An Introduction to Employment Law and What It Covers
Employment law is a body of laws that govern the relationship between employers and employees. It covers a wide range of issues related to the workplace and the treatment of employees. At its core, employment law is designed to protect the rights of workers and ensure fair treatment in all aspects of the employment relationship.
The scope of employment law is broad, including everything from hiring and firing practices to wage and hour regulations, workplace safety, and employee privacy. It encompasses both federal and state laws and can vary significantly from one jurisdiction to another. Because of this complexity, employment law is often broken down into several sub-categories, including labor law (which deals with the relationship between employers and labor unions), occupational health and safety law, and anti-discrimination law .
Understanding the fundamentals of employment law is critical for both employers and employees. For employers, it establishes the rules and regulations that must be followed to avoid costly legal disputes and ensure a safe and productive work environment. For employees, it provides important protections and rights that prevent mistreatment and discrimination on the job.
Employment law is intended to create a level playing field in the workplace, providing a framework for fair treatment and equal opportunity for all workers. By establishing clear rights and responsibilities, it helps to ensure that the employment relationship is one of mutual benefit for both parties.
Common Inquiries about Employee Rights
Below are some of the most common questions we hear from and about employees, and simple answers to each:
Q: Do I have the right to a raise?
A: No. Many employees think they are entitled to a raise every year, or simply because they have been with their company X amount of time, but raises are not mandated or required.
Q: Am I entitled to overtime pay?
A: Possibly. Many workers think they get overtime after 40 hours in a week, but it depends on your occupation, whether you are paid hourly or salary, your position, and other factors. If you do not get overtime pay and work more than 40 hours in a week, you should talk to a wage and hour attorney.
Q: What rights do I have against a hostile work environment?
A: To be free of an abusive work environment. That means one that is discriminatory, involves sexual harassment, bullying, or other illegal or abusive behaviors. But not all rude or crass behavior is illegal. If you suffer severe or pervasive harassment, bullying or discrimination, speak to an employment lawyer.
Q: When can I file a discrimination claim?
A: You can file a complaint or charge with an administrative agency at any time, but if you are fired, retaliated against, transferred, or discriminated against in any way, there is a time limit to file a claim in court. The time limit is usually 180 days or less after the event, so act quickly.
Answers to Questions about Employment Contracts
Writing an entire post on "Top Employment Law Questions and Their Answers" is an impossible task. So, in this post, let’s narrow it down to the subject of employment contracts, shall we? There are many, many questions I get about employment contracts, whether it’s an employer or employee asking them. In this post, I will try to address the most common ones.
What is included in an employment contract?
While there are a few different varieties of employment contracts, ranging from simple one-page documents to lengthy, complex agreements, an employment contract can be summarized as a document that describes when or how an employment relationship ends and also lays out the rights, obligations, and expectations of both parties during the course of the employment. It is important to note that an employment contract cannot have any terms that contradict the law. For example, a non-competition agreement is not enforceable in Massachusetts if it exceeds the time restrictions or geographic restrictions outlined in the statute.
What are some common questions about employment contracts?
There are many questions I get about employment contracts, either from employers or employees. Here are some of the most common ones:
Was I legally entitled to receive severance when I was terminated?
If someone signs an employment agreement that does not address the issue of severance payments, then no, they were not entitled to severance. If an employment agreement does address severance payments, then the terms of that agreement will determine entitlement.
As an example, I once represented a restaurant manager who was terminated from employment and sought severance payments pursuant to his employment agreement. The agreement did not lay out severance terms if the person was terminated for "cause." However, the definitions section of the agreement included the following language related to "cause": "If the employee engages in misconduct or otherwise acts dishonorably to the detriment of the employer, or is convicted of a crime involving moral turpitude, the employer shall have the right, in its sole discretion, to terminate the employment and the employer shall have no obligation to pay severance."
In this case, although the employee was entitled to receive severance payments in the event of a termination without cause, his termination was for cause under the above definition and therefore he was not entitled to severance. This was not exactly what he thought would occur when he signed the agreement but since the agreement was valid on its face, there was no recourse for him.
What should I look for if I have been asked to sign a new employment agreement or sign an amendment to an existing employment agreement?
If you have been asked to sign a new employment agreement or a revised employment agreement, there are a few important things to consider. Are you receiving a promotion, job title change, change in job responsibilities, or a raise in pay? Employers often disguise those increases by offering a new employment agreement or revised employment agreement. Previously negotiated terms of an old agreement should not be changed in a new or revised employment agreement unless you are receiving an increase in job responsibilities, job title, or pay. For instance, I represented an employee who signed a new employment agreement and as a result, lost four weeks of paid vacation time per year. Although he had received a pay increase, it was not worth the loss in paid time off.
Another important consideration is whether the new employment agreement or revised employment agreement has any onerous provisions regarding the post-employment period. For instance, some employment agreements limit the ability to apply for unemployment benefits after employment ends. Obviously, this should be considered carefully before signing.
A last consideration is whether the new or revised employment agreement creates new expectations for attendance, smoking, working hours, etc. This is important because an employee cannot simply choose to ignore the notice, and an employer might not be willing to simply overlook a post-employment violation. For example, I represented an employee who signed an agreement that prohibited smoking in any form (including vaporizers). However, a few months after signing the agreement, an employee was terminated for using a vaporizer in the workplace and it was determined that that was a post-employment violation.
How to Deal with Workplace Harassment, Discrimination, and Bullying
Employers and individuals often ask about whether certain types of conduct are "harassment" or retaliation, how to appropriately respond to complaints of harassment or retaliation, and what an employer has to do to investigate and correct the underlying behavior. Moreover, employers also face questions about their obligations in the event of claims of harassment, retaliation, or discrimination by or against non-employees, such as independent contractors or vendors.
Laws that protect employees from harassment and discrimination
Federal and state law protects employees from discrimination and harassment in the workplace based upon an employee’s race, color, religion, sex, age, sexual orientation, genetic information, national origin, citizenship, and disability. Under California’s Fair Employment and Housing Act, employees are also protected from discrimination and harassment based upon marital status, and sexual harassment because of their sexual orientation. Employees are also protected from retaliation for asserting their rights or alleging that they are victims of harassment and discrimination.
Questions regarding harassment and discrimination
I’ve been told by human resources that my behavior is considered "harassment." Is that true?
It depends on the specific behaviors. In many cases, employees can be asked to modify their behavior, education and counseling. However, in other cases, they may be subject to discipline. Harassment is defined as conduct that includes unwelcome and offensive verbal, visual, or physical conduct that includes negative comments or actions concerning a person’s religion, national origin, race and ancestry, color, sex, age, genetic information, sexual orientation, marital status, pregnancy, or disability. Harassment may consist of direct or indirect conduct, including, but not limited to, making jokes, using slurs, spreading rumors, and damaging a person’s property, and can also include conduct outside the workplace.
What should I do if I believe I have been sexually harassed?
If you believe you have been harassed or need to report harassment by a coworker, you should promptly report the conduct to your employer — usually to your immediate supervisor. If the supervisor is not available or you believe the supervisor is involved in the harassment, report the conduct to a higher level manager. Sometimes there is more than one manager in your line of supervision. Make sure to go to someone above that person in the chain of command.
We have a robust program to deal with claims of employee harassment and discrimination. Does that mean we can ignore claims by independent contractors or vendors?
Not necessarily. There are some employees who have made claims for harassment or discrimination, but the conduct was not committed toward them by other employees, but rather by independent contractors or other non-employees. Sometimes the independent contractors and other non-employees can be deemed employees under state and federal employment laws. The mere fact that they have been classified as independent contractors does not necessarily mean there is no liability under state and federal employment laws.
Resignation and Termination FAQs
Termination and Resignation:
Q: Never heard of constructive dismissal. I got up one day, just realized my employer was ignoring my ideas, not furthering me at all, started calling me names, did not acknowledge my skills or experience and just walked out the door one day. Am I entitled to any severance?
A: You may have a case for constructive dismissal and you may be entitled to some compensation. Speak to a lawyer that concentrates in employment law for an assessment. A constructive dismissal takes place when an employee is forced to quit against their will because of intolerable or hostile working conditions.
A finding of constructive dismissal is based on the view that the employer upset the essential terms of the employment contract by creating an atmosphere of hostility, sexual discrimination, intimidation, an unwarranted demotion or a reduction in salary, etc. While it is unnecessary for an employee to prove that the employer intended to make working conditions intolerable, the change should nonetheless be serious enough to "undermine the employment relationship". It is possible for an employee to establish that the employer has created such conditions without once raising his or her voice, without throwing anything or using any "bad" language.
Q: My company is saying the new law on severance agreements doesn’t apply to me and I don’t have to be given a chance to see if I can be accommodated for a disability prior to termination.
A: If your disability is related to why your employment is terminated, then yes, you are protected by the new law and you are entitled to compensation for your lost income. Further, you have a right to request accommodations which includes seniors being offered a more senior position within the Company, and you must be accommodated under the Ontario Human Rights Code prior to termination. If you are not offered this opportunity or given cash compensation , you may have a claim under the Employment Standards Act and the Ontario Human Rights Code for damages and compensation.
Q: Can an employer terminate someone for having an illness with a doctor’s note if the employee is not going to be able to return to work because of a disability for more than 13 weeks?
A: No, the employer should explore the accommodation obligations under the Ontario Human Rights Code, and find out the prognosis from the treating physician as to the ability to return to work and the timeline. The employer cannot jump the gun and say "I don’t want to deal with you if you are going to be off for more than 13 weeks." It’s not up to the employer to decide, it’s up to the doctor to decide.
The employer has to accommodate someone until undue hardship – meaning the situation is so burdensome that the employer cannot reasonably function because of the disability of the employee – is established. And that is a very high standard to meet.
Q: Why do I have to sign an employment contract? What do I get if I do?
A: An employment contract is an important document that sets out the terms/conditions of your employment with the employer. It can have any wording you want. It basically sets out the rights of the parties, the obligations of the parties, the objectives and what is expected as a result of the relationship. If you sign an employment contract and it has proper wording in it, you give up some of your rights in exchange for itemized agreed upon entitlements such as stock options, amounts owed on termination, etc. If it has improper wording on it such as a "none more favourable" clause, you may be stuck with whatever that clause states and walk away with items far below your entitlement on termination. Always seek independent legal advice prior to signing any contracts with a company.
Information on Employee Benefits, Leave, and Other Entitlements
The most frequently asked questions in employment law focus on employee benefits and leave entitlements. Questions abound not only on the administration of insurance programs such as health benefits and workers compensation, but also around the relatively new requirements for paid sick leave, including, if engaged in a multi-state employer group, requirements regarding leave to care for an employee’s small child, parent, grandparent, or sibling. In addition, FMLA requirements are understood by less and less of the workforce, in spite of a decade of experience with those regulations. The initial foray into compliance for most employers is to determine what federally mandated programs are applicable to their size business (in general, larger employers must comply with more governmental regulations). While the Family and Medical Leave Act (FMLA) is only applicable to employers with 50 or more employees within a 75 mile radius, its close cousin the New Jersey Family Leave Act (NJFLA) also offers people in New Jersey the ability to take time off work to bond with a child or deal with the serious health condition of an immediate family member. In addition, for employers with more than 30 employees in New Jersey, New Jersey Temporary Disability leaves of absence must also be instituted, as administered by the State of New Jersey. The comparable federal disability program, FMLA’s cousin the Family Medical Leave Act (FMLA), also offers disability benefits. If an employer provides more extensive disability policies, those policies must comply with Federal regulations and be appropriately recorded in documents provided to employees. As employers begin to tread into federal job protections, other questions may arise regarding employee health benefits and health benefit disqualification periods. Generally, an employer with 20 or more employees may not discriminate against employees on any basis protected under the law. That means that if an employer pays a male employee’s health care benefits, he must also pay for all female employees’ benefits. However, smaller employers are not so protected, and may not be able to afford to take on an additional financial responsibility such as that ot health care benefits. In addition, employers with less than 20 employees do not need to pay for their employees’ health welfare benefits (Obamacare). Paid sick leave is another area of protection that is gaining statewide notoriety. As of October 2018, Indispensable Solutions will be offering a third set of paid leave, through a PTO, Professional Time Off, policy which employees can access in order to schedule time away from work for even the most minor of health problems. Just as with previous FMLA requests, the employee simply needs to ask for that time off, however brief, without falling into the more complicated protections of NJFLA or FMLA. The complexities of hours paid and available for each leave of absence an employee requests is vast. For example, paid sick leave does not by itself offer the employee the ability to take leave at different times in the duration of the year. In addition, although FMLA leave permits an employer to fill the employee’s position with an alternative employee (although there are protections if requested FMLA is not taken), NJFLA does not allow the same freedom, leaving most employers with the task of finding another source of income for those missing days if the employer intended to pay for those sick days.
When to Get Legal Assistance for Work-Related Issues
You may find yourself with unanswered questions that make you wonder if you should be doing something different. What can you do about it? Seek advice from an employment lawyer.
How do you know whether you should seek employment legal advice? There are some signs to look for: When any of these things happen, there is a harbinger of something that makes you feel like you need to consult with an employment attorney.
Some lawyers offer free consultations either at their law offices or via phone. If the lawyer has never previously represented you and your issue is an employment matter, that is usually considered a free consultation. If you meet somewhere other than the lawyer’s office, make sure you have clarifying directions and/or a map to that location. Also, it’s wise to arrive 10-15 minutes early so you have time to collect your thoughts and paperwork, and know where to go.
To prepare for your meeting, gather up any paperwork you have regarding your employment situation, such as a doctor’s note, pay stubs, any past claims, any paperwork you’ve received from your employer, and anything else you might have . You want to provide the attorney with whatever history you have. Be as concise as possible when you summarize what happened and why you think it’s relevant.
You can expect several outcome possibilities from any consultation, as you should with any legal proceeding. One possibility is that the attorney simply gives you some guidance and sends you on your way. Most attorneys charge a fee that is in line with many other fields. Fees vary, depending on the attorney and the size of the firm. You can expect that a partner will have a higher hourly rate than an associate, for example, but both of them should have a good idea of how to answer your questions.
There may be a fee involved in retaining an attorney, however. You may not find that out until after the consultation. On the other hand, when meeting with an employment lawyer, the consultation or initial interview may be free.