- Posted on: Nov 3 2021
By: Ben Barlow
While the COVID pandemic focused energies on the legality of workplace covid restrictions and vaccine mandates, “run of the mill” employment problems have run amok. Both employers and employees are well-advised to recognize ways the pandemic continues to affect our shared concept of “work” and remind themselves that the laws surrounding the way we employ others or our rights in the workplace remain largely unchanged. Focusing on the changing nature of our work – be it telecommuting, relaxed workplace policies, or increased use of contract support, and forgetting the common areas where employers get into trouble or where employees have particular protections – is a mistake. Given attorney-fee shifting provisions in employment laws (laws that say that in particular cases an employee can seek not only damages but also seek to have an employer pay the employee’s attorney’s fees), lawsuits by employees can fairly easily devastate businesses – especially smaller businesses – that does not keep on its toes.
For both employers wanting to protect themselves and employees wanting to guard their rights, these are some key areas to keep in mind:
Overtime and Minimum Wage Laws
The Fair Labor Standards Act (“FLSA”) provides federal protections for employees – including basic rights to minimum wages, overtime, and workplace protections. States and the District of Columbia have their own wage laws that supplement the federal protections (States can offer more protections than are offered on the federal level, but they cannot do anything to reduce an employee’s federally granted protections).
While some law firms advise only employers or employees on how to understand wage laws or enforce their rights under them, Dunlap Bennett & Ludwig PLLC both defends employers and sues on behalf of employees and assists business clients create internal policies that mitigate the risk that an employee will have grounds for a lawsuit. By taking that approach, DBL believes it can develop expertise in both what employers and employees need and better prosecute and defend suits as a result.
Common ways employers run afoul of wage laws is in mis-characterizing employees (treating employees as exempt from minimum wage or overtime laws when they are not), incorrectly calculating hours, or having employees whose positions take them over state lines and trigger protections from other states or the District of Columbia.
Another common area where employers face lawsuits – especially in an era where work arrangements have become less formal as a result of COVID – is in their relationship with employees and their monitoring of employee’s relationships with each other. Employers cannot make employment decisions (not simply hiring, but the assignment of work, firing, etc.) for any of the following federally protected reasons:
(That means that these factors cannot play any role in an employer’s decisions)
- Gender association
Individual states and the District of Columbia might add to the list of federal bases – providing protections for sexual orientation or marital status. An attorney can assist both employers and employees as they understand just which federal and state laws govern their behavior or provide recourse when they have been discriminated against.
Just as seeking medical help early on can often address minor issues before they become large issues, seeking legal advice when drafting internal manuals and policies can often eliminate many potential discrimination claims before they arise. Good counsel can often help employees identify whether their treatment at the office goes beyond bad management to something for which the employee can seek damages.
Family and Medical Leave issues
The Family and Medical Leave Act (“FMLA”) allows certain employees (depending on the size of the company, etc.) to take up to 12 weeks of unpaid leave per year:
- In order to care for a family member with a serious health condition.
- For matters related to adopting or fostering a child.
- To have and care for a newborn.
- Because of their inability to work because of a serious health condition.
While employers cannot prevent employees from taking their FMLA leave, employers can require that employees follow a certain process for requesting leave. That is an area often misunderstood by employers and employees, both of who are aware of other laws dealing with the confidentiality of an individual’s health information. An informed attorney can help clarify what an employer needs to do and help employees understand when their legal rights have been violated.
Employees injured while on the job – when that injury has been caused in part by an employer’s negligence – may recover damages in a lawsuit. Worker’s compensation insurance will often cover such claims, but in an era where many large businesses are self-insured, personal injury lawsuits against employers are common. Employment attorneys are invaluable at helping employers avoid such claims and cases (through creating safety guidelines, policies regarding safety inspections, workplace training, and claims handling). In many instances, personal injury lawsuits result from employers mishandling an employee’s claim or not dealing with claims urgently.
Hopefully, with the assistance of counsel, employers can avoid workplace claims before they arise, and employees can quickly enforce their rights.
Posted in: Employment Law