act (FLSA)
The FLSA is a landmark U.S. law that created the federal right to a minimum wage, which is currently $7.25 per hour, as well as the rule that employers must pay “time-and-a-half” for overtime work (i.e., 1.5x an employee’s usual hourly rate when they work more than 40 hours in a week).

It is also the law that puts limitation on certain types of child labor. For example, children under the age of 18 aren’t permitted to perform especially dangerous jobs; children under the age of 16 cannot work in manufacturing or mining or during school hours.

Family and Medical Leave Act (FMLA)
The FMLA creates the right for employees to take unpaid leave for specified family and medical reasons for up to three months, whether consecutive or intermittent. Intermittent leave is common in cases which require periodic physical therapy or doctor’s appointments and with employees whose conditions present at irregular intervals (i.e., they have good days and bad days).

The law applies to employers with at least 50 employees, and any employee taking FMLA leave must have worked for their employer for at least a year (and for at least 1,250 hours during their tenure with that employer). Employees asking for FMLA leave must have suffered a “qualifying injury,” which generally refers to medical conditions requiring ongoing treatment.

Employers cannot fire an employee because they become pregnant. They are also not permitted to place undue burdens on an employee who requires medical leave. However, employees have an obligation to promptly report their employer’s conduct if it violates the statute, and employees who quit due to the conduct (rather than address it directly) have a much more difficult time winning their claims.

Civil Rights Act
Employees are protected against discrimination in hiring, firing, and the setting of terms for their employment based on certain protected characteristics:

• Race
• Religion
• Ancestry
• Age
• Sex
• National Origin
• Disability

Furthermore, an employer cannot refuse to promote someone or provide access to training opportunities based on any of those protected classifications.

The Civil Rights Act also prohibits employers from creating job eligibility requirements which are intended to screen out certain individuals in a discriminatory manner, such as by creating a physical test unrelated to the role they are hiring for that someone with a disability could never pass.

Occupational Safety and Health Administration (OSHA) Regulations
OSHA is a federal agency tasked with keeping workplaces safe. It has the authority to inspect workplaces and to solicit feedback about their safety from employees. Employers are not permitted to retaliate against employees who report health or safety issues to OSHA. Nor can they punish employees who testify against them about workplace hazards.

National Labor Relations Act (NLRA)
Private sector employees are entitled to join unions so that they can collectively bargain for improved wages and other benefits from their employers. The National Labor Relations Board (NLRB) oversees the process by which employees decide whether to join a union and protects employees from unfair labor practices, such as:

• Interfering with attempts to unionize
• Punishing employees who discuss joining a union
• Discriminating against employees who report violations to the NLRB
• Refusals to engage with union representatives in collective bargaining

Americans with Disabilities Act (ADA)
The ADA applies to employers with at least 15 employees. If any employee requires an accommodation under the ADA, their employers must provide ADA paperwork for a physician to complete.

Accommodations cannot place an “undue burden” on the employer, which is determined based primarily on the costs of the accommodation balanced against the financial resources of the employer. Hence, very large companies typically don’t have a strong case for denying most accommodations.

Employers are required to engage in an “interactive process” to identify reasonable accommodations. The responsibility is not the employee’s alone to find a solution that works for both parties. A limited, unpaid leave of absence can qualify as a reasonable accommodation.

States and local municipalities cannot pass laws that conflict with or restrict federal labor laws, but they can, in cases, enact laws that go even further than federal requirements. When states do not have their own labor laws, employers must abide by the federal laws.

Employees have a right to a work environment that is not only free from avoidable physical dangers but also from unfair and discriminatory treatment from their employer and coworkers.

Examples of workplace harassment include:

• The use of racist language
• Comments about a coworker’s physical appearance, age, religion, or sexual orientation
• Prejudicial statements about an employee’s national origin

Employees who report a labor violation and are subsequently fired may have a case for wrongful termination. An experienced labor lawyer can advise whistleblowers of their rights and hold their employer accountable for both the original violation and for wrongfully discharging the employee.

Some employers, however, know they cannot fire employees for reporting valid issues in the workplace and instead retaliate in more subtle ways, such as:

• Reassigning an employee to a less desirable role
• Constantly changing an employee’s shift
• Reducing an employee’s hours, wage, or title
• Excluding an employee from training sessions

These behaviors are also impermissible and may require a labor lawyer to expose and defend against.