Employment Litigation

 
 
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P R A C T I C E    A R E A S  -   EMPLOYMENT LITIGATION

 

EMPLOYMENT LAW PRACTICE

 

We have substantial experience in many areas of employment law. We have prosecuted and defended many cases under the Fair Labor Standards Act (FLSA), dealing with the wage and hour laws. We are frequently defense counsel in matters involving discrimination under Title VII of the Civil Rights Act of 1964, and related statutes, involving sexual harassment, pregnancy discrimination, gender discrimination and other protected characteristics, as well as the alleged violation of individual's rights. Our practice also focuses significantly in the area of enforcement of non-competition, non-solicitation and related employment agreement issues.

 

We are also involved in the defense and enforcement of claims involving disability benefits, ERISA claims, and those involving claims under the Family and Medical Leave Act (FMLA). While we have, on occasion represented individual plaintiffs with meritorious claims, which we believes has expanded our ability to effective for our management clients, our practice focuses on the defense of claims involving employment issues as well as the enforcement of employment agreements, where appropriate, for our clients.

 

Keeping in mind the expense of the litigation process, we are vigorous defenders of our clients rights and are prepared to take cases to and through the trial process. Having said that, we pride ourselves on the extent to which we keep our clients informed as to the status of their pending matters, and always look at the cost-effectiveness in pursuing a particular course of action.

 

GENERAL EMPLOYMENT LAW INFORMATION

 

Below we have set out some general information about the employment relationship and the employment laws. This is general information only and should not be relied upon without further research and consideration of any specific laws, jurisdictional considerations, and many other matters beyond the scope of the information we have presented here. Please contact us, or other counsel of your choosing should you wish to discuss the laws that may apply to your particular situation.  


The law generally looks at employment as a matter of contract. Thus, in many questions of employment law, the first question is whether the relationship involves employment or some different kind of contractual relationship, such as independent contractor.
 
Generally

  • If the employer has the right to control what the person does, when she does it and how it is done, the relationship will be considered an employment relationship.
  • If the person is more like someone in business for herself, then she may be found to be an independent contractor and not an employee.

At-will Employment
The general rule of American contract law is that employment is at-will. At-will means that either the employer may fire the employee, or the employee may quit, at any time for good reason, bad reason, or no reason at all. For example, an employer who tells an at-will employee, "Great job, and because of that you are fired," can do so unless the discharge is for an illegal reason.

Job Security
While the general rule is that employment is at-will, many workers have job security. Where an employee has job security, the employer must have good cause to fire employees. There are four types of systems that protect the job security of workers by providing good cause protection to workers:

  1. Civil service systems protect many employees of public employers.
  2. Employees represented by unions with collective bargaining agreements with the employers are generally protected by good cause.
  3. Many teachers and professors are protected by academic tenure.
  4. Employees who have bargained for individual contracts of employment or who are covered by employer policy manuals, or other manifestation of promises that the workers have job security, are generally protected.

Employee Rights
Even at-will employees are protected from adverse action if the reason for that action is an illegal reason. Reasons that are illegal based on federal law include discrimination because of race, color, national origin, legal alienage, sex, pregnancy, religion, age, disability and union activity. Illegal sexual harassment on the job is employment discrimination because of sex. Most state laws protect workers on the same grounds as federal law and some state and local laws protect workers against discrimination based on some added reasons such as marital status, sexual orientation or preference. Employees of the government have rights based on the Constitution that include free speech, privacy and other constitutional rights.

Federal and State Regulations
Federal and state laws regulate some terms and conditions of employment.

  • Social Security provides minimum retirement benefits paid by the government to workers who have worked for a significant amount of time, with the amount of the payment determined by how long and how much the worker has earned and at what age she retires. Social Security also provides payments to workers who have become totally disabled. See Health Law: Social Security.
  • Federal laws further guarantees workers are paid a minimum wage. Many states have wage claim laws requiring employers to pay workers their wages in a timely fashion. The federal Family and Medical Leave Act (FMLA) requires many employers to grant unpaid leaves of absence for up to 12 weeks to employees who are sick or who need to take care of family members.
  • State and federal laws protect worker safety on the job. The federal Occupational Safety and Health Act (OSHA) sets standards for workplace safety. State Workers Compensation laws pay workers who are injured while working.
  • State Unemployment Compensation laws provide minimum payments for a limited period of time to workers who have lost their jobs until they can find another job.
  • The federal Employee Retirement Income and Security Act (ERISA) protects the pension and other retirement benefits that employers promise to provide their employees. See also Civil Rights Law: Discrimination, Gay & Lesbian Rights, Women?s Rights.

Discrimination ? In General
The Constitution and civil rights statutes protect individuals from a wide variety of kinds of discrimination by local, state and federal governments as well as many private actors. The Fourteenth Amendment to the Constitution is the source of protection against governmental discrimination because of race and sex.

  • The right to vote and to participate in civic activities, such as service on juries.
  • Discrimination in Civil Rights
  • Discrimination in housing
  • Discrimination in educational programs, etc.

Discrimination in Employment
Federal law prohibits employment discrimination because of race, color, national origin, legal alienage, sex, pregnancy, religion, age, disability and union activity. Most state laws protect workers on the same grounds as federal law. Some state and local laws also protect workers against discrimination for some added reasons such as marital status, sexual orientation or preference.

Employment Discrimination laws generally protect not only present employees, but also former employees and some people, like applicants for jobs, who never have been employees. Some state and federal anti-discrimination laws protect people from discrimination more generally than just employment such as:

  • 42 U.S.C. section 1981, a federal law that was originally passed after the Civil War, prohibits race discrimination in all contracts, which not only includes employment but also all other types of contracts as well.
  • The Americans with Disabilities Act (ADA) prohibits disability discrimination in public services and accommodations.
  • Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination because of race, color, sex, religion or national origin. This law applies to public employers and private employers with at least 15 employees, employment agencies, apprenticeship programs and unions. 42 U.S.C. section 1981 prohibits all race discrimination in all contracts, even between individuals.
  • The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination because a worker is age 40 or older. The coverage of the ADEA is similar to Title VII except that a private employer needs 20 employees to be covered.
  • The Immigration Reform and Control Act of 1986 (IRCA) protects an alien who is "lawfully admitted for permanent residence" from employment discrimination because she is an alien.
  • The Americans with Disabilities Act (ADA) prohibits employment discrimination against employees with disabilities.
  • The National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board rather than the courts, protects employees from discrimination by their employers because they have engaged in union activity. Most states prohibit employment discrimination on the same basis as federal law. Several state laws and some local laws also protect against discrimination because of marital status, sexual orientation or preference.

Making a Claim
Anti-discrimination law is generally based on either federal statutes, state statutes, or the Constitution. See Civil Rights Law. In order to make a claim under most of these statutes, it is necessary to file a complaint or charge of discrimination with an administrative agency of the government. Thus, a person claiming employment discrimination that violates Title VII, the ADEA, or the ADA must file a complaint with the federal Equal Employment Opportunity Commission (EEOC) or a state anti-discrimination agency as soon as possible after the discrimination occurs.

The exact time limits to make a claim are complicated because they depend on whether the state in which the alleged discrimination occurred has an effective law prohibiting such discrimination. The time limit is either 180 days or 300 days from the time in which the discriminatory event occurred. A claim of discrimination because of union activity must be filed with the National Labor Relations Board within six months of the discharge because of union activity. While there are some exceptions, the failure to file a complaint in time will mean that the discrimination cannot be challenged.

Enforcement Actions
While the NLRB alone enforces charges of union discrimination and the EEOC can start court actions to enforce Title VII, the ADEA, and the ADA, most times the person claiming the discrimination must bring an action in court to enforce the law. Once a person receives a determination by the EEOC on their claim, they have only 90 days to start a court action to enforce it. Enforcement actions can be brought in either state or federal court.

Proof of Discrimination
Most discrimination cases require that the employee prove that the employer acted with the intent to discriminate.

  • A statement by the boss such as, "I am refusing to promote you because you are a woman," is one kind of evidence that the employer discriminated intentionally because of sex.
  • Other evidence, such as proof that the person who won the promotion was less qualified than you, can also be used as long as it is sufficient to persuade a jury that the employer acted with intent to discriminate.

Title VII and the ADEA provide narrow defenses to claims of intentional discrimination where the employer can prove that national origin, religion, sex, or age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's particular business. There is no BFOQ defense to claims of race, color, or disability discrimination.

 

Title VII also prohibits disparate impact discrimination. Disparate impact discrimination occurs when an employer has a policy that in operation works to the greater disadvantage to minority group members or women than to everyone else. Even if the employer does not intend to discriminate when it uses such a policy, the employer violates the law where the policy is not related to the job the employees are to perform and is not necessary to the employer's business.

For example, a policy requiring that employees be a certain height and weight. Such a policy excludes more women than men, more Latinos than others. So, the employer can only continue to use the policy if it can prove that the height and weight requirements are related to the jobs employees perform and are necessary to its business.

 

Legal Remedies
The remedies for discrimination include what the law calls equitable as well as legal remedies.

 

Equitable remedies include

  • lost back pay
  • an order that the employee be reinstated
  • an order to the employer to stop discriminating.

Since the Civil Rights Act of 1991, the federal statutes prohibiting discrimination now provide for a jury trial for claims of intentional discrimination and also provide legal remedies to compensate for the pain and suffering the victims of discrimination have suffered and punitive damages to punish particularly egregious discriminators. Compensatory and punitive damages are subject to caps depending on the size of the employer and cannot exceed $300,000. While the victims of age discrimination cannot get punitive damages, the ADEA does provide for double damages when the employer's action is found to be willful.

 

Wrongful Termination
When an employee is discharged, the first question is whether the employee is protected by a job security system, such as civil service, a collective bargaining agreement, academic tenure, or other promise of job security made by the employer. If the employee has job security, the employer must have good cause for discharge.

 

Illegal Termination
Even if the employee is at-will and does not have job security, workers are still protected from termination for illegal reasons. There are many federal and state laws that make reasons for adverse employment action illegal. Discrimination because of race, color, religion, national origin, sex, age, or disability are all examples of illegal reasons for discharge that can be challenged.

 

Personal Injury
Traditional tort actions sometimes are also available to challenge discharges. Thus, employees treated in a completely outrageous way by their employers may be able to bring personal injury actions against the employer for the intentional infliction of mental distress.


One example is the restaurant owner, sure that an employee had stolen money from the cash register, acted in an outrageous way by firing workers in alphabetic order until the wrongdoer confessed.

Another action that might be available would be an action for defamation where the employer told the world that an employee had been fired for possessing illegal drugs when in fact the employee had not been in possession of drugs.

 

Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA) provides that private employers who:

  • have at least 15 employees
    or
  • are state and local governmental employers
    or
  • are employment agencies
    or
  • are unions

may not discriminate in employment against qualified individuals with disabilities. The ADA also protects individuals with disabilities from discrimination in public services and accommodations.

 

Violations
Employers intending to discriminate because of a disability violate the ADA. Even if they do not intend to discriminate, employers can violate the ADA by failing to reasonably accommodate the needs of an individual with a disability or by using policies that cause a disparate impact on disabled persons if the policy is not job related or necessary for business.

 

Disability Qualifications
Only a "qualified individual with a disability" is protected by the ADA. The definition of that term is quite complex. An "individual with a disability" is one who:

  • has a physical or mental impairment that substantially limits one or more of the individual's major life activities
    or
  • has a record of such impairment
    or
  • is regarded as having such an impairment

Commonly recognized physical impairments that may interfere with the performance of life activities include blindness, deafness, muscular dystrophy, cerebral palsy, cardiac problems, etc. Any mental or psychological disorder generally recognized by medical authorities, such as schizophrenia or manic depression that interfere with an individual's performance of major life activities is a disability.

Mere physical conditions such as being pregnant, left-handed, or having crossed eyes are not disabilities.

 

Major Life Activity
The term "major life activity" means things like walking, sitting, standing, seeing, hearing, breathing, speaking, performing manual tasks, caring for one?s self, learning, and working. Inability to work at a single job may not count because it is not substantial enough a limitation on the ability to work.

For example, a maintenance engineer suffering fear of heights, acrophobia, was not an individual with a disability because he could find many maintenance engineering jobs, even though he could not do one particular job that involved climbing ladders to get to equipment mounted high above the floor of a workplace.

 

Qualified
A person with a disability must also be "qualified." Qualified means someone who "satisfies the requisite skill, experience, education, and other job-related requirements of the [job] and who, with or without reasonable accommodation, can perform the essential functions of [the job]."

 

Essential Functions
The term "essential functions" means "job tasks that are fundamental and not marginal." So if an individual with a disability can do the essence of the job despite having a disability, the employer cannot discriminate against the person because of the disability. The employer also discriminates illegally if it fails to reasonably accommodate an individual with a disability who cannot do the job as it stands but could do it with some changes that are reasonable and do not create an undue hardship for the employer.

 

Reasonable Accommodation
The term "reasonable accommodation" means doing things like making facilities accessible to persons with disabilities, restructuring non-essential parts of the job, altering work schedules, modifying equipment or machinery, providing someone to aid the disabled workers. But an accommodation is not reasonable if it imposes an "undue hardship" on the employer's business by requiring "significant difficulty or expense" or a fundamental alteration of the nature of the employer's business. A person is not qualified if he poses a direct threat to the health or safety of other individuals in the workplace. Thus, a person suffering tuberculosis is an individual with a disability, but may not be protected by the ADA if the risk of contagion to others creates a threat to the health of others.

 

Does Not Protect
The ADA does not protect people because of homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, compulsive gambling, kleptomania, pyromania, psychoactive substance use disorders resulting from current illegal drug use. An alcoholic is protected but not if their current use of alcohol interferes with performance of the job or poses a direct threat to property or to the safety of others.

 

Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) entitles an eligible employee up to 12 weeks of unpaid leave of absence within any 12 month period for three reasons:

  • The birth or adoption of a child with the leave taken within the first 12 months the child is with the family.
  • A serious health condition of the employee that prevents them from performing their job.
  • The serious health condition of a spouse, child or parent requiring the employee's care.

Both men and women employees are entitled to parenting leave.

 

Eligibility
Public employers are covered by FMLA, as are private employers with 50 or more employees within a 75-mile radius of the employee's workplace. To be eligible, the employee must have worked for 12 months for the employer, having worked at least 1250 hours within the 12 months before the leave.

 

Pensions and Benefits
The law does not require employers to provide employees with pensions or other fringe benefits, such as health insurance, but federal law does give tax breaks to employers that do provide such benefits if the plans are "qualified" plans. The federal Employee Income Security Act (ERISA) regulates the pension and fringe benefit plans that employers provide their employees.

 

Pension Plans
Pension plans come in two basic forms.
Defined benefit plans provide retirement benefits where the employer promises to pay retirees a pension in a specific amount, with the monthly benefit set by a formula of years of service times final average salary times a percentage figure. The employer must contribute enough money to the plan on a regular basis so that there is enough money available to pay the pension benefits of all the retired employees as they come due. Another way of saying this is that the employer bears the risk if the funds it pays into the plan and the investment income earned on those funds are not sufficient to pay the pensions.

Defined contribution plans provide that the employer will contribute an amount into the plan on behalf of an employee with the employee typically required to also contribute, with each employee having her own individual account. The employee will have available at retirement the amount of money that is in her account at the time of retirement, "what you see in the account is what you get." This means that the employee bears the investment risk for her individual account.
ERISA establishes minimum standards for the coverage and participation of employees and the vesting of enforceable rights to a pension.

 

Welfare Benefit Plans
Welfare benefit plans are fringe benefit plans set up by employers for their employees to provide such benefits as health or life insurance, vacation benefits, sickness and accident insurance, daycare, scholarships and prepaid legal insurance. A promise by an employer to provide these benefits is not covered by ERISA unless a plan is actually established. Welfare benefit plans are covered by ERISA, but the law does not regulate the terms of the plans.


Employee Benefit Plans

 

Fiduciary
Employee benefit plans, whether pension plans or welfare benefit plans, that are covered by ERISA and that pool funds in the plan must have a fiduciary. A fiduciary is a person who manages the operation of the fund, including the investment of plan funds and the payment of plan benefits.

ERISA requires that fiduciaries must act for the exclusive benefit of the participants and beneficiaries of the plan and not for the interest of the employer that set up the plan. Fiduciaries can be sued if they breach their fiduciary duties.

 

ERISA Protection
Participants are employees covered by employee benefit plans regulated by ERISA. Beneficiaries are typically family members of participants who are entitled to benefits under employee benefit plans.

  • Both participants and beneficiaries of employee benefit plans covered by ERISA can sue to recover benefits due under the plan or to clarify their rights under the plan. ERISA also protects participants and beneficiaries against retaliation by the employer for claiming benefits under the plan and against discrimination to prevent them from obtaining benefits in the future. Thus, ERISA is violated if an employer fires an employee to prevent her pension benefits from vesting.