Employee Rights
As an employee, you possess certain fundamental rights defined by federal and state laws. The Fair Labor Standards Act (FLSA) is primarily responsible for protecting workers from wage theft and discrimination, providing a framework of employee rights in various areas. For example, both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) aim to provide a just workplace without discrimination or overtly adverse conditions.
Employee Misclassification and Overtime
Under the FLSA, it is impermissible for employers to misclassify workers in order to avoid overtime requirements. Many employees must receive a minimum of time-and-a-half pay when they work over 40 hours in a week. However, some employees are required to work on a salaried basis, making them exempt from overtime protections under the FLSA.
In order to be exempt from overtime, an employee must meet certain criteria. First, the employee must perform the duties related to one of the following professions: administrative, professional, executive, outside sales, or computer-related. Many of these professions should also require that the employee engages in professional knowledge that requires at least a four-year degree. Furthermore, this knowledge and the duties performed must be regularly exercised in the workplace in a meaningful way. In general, job titles alone are not sufficient to determine whether or not an employee may be exempt from overtime requirements .
Workplace Discrimination
The movement to secure equality for workers has been around for more more than a century. The 1940s saw the passage of the FLSA, which was one of the first large steps toward creating a workplace with defined rights for employees. Proper overtime pay and child labor laws are just a couple of provisions contained in the FLSA.
By the 1960s, a major step forward was made for women in the workplace when the Equal Pay Act of 1963 was enacted. It was not until the 1990s that discrimination based on disability was addressed. The Americans with Disabilities Act and the Family Medical leave Act outline the basic rights of disabled workers and their care givers. A number of other acts, such as the Age Discrimination in Employment Act, prohibit discrimination and harassment based on age.
Grievance Filing with State and Other Governmental Entities
If you feel that you have been wronged by your employer, you have the right to file a grievance with the U.S. Department of Labor. This can be done through telephone, mail, or via the Internet. Complaints of discrimination or harassment based on protected class status should be filed with the Equal Employment Opportunity Commission. There is a period of time, called the statute of limitations, in which you are able to file these claims. For example, most state statutes of limitations are two years from the time of the action.
Where to Start Legal Action
Several issues may lead an employee to take legal action against their employer, though this is typically not a course of action that is first considered. While the vast majority of employees are treated fairly and justly by their employers, there are instances when employment law is violated—or when such violations are assumed to be present.
Discrimination
A very common reason for which legal action could be taken against an employer is discrimination, and the vast majority of discrimination cases involving current and former employees are based on claims of racial or sexual harassment. Discrimination may occur in any workplace when any kind of difference is used to impact the treatment of an employee. For instance, discrimination might occur based on factors including but not limited to: The implementation of harsher job conditions, the denial of a promotion, assignment to undesirable shifts (or even termination) based solely on the above are all considered to be discriminatory actions in the eyes of the law.
Wrongful Termination
Another common reason for which legal action might be taken against an employee is for wrongful termination. Wrongful termination is considered to occur when the employer retaliates against an employee for filing a complaint—either against the company itself or against a superior. Such retaliation might include the reduction or elimination of hours, change in shift, or any other form of punitive action that the employer might take as a result of the complaint. Under federal law, employees are protected from retaliation and wrongful termination for complaints about wage and hour violations, as well as wage and hour complaints.
Harassment
Harassment is somewhat similar to discrimination; however, it can occur for any number of reasons. The range of harassment is fairly broad, from sexual harassment to any number of other conditions that might negatively impact the work environment for an employee. For example, any unwanted sexual advances, requests, or other verbal or physical conduct might be considered sexual harassment. In addition, creating an unwelcome and hostile environment might be considered harassment, with or without a sexual undertone. It is worth noting, however, that not all harassment can be considered wrongdoing on the part of the employer, and not all forms are considered to be illegal.
Wage and Hour Disputes
Wage and hour disputes are similarly common. When an employee is not compensated fully for the hours worked or for any overtime hours accrued, there may be grounds for legal action against the employer. It is worth noting, however, that there are certain jobs for which overtime pay and other considerations do not apply legally—for instance, some jobs in the medical field do not require overtime, nor do those that might be compensated based on commission. However, instances in which employees have not received their promised compensation might be grounds for a lawsuit against the employer.
What to Do Before Taking Legal Action
Before pursuing legal action against your employer, whether for an employment law issue or another matter, it’s best – and often required – to follow a series of steps to demonstrate that you’ve exhausted all other avenues for resolution. The actual steps you need to take will depend on the type of matter you’re facing, but the following steps are generally recommended.
Follow your company’s internal complaint process Whenever possible you should follow your company’s internal complaint process prior to filing a lawsuit. This may involve notifying your employer of the issue, in writing, and giving them time to respond. Some states also require employers to provide a certain amount of time and opportunity for work-related concerns to be addressed prior to filing a lawsuit.
Document events and conversations with your employer The best way to protect yourself while working through any disputes with your employer is to keep notes and/or copies of documents related to the matter. This may include writing down conversations with supervisors or managers, recording dates and times of meetings, saving emails or printed letters that concern the complaint and documenting any incidents you think may have violated your rights.
Review the terms of your employment contract or company policies Your company may have written and posted policies that specifically govern the actions of both employees and employers. These may contain details relevant to your situation, as well as what steps you’re expected to take following a dispute. Review these policies carefully before going further, and if necessary seek clarification from Human Resources.
Review the statute of limitations for your claim Certain employment claims have specific statutes of limitation. For example, allegations of discrimination require that you file a complaint with the Equal Employment Opportunity Commission (EEOC) within a specific period. Your state’s labor office may also require that you file a complaint with them before bringing a lawsuit.
Making a Claim Against Your Employer
In most circumstances, before you can file a lawsuit against your employer, you must file an administrative claim with the U.S. Equal Employment Opportunity Commission (EEOC), or its state equivalent. The EEOC is tasked with the investigation and enforcement of federal and state employment laws, such as Title VII and the ADEA. If you want to file a lawsuit against your employer but do not take the preliminary step of filing the administrative charge with an anti-discrimination agency, you may not be able to pursue your claim in court later on. In the state of Texas, the equivalent of the EEOC is the Texas Workforce Commission (TWC). Therefore, before you can sue your employer under Texas law for employment discrimination, you must file a charge of discrimination with the TWC. In general, a charge of employment discrimination must be filed within 180 days of the alleged discriminatory act. There are hundreds of components that go into filing and successfully resolving a charge of discrimination. For our purposes, let’s discuss the basics.
Hiring the Right Legal Support
If your situation is serious enough to consider pursuing legal action, you probably have a lot of questions about what to do going forward. Most importantly, "What kind of lawyer do I need?"
Unless you’ve had to hire an employment lawyer before, you’re probably not terribly familiar with how employment law works. In this section, we’ll explain how an employment lawyer can help resolve your issue and what you should look for while searching for representation.
Your situation is unique, and you need a lawyer with extensive experience both handling cases like yours and advocating at trial. The very name "employment lawyer" is a bit of a misnomer — employment lawyers aren’t just lawyers who handle employment-related cases: they are lawyers who handle employment cases.
An employment lawyer studies the law; an employment lawyer makes it her life mission to stay on top of new employment-related decisions at every level of court. That’s why researching their credentials — their background as a law student, their publication history, their organizations, and their awards — is so important.
Consider their experience.
The first question you should ask an employment lawyer is: "How long have you been practicing employment law?" (the answer should be "Several years" at a minimum). The second question: "How long have you been working on cases like mine?" As you’ll see in future sections , employment law is notoriously difficult to navigate. You’ll need a guide who knows the terrain inside and out.
A reputable employment lawyer will be able to answer those two questions very easily. That’s because they’ll have extensive experience in employment law, and they’ll know all the common pitfalls of the complaint process. So while you’re considering the answer to those questions, consider these ones as well:
If you’ve gone through the initial interview process and been made an offer, you may be focusing on your compensation and offer package more than the lawyer’s credentials. That’s natural. But that offer could cost you thousands of dollars if you don’t have the right advocate on your side. The right lawyer is going to make sure that your compensation is appropriate and that you feel valued, and that responsibility goes well beyond simply negotiating the job offer.
You’re facing down a behemoth company with deep pockets. They have lawyers on retainer who will defend them to the last penny. If you go into your case under-prepared, you’ll lose. And that’s why your employment lawyer’s past success matters.
Your employment lawyer should both have experience with your specific case and a successful track record in handling cases like yours.
Your employment lawyer should be someone credentials that you admire — and someone on whose wealth of experience you feel you can call upon during your case. If you don’t feel comfortable with your lawyer or don’t think they’re up to the task, you shouldn’t sign a contract or pay a retainer. Likewise: don’t hire a firm that can’t offer you the financial peace of mind that you deserve.
Understanding the Legal System and Your Options
The process begins long before there is an actual case. Once a potential client contacts a lawyer, information will be gathered to determine whether or not there is legal merit to the case. There are also practical considerations that will determine whether or not a lawsuit is appropriate. For example, if an employee is several years away from retirement age, or is older than 70, or has severe health problems that may impact future income, a lawsuit is less likely. Lawsuits are financially expensive; in addition to filing fees, there will be various costs from copying, ordering transcripts of depositions, travel to hearings, etc. If a lawsuit is appropriate, the lawyer will not take the matter on a contingency basis, meaning the client will be liable for the costs of litigation even if it is unsuccessful.
An experienced employment attorney will generally agree to a free consultation meeting with a client to learn the facts of the case. If the attorney believes a lawsuit may be appropriate, the attorney will ask for some documents to take to the office and review. Oftentimes, there will be more meetings or phone calls to get to the point where the attorney is able to make an informed decision about whether or not a lawsuit is worthy, and whether that attorney is the one to pursue it. If a lawyer believes a case is likely to recover a lot of money, it is common for the chosen attorney to sign up as co-counsel in the case instead of taking it on as lead counsel and seeking a contingency fee.
If it is determined that litigation is appropriate, at least a letter of intent will be sent to the employer, and several documents will be requested, such as payroll records. Oftentimes there will be especially important cases to be made on both sides, as the employer will want to present its side of the story and the employee will want the employer to have as little information as possible.
Unless a lawsuit is filed, the employer has no legal duty to cooperate in the process. A lawsuit needs to be filed to obtain discovery, meaning information about the lawsuit. There are two main ways to obtain discovery – interrogatories (written questions that the other party must answer) and depositions (question and answer sessions that occur in a person’s lawyer’s office). It is fairly straightforward to write out interrogatories, but it is very complicated and expensive to hold depositions, which is why most depositions are highly controlled and limited in scope.
The majority of employment cases settle before trial. Employers do not wish to pay attorney’s fees, and employers are concerned about what evidence might come out and whether they should make a settlement offer. Both sides have motivation to settle, which is a very different work environment than a divorce case. The whole group of lawyers working on either side of the case is likely to have experience in employment law. This makes each side risk averse in how they assess their case and their position in negotiations.
An employer will almost certainly make at least one settlement offer before the employee commences litigation, and will often make several. An employee will ordinarily need to take at least one deposition and obtain at least one court order to produce documents before even starting to negotiate. Both sides will generally be hesitant to discuss terms of a settlement during this period. As both sides proceed to expensive litigation, they will start discussing the case as being more than law, as being a negotiation, and will start to consider negotiating a settlement. If there seems to be a chance of "backsliding," the case may be dropped. Otherwise, one or both sides may file a pre-trial motion to try to get the case dismissed by the court.
If the case continues for several months or years, both sides will be able to assess the degree of success in litigation. Early on, there usually is not a good picture of whether or not all the money spent will result in any recovery. Many cases are lost, and a loss is acceptable for many employers who simply wish to remove a potential risk. After some time the employer gets anxious to settle, and costs high enough that the employee will wish to settle in order to avoid further court cost. By the end of the first year, most employment lawsuits have been settled. And if they are not, they will likely lose most of its value as the employer will be able to provide clear answers to previously unclear questions.
All this time, the employee has been able to collect unemployment. Unless the employer seeks to get the employee to commit unemployment fraud, the employer is unlikely to be able to get past overpayments and seeks restitution. Mediations are not common in employment law cases, but they can occur. Parties often talk about mediation, but until the case is filed and the parties begin to understand the factual and legal threats, neither is in a talking position. Mediations usually do not happen until the parties have agreed to exchange discovery.
Employment cases usually take a year to go through their first stages, and most cases settle after the first year. After one year, both sides should be more open to negotiating a settlement to move on. Putting a case in front of a jury is not usually a great outcome for either party, though it is sometimes necessary to protect an employee from an employer who claims that the conduct was not problematic.
Forms of Legal Risks
Pursuing legal action against your employer is not without its risks. In addition to the time and effort it requires, litigation can also be costly in a financial sense, potentially requiring you to pay for attorney fees and expert witnesses, as well as any filing fees. You will need to consider whether you want to risk spending money on a claim that may ultimately be unsuccessful.
In addition to the monetary cost of litigation, there’s an emotional cost to pursuing a lawsuit. Going to court can be a lengthy and emotionally-draining process that can take a toll on even the most prepared and composed individuals. You may also have to go through depositions and other challenges to your credibility , just as witnesses for your employer will try to poke holes in your claims.
Beyond the financial and emotional costs, you’ll want to consider how legal action could impact your current employment. Whether you win or lose the case, you might experience unwanted side effects such as:
Deciding whether it is worth it to pursue legal action against your employer depends on your individual circumstances and should be discussed with an experienced attorney in order to understand which route is most favorable to your situation.