Free Labor and Employment Articles | Free Labor and Employment Legal Articles

Legal Requirements for Lunch and Break Times

Tue, 14 Oct 2008 21:38:01 GMT

Federal law doesn’t require employers to provide breaks for rest or meals. However, it does regulate how breaks are provided and paid. State law also often provides additional protections to employees regarding break times and requirements.

Most of the federal regulations about break times derive from the Fair Labor Standards Act (FLSA). This law does not protect many salaried white-collar employees, such as executives or professionals in outside sales, creative work, computer programming, and other related fields. Unlike many federal laws that cover workplace standards, the FLSA applies to all employers in defined areas, regardless of how many employees the employer has.

There are special exceptions to this rule for some occasions and professions. Airline pilots, for example, are given a defined rest time. Children performing agricultural labor are also given more rest time.

Short Breaks

When employers offer short breaks (5 to 20 minutes), the law requires employers to pay for those breaks. They are considered work time, and count for wages and overtime calculations.

Employers are allowed to punish or dock employees for unauthorized breaks. The employee can also be punished for taking a longer break than authorized. Extra unauthorized break time does not have to be counted as work time. However, the employer must have previously explained that unauthorized break time will lead to punishment or lost wages.

Although federal law doesn’t require breaks, it does require employers to provide bathroom facilities. It also prevents employers from making employee use of bathrooms difficult. Most states do not require employers to provide short breaks.

Meal Breaks

Longer breaks provided for meals are not considered work time. Federal law states that employers cannot require employees to work during their meal break. For example, if an employee is interrupted by work assignments or phone calls and cannot take a full break, the employee must be paid for that time. Employees must be allowed to leave their work area, but not necessarily the employer’s premises.

There is an exception for instances when only one employee is on duty. In cases where there is only one employee, the employee does not have to be relieved of duty during a meal break. However, this is only when the employee consents; if the employee requests an uninterrupted meal break, the employer has to provide it.

Only 24 states require employers to provide a meal break during a full work day. These state laws generally require a 30-minute break.

Other Requirements

It should be noted that the federal Americans with Disabilities Act requires employers to provide reasonable accommodation to disabled employees with regard to break times. For example, an employee in a wheelchair might require a longer bathroom break than otherwise allowed. State disability laws also cover this area. The ADA does not set defined standards for what “reasonable accommodation” means in every instance.

While employers can require employees to take rest breaks or meal breaks, they cannot require employees to use their breaks only for a defined purpose. For example, employers can’t require employees to eat during their lunch break or go to the bathroom during a bathroom break.

For more information on break times, contact a labor and employment attorney today.

Making the Hot Seat even HOTTER:
The Top Ten Illegal Job Interview Questions

Tue, 27 May 2008 20:37:31 GMT

A job interview can be a stressful event. But when a potential employer asks unlawful interview questions, things can go from stressful to illegal. The legality of interview questions is based on federal and local laws, and questions about specific topics (such as race and religion) have been made illegal due to movements such as the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. If interview questions are relevant to a job, they are usually fair game. If they are not, however, they can be the basis of a Labor and Employment lawsuit, whether the applicant is hired or not.

Although HR departments today should be aware of questions that are prohibited to ask prospective employees, some hiring managers/companies are not so up-to-date. Many illegal interview questions are easily recognizable, but others might come as a surprise.

Where were you born?

This question might seem like idle chit chat when getting to know a person, but it could also be used to gather information about the applicant’s national origin; i.e. whether he or she is a US citizen. Although an employer can ask whether an applicant is authorized to work in the United States, it is illegal to ask about citizenship.

What is your native language?

An employer can ask an applicant whether he or she knows a language if it is required for the job. For example, if job responsibilities require an English-speaking employee to be bilingual, it is legal to ask whether the candidate speaks that language; i.e. Spanish, Tagalog, etc. However, it is illegal to ask an applicant about their native language, as this could be used to establish national origin.

Are you married?

This is another question that would seem like idle getting-to-know-you chit chat. But not only is this question the dreaded, fingernails-on-chalkboard inquiry for every single woman over thirty, it is an illegal interview question because an employer cannot discriminate on the basis of marital status.

Do you have children?

This question is illegal, as well, because an employer cannot discriminate on the basis of parental status. Even if the applicant brings up the fact that he or she does have children, an employer cannot press for further information during the interview, such as the age and sex of the child/children.

Do you plan to get pregnant?

This interview question is a definite no-no. In the past, employers asked this question to flag women who were likely to take a maternity leave. Nowadays, it is illegal to question what a woman’s plans are for future motherhood.

How old are you?

Give Grandpa a break! Some companies try to avoid hiring older workers for a variety of reasons, ranging from a fear of higher healthcare costs and absences to a social bias in favor of youth. However, with more and more elderly citizens staying in and returning to the workforce, hiring (and firing) on the basis of age is strictly illegal.

What do you do for Christmas?

This is another innocently-appearing question that would seem to be discussing travel around the holidays, but an employer cannot discriminate on the basis of religion, hence this question is illegal—as is asking about Good Friday, Yom Kipper, or Kwanza. If an employer is concerned about an applicant’s availability, it is legal to ask whether he or she can work on holidays and weekends, but not about specific religious observances.

Do you have a disability or chronic illness?

If a job requires some specific physical tasks, such as lifting heavy equipment and/or scaling tall buildings, an employer may ask whether an applicant could perform these tasks with reasonable accommodation. However, to ask about a specific health condition is illegal and must be avoided.

Are you in the National Guard?

Although some companies may find it disruptive when an employee leaves for duty, it is illegal to discriminate against an applicant because he or she belongs to the National Guard or other reserve unit.

Do you smoke or use alcohol?

Unless court ordered, when an employee is not on a company’s premises and not on the job; i.e. on-call, it is illegal to discriminate against their use of a legal product. Hence, it is also illegal to inquire about such extracurricular activities during an interview.

If you feel you have been discriminated against during a job interview, and were subject to illegal interview questions, whether you were hired for the job or not, contact a Lead Counsel Labor and Employment Attorney in your area today to learn more about your legal rights.

For more information about illegal interview questions, contact a labor and employment attorney today.

A Balancing Act: Family and Medical Leave Act Benefits

Thu, 06 Nov 2008 20:42:31 GMT

In 1993, the Family and Medical Leave Act (FMLA) was passed to help employees balance the demands of their jobs and important family issues. It is important for employees to understand their rights under FMLA so that they can appropriately plan for the care of their families.

Who is Eligible for FMLA Benefits?

Eligible employees who work for covered employers are eligible for FMLA benefits.

An eligible employee is defined as one who has been employed by his or her current employer for 12 or more months. There is no requirement that these months be consecutive. Further, in the 12 months immediately preceding the employee’s requested leave the employee must have worked at least 1,250 hours. The hours that may be included in the 1,250 required hours are defined by the Fair Labor Standards Act (FLSA). These requirements must be met by the time the leave commences, not by the time it is requested. So, for example, if a pregnant woman makes her leave request in February but will not begin her leave until May then she has until May to meet the 12 months and 1,250 hour requirements.

A covered employer is one who employs 50 or more employees for each working day during at least 20 calendar weeks in the current or previous calendar year. Public agencies and public schools are covered employees without regard to the number of people that they employ.

What are FMLA benefits?

Eligible employees who work for covered employers are eligible for up to 12 weeks of unpaid leave in a 12 month period for:

The birth and care of an employee’s new baby;
The placement of an adopted or foster child in the home of the employee;
Care of a spouse, parent or child with a serious medical condition; or
Care of himself or herself if a serious medical condition prevents the employee from working.

Each eligible employee may take up to 12 weeks of unpaid leave for any of the above reasons within one 12 month period. It is important to note that the total eligible leave is 12 weeks and it is not 12 works per incident or circumstance. Therefore, if an employee took 12 weeks of leave at the time he adopted a child and his mother later became seriously ill within 12 months of that leave then he would not be eligible for any other time off pursuant to FMLA until 12 months had passed since his first leave.

Applicability to Military Families

In 2008, FMLA was amended to permit a parent, child, spouse or next of kin to take up to 26 weeks of unpaid leave to care for a, “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

The specifics of FMLA are often debated and compared to benefits provided to employees in other countries. However, for many families FMLA provides important benefits and the flexibility to be a dedicated employee and a responsible family member.

Do I have to pay my employees overtime?

Fri, 19 Dec 2008 03:31:28 GMT

Generally, if you allow your employees to work overtime, or more than 40 hours in a one week period, the Fair Labor Standards Act (“FLSA”), which is a federal law, requires you to pay your employees premium pay, or at least one and one-half times your normal pay rate, for those overtime hours worked. However, the FLSA contains several exceptions to the overtime pay requirement for certain kinds of businesses and certain kinds of employees. Because overtime pay can cost your business a significant amount of money, you need to be aware of which employees are non-exempt, or subject to the FLSA overtime pay requirement, and which employees are exempt from the overtime pay requirement under some exception.

For instance, the overtime pay requirement does not apply to regular hours worked on weekends, nights, and holidays, so long as there is not more than 40 hours worked in one week period. In other words, you are not required to pay overtime to an employee solely because he or she works on Sundays. Likewise, if your employees are executive, administrative, professional, computer, or outside sales employees, as defined by the Department of Labor regulations, and draw a salary of at least $455 per week, or $23,660 per year, then they are exempt from the overtime pay requirement. Department of Labor regulations provide very specific guidance about which positions qualify as exempt, usually based on the types of duties that those positions involve. For instance, in order for an executive position to qualify as exempt, the worker’s duties typically must involve management responsibilities, supervision of at least two other workers, and authority to hire and/or fire other employees. Furthermore, these types of exempt positions usually must be paid on salary, rather than on an hourly basis.

Employees can be covered by the FLSA in two different ways. Employees are entitled to enterprise coverage if they work for businesses or organizations that have at least $500,000 per year in sales, hospitals, nursing homes, schools, or preschools. If there is no enterprise coverage, then employees may have individual coverage under the FLSA if their job duties involve them in commerce or the production of goods for commerce, like factory workers or people who travel to other states for their jobs. Domestic service workers, such as maids or full-time babysitters, also qualify for coverage under the FLSA.

You also have to be mindful of your employees’ duties when classifying them as exempt or non-exempt. Some positions require a worker to perform both exempt and non-exempt duties. Therefore, depending on whether the worker’s duties for that particular week qualify as exempt or non-exempt, you may or may not be required to pay that worker overtime, should he or she work more than 40 hours in a one week period.

Finally, some states have also enacted laws that mandate overtime pay in certain circumstances, or that provide for overtime pay that is more than the FLSA standard of one and one-half times the regular wage. If both the FLSA and a state overtime law apply to your business, you must pay whichever overtime rate is higher to your non-exempt employees who work overtime.

Can I Be Fired? Can I Quit? Understanding the Employment at Will Doctrine

Thu, 06 Nov 2008 20:44:08 GMT

In the absence of a formal contract that governs your working relationship with your employer, you are considered an employee at will. Many Americans are employees at will and it is, therefore, important for both employees and employers to understand the concept and a worker’s rights under this work arrangement.

What is Employment At Will?

Unless there is a contract or a collective bargaining agreement that expressly states the employment terms, an employee is an employee at will. That means that an employer may terminate the employee’s job with or without good cause and that the employee may quit his job for any reason.

Supporters of the employment at will doctrine argue that it promotes efficiency in the workplace. In order for a business to achieve its greatest potential, the employer and the employee must be productive and successful. It is important that the employer and the employee work well together. The doctrine recognizes that sometimes an employee and an employer do not work well together even though there is no tangible reason for the unproductive working relationship. Therefore, the doctrine allows either party to leave the relationship for any reason rather than be locked into an arrangement that is not working.

Exceptions to the Employment at Will Doctrine

Each state creates its own exceptions to the employment at will doctrine. There are some exceptions that have widespread agreement among the states and other exceptions where there is less agreement.

One exception upon which most states agree is the public policy exception to the employment at will doctrine. Forty eight states and the District of Columbia have created a public policy exception to the employment at will doctrine that prohibits an employer from firing an employee for reasons that violate the state’s public policy or a state or federal statute. For example, it would be illegal for an employer in these states to fire an employee because he is a member of a protected race or for complying with a state or federal whistleblower law.

Another exception that is recognized in more than one half of the states is the implied contract exception. This means that an employer may not fire an employee if there is an implied contract between the two parties, even if a formal written contract does not exist. This exception can be difficult to prove and it is the burden of the fired employee to prove that there was an implied contract between the parties.

While many employees assume that there is some kind of covenant of good faith that should be involved when dealing with an employee’s termination, only a handful of states have recognized that such a covenant exists. Most state courts have found that implying a standard of good faith or fair dealing would fundamentally change the employment at will doctrine.

Losing a job can be a frightening experience that requires an employee to make fundamental changes in his or her life. Similarly, accepting the resignation of a valued employee can be difficult for an employer. Therefore, it is important that both parties understand all of the laws that surround their employment relationship.

In this economy, Im afraid of being laid off from my job. What will I do?

Wed, 31 Dec 2008 02:21:51 GMT

In the case of some layoffs that involve many workers or an entire workplace, the Worker Adjustment and Retraining (WARN) Act may apply. If the WARN Act is applicable, then your employer may have to give you sixty (60) days notice prior to your layoff, as well as information regarding your rights and options. Likewise, your employer may be subject to the Trade Act, which mandates that laid off workers receive certain benefits and assistance.

In other cases, however, you may not be given any notice of your layoff; it is possible that your employer may simply close the doors to your workplace and completely cease operations. The good news is that all states provide services for workers who have been laid off from their jobs, such as unemployment insurance benefits, job search assistance, training and educational opportunities, and information about continuation of health insurance benefits.

You usually can access several of these programs through one location, which may be referred to as an unemployment office in some states, or a workforce development center in other states. Whatever its name, however, this office can be an invaluable resource in getting you back to work, and to supporting your family during this difficult and stressful time in your life. Not only can you get information about and assistance with filing your claim for unemployment insurance benefits, but you can also get help with searching and applying for jobs, drafting your resume, refining your interviewing skills, and other career-related assistance. Your local office might also offer assistance with job retraining opportunities and other educational development that might help increase your ability to find a job.

You can also seek technical support for your employment search through your local office. For instance, you can often access computers and printers to produce resumes and search and apply for jobs online. Your local office may also give you access to a telephone and a fax machine for contacting employers.

Another common concern in the event of a layoff is financial support. Unemployment insurance benefits are available in every state; the amount and duration of these benefits may differ from state to state. In any case, assuming that you have worked for a certain period of time and are not responsible for your layoff, you should be eligible for some unemployment insurance benefits on at least a temporary basis while you are looking for a new job.

If you are laid off, you might also be wondering about your continued eligibility for health insurance and pension benefits. Your local office can help you understand your rights to continue health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), if your employer had a group insurance plan. Furthermore, the Employees Retirement Income Security Act of 1974 (ERISA) has important provisions that allow you to protect your retirement savings after a layoff. Plus, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects you and your family from discrimination on the basis of any preexisting medical conditions that become an issue as a result of your layoff. Be sure to educate yourself about all of the benefits to which you may be entitled in the event of a layoff.

Employee Rights When a Job Ends

Thu, 11 Dec 2008 01:18:41 GMT

Leaving a job is not easy. If you are fired, downsized or laid off then you are likely nervous about the future and your own financial security. If you are leaving of your own free will to relocate or start a new job you might also be nervous and uneasy. In either case there are things that you need to be aware of so that you receive everything to which you are entitled to by law.

Layoffs

The first thing to remember when you are laid off is that you are entitled to receive your regular pay from the time you are notified of the layoff until the effective date of the lay off. The federal Worker Adjustment and Retraining Notification Act (WARN) requires most employers who employ 100 or more employees to provide 60 days advance notice of plant closings and mass layoffs. Employees must continue to be paid and to receive their benefits during that time. Some states also have laws that require certain employers to give specific amounts of notice prior to layoffs. Collective bargaining agreements and individual contracts may also provide specific notice requirements concerning layoffs.

After the notice period has ended and the employee’s job is complete, the employee may be entitled to unemployment benefits. The purpose of unemployment benefits is to help people who are unemployed, through no fault of their own, meet their financial obligations while they continue to look for another job.

A laid off employee, especially one with a family, is often worried about the cost of health care while he or she is between jobs. Accordingly, the federal government enacted the Consolidated Omnibus Budget Reconciliation Act (COBRA) which allows certain employees the option of continuing with the health care plan that they had under their former employer. Employees who qualify for COBRA will likely pay more for the same coverage since the employer will no longer be paying a share of the insurance premiums. Former employers may legally charge former employees up to 102 percent of the cost of the premiums. Typically, former employees must notify the plan’s administrator immediately after termination and can remain on COBRA insurance for up to 18 months.

Resignations

When you resign a position you are usually not entitled to unemployment benefits, although exceptions may apply. The reason is that unemployment benefits are meant to provide income to people who are not working through no fault of their own. So, if it was truly your decision to resign then you would not be entitled to benefits.

Health insurance is different, however, and COBRA does apply to people who resign on their own and who are entitled to COBRA benefits.

Fired for Cause

If an employer fires an employee because of the employee’s gross negligence or illegal activity then many of the rights and benefits afforded to employees who are laid off or who resign are forfeited by the employee. That means that the employee may be denied unemployment benefits and COBRA benefits in addition to any notice requirement prior to the firing.

The government has been careful to provide workers with a safety net if they find themselves between jobs. While workers still need to find work and find it quickly, these benefits can allow them to do so without losing their homes or filing bankruptcy and are, therefore, especially important in difficult economic times when many workers are facing the same challenges.

Possible Damages for Wage and Hour Law Violations

Tue, 21 Apr 2009 12:48:07 GMT

Most employees make an agreement with their employers that in return for going to work and performing their jobs they will be compensated with wages. The federal Fair Labor Standards Act (FLSA) defines the minimum wage and overtime pay, among other things. Many states have enacted similar laws that regulate the minimum amount that an employee must be paid in return for doing his or her job. Both FLSA and the similar state laws also define the penalties that may be imposed on an employer who violates the law.

FLSA Damages

Section 16(b) of the Fair Labor Standards Act instructs the courts on the amount of damages that are possible when an employee sues an employer for unpaid minimum wage or overtime claims. The law states that the employer may be required to pay the employee the amount of previously unpaid minimum wage or overtime pay that was not yet paid and an amount equal to that as liquidated damages. If the court finds that the employer failed to pay the employee minimum wage or legally mandated overtime pay then the court must award those damages to the employee. Attorney’s fees and legal costs may also be awarded to the employee by the court.

However, if the employer proves to the court that its failure to pay the mandated compensation was an act or omission that was committed in good faith and that the employer had reasonable grounds for believing that its actions were not a violation of FLSA then the court may use its discretion in deciding whether or not to also award the liquidated damages that are possible pursuant to the statute. If the employer cannot prove these elements then the court is not given discretion and must award the employee liquidated damages.

State Laws: The Massachusetts and California Examples

In 2008, a new law went into effect in the Commonwealth of Massachusetts concerning what an employee may recover if it is proven that his or her employer violated the state wage and hour laws. Massachusetts now requires a court to award an employee damages in the amount of three times the actual pay that was withheld. If an employee proves that he or she is owed pay under the state statutes then this award of treble damages is mandatory and judges do not have the discretion to issue lesser awards even if the employer acted in good faith. The law also requires Massachusetts employers to pay attorneys costs and litigation costs.

Other states such as California have also had recent legal developments concerning damages for wage and hour violations. For the past few years, California courts had been awarding punitive damages against employers who were found to have violated the state’s wage and hour laws. However, in December 2008, the California Court of Appeals held that punitive damages were not allowed for actions arising under the California Labor Code.

Every state has its own wage and hour laws and its own rules about what damages may be imposed for violations of those laws. Therefore, it is important to seek the advice of counsel in the state in which your employer is located if you believe that you have not received all of the pay to which you are legally entitled.

Who is Protected from Employment Discrimination?

Thu, 11 Dec 2008 01:41:49 GMT

Most working Americans are employees at will. That means that they may quit or their employer may fire them at any time for any reason or for no reason at all. However, the right of the employer to fire an employee, to refuse to hire an employee or to provide certain employee benefits is not unlimited. The employer must abide by all applicable employment laws that protect employees and potential employees from discrimination.

The Federal Laws

Since the 1960s, there have been several laws passed that were meant to protect employees from being discriminated against by their employers. That includes safeguarding protected classes of people from unwarranted firings, refusals to hire, unfair wages, unfair working conditions, unfair benefits, unfair transfers, unfair assignments, unfair access to company facilities and more.

The move toward codifying the antidiscrimination laws began with the Equal Pay Act of 1963. That Act prevents employers from engaging in sex based wage discrimination for men and women who perform substantially equal work in the same establishment. The Act applies to almost every employer in the United States.

In 1964, the Civil Rights Act was passed by Congress and signed into law. Title VII of that Act protects employees from discrimination based on race, color, religion, sex and national origin. The Act applies to all employers who employ at least 15 employees.

Older workers gained protection from discrimination with the passage of the Age Discrimination in Employment Act of 1967. That Act applies to workers age 40 and older as long as the private employer has 20 or more workers. It also applies to public employers, employment agencies and labor groups.

In the 1970s two significant antidiscrimination laws were passed. The first was the Rehabilitation Act of 1973 which prevented the federal government from discriminating against employees who have disabilities. In 1978, the Civil Service Reform Act was passed that had numerous prohibited personnel practices and was intended to promote overall fairness in the federal government employment arena.

In 1990, the Americans with Disabilities Act was passed and provided protection for qualified individuals with disabilities in the private sector and in state and local governments just as the Rehabilitation Act had done for federal employees 17 years earlier.

It is important to note that many states have additional protections for employees within their state. Those laws vary and some significantly expand the federal laws. For example, some states have laws that protect employees from discrimination based on sexual orientation. States are permitted to provide more protection to employees but they cannot reduce the protection provided by federal law. Most states have an office of equal opportunity or an equal opportunity commission that can provide you with additional information on specific state laws and protections.

The Responsibility of Employers

Employers must make reasonable accommodations for the protected classes described by federal or state law. That means, for example, that a person’s religious observances must be accommodated if it can be done in such a way as not to cause material harm to the employer.

Many argue that employment discrimination still exists in the workplace, however, the employment discrimination laws are meant to lessen the extent that discrimination affects employees and help level the playing field for all employees.

Employee Benefits Required by Law

Thu, 11 Dec 2008 01:43:35 GMT

In difficult economic times, most people are grateful for work. Most of us expect to work harder and to forgo bonuses and other perks. However, there are certain benefits to which all employees are entitled to by law and that should not be negotiable.

Minimum Wage

The Fair Labor Standards Act provides that a federally established minimum wage shall be provided to workers in the public and private sectors. From July 2008 –July 2009 the minimum wage is set at $6.55 per hour and that rate is set to rise to $7.25 per hour on July 24, 2009. Some states also have minimum wage laws. If an employee is covered by both the federal and state minimum wage laws then, pursuant to federal law, the employee is entitled to the higher of the two wages.

There are certain exceptions to the minimum wage requirement. Employees who earn, or expect to earn, at least $30 per month in tips are not required to receive minimum wage. Instead, their employers can opt to pay them $2.13 an hour and let them keep their tips. Employees under the age of 20 may be paid a reduced minimum wage of $4.25 an hour for their first 90 consecutive days on the job. Similarly, students who are working for school credit and disabled people who are working for community involvement may be exempt from minimum wage requirements.

Hours and Overtime

Federal law does not limit the number of hours that an employee can work each week. However, it does set a standard week at 40 hours and it requires an employer to pay employees overtime for any hours worked in excess of 40 hours in a given week. Overtime pay is defined as at least 1 1/2 times what the employee makes during a regular hour.

While some employers customarily pay overtime for work on weekends and holidays it is not required by federal law unless the employee works more than 40 hours in that given week.

Additionally, employees are usually entitled to certain breaks depending on the number of hours worked on any given day. The number of breaks and their duration are set by state law. While each state is different, many states do require at least a 15 minute paid break and a 30 minute unpaid meal break per 6-8 hour shift.

Leave Time

State law and employment or union contracts may provide employees with certain amounts of paid time off for situations such as illness, the birth of a baby or the bereavement of a family member.

The Family Medical Leave Act (FMLA) applies to certain employees who have worked for their employers for specific amounts of time and whose employers also qualify under the Act. Those who qualify are entitled to up to 12 weeks of unpaid leave for illness, to help a sick family member or for the birth or adoption of a baby.

While broad discretion is given to employers to negotiate their own employment terms, certain basic rights are provided by law to employees to help make sure that they are provided a living wage and humane working conditions.

Blowing the Whistle

Thu, 11 Dec 2008 01:45:54 GMT

Most Americans depend on their jobs. For most of us, our job is our livelihood and we are dependent on the money that it brings in to meet our living expenses. For many of us, our jobs are also a source of pride or accomplishment and play a large part in defining what we do with our days. For those reasons, most employees are hesitant to do anything that could cost them their job.

So, what does an honest employee do when he finds out that his employer is breaking the law? Is it possible for the employee to report the employer’s actions without losing his job?

Federal Whistleblower Laws

Congress has recognized that it is important to protect employees who report the illegal behavior of their employers in certain situations and that employees are understandably hesitant to report the actions of their employers for fear that they will lose their jobs, have their hours cut, or be denied benefits. However, employees are in unique positions to know if their employers are breaking the law and society has an interest in making sure employers comply with the law. For example, an employee might be aware that an employer is violating an environmental protection law and without the employee’s information the public might not be aware of the violation until serious consequences result from the violation. Or, an employee might be aware that the employer was discriminating against racial minorities or certain religious groups in its hiring practices and that information might never come to light without the employee’s reporting.

It is because of the unique knowledge of the employees and the societal interest in making sure that the laws are followed that Congress has enacted certain laws to protect employees from retaliation if they report the allegedly illegal acts of their employers. These kinds of laws are commonly referred to as whistleblower laws.

Blowing the Whistle

An employee must be careful in how he or she chooses to make his or her allegations known. Whistleblower protection only applies to employees who report their allegations through the proper channels. Typically, that means reporting the information to a supervisor, filing a complaint with the appropriate government agency or testifying against an employer in a formal proceeding. Whistleblower protection would not apply to an employee who shared his or her information with coworkers in the lunchroom or who sent out a mass e-mail to his or her peers.

Once the employee has lawfully made his or her allegations known to the correct people and the employer has retaliated against the employee then the employee has a strictly regulated amount of time in which to report the retaliation. That time varies by statute but may be as short as 30 days.

Since the first whistleblower law was passed in 1912, some workers have been protected for the lawful reporting of alleged illegal activities. However, today there are numerous federal and state laws that protect whistleblowers. While no system is perfect and some employees may still be intimidated into keeping silent, whistleblower laws encourage the reporting of unsafe and illegal acts for the greater good.

Unemployment Benefits

Thu, 11 Dec 2008 01:47:32 GMT

A job loss can be both scary and overwhelming. There are many details to attend to, not the least of which is finding a new job. However, while you search for a new job it is important to determine whether you qualify for unemployment benefits, what those benefits may be and how to obtain them in order to make your unemployed time as secure as possible.

What are Unemployment Benefits?

The Federal - State Unemployment Insurance Program provides benefits to unemployed workers who qualify for benefits under state law. The benefits vary from state to state but are typically calculated as a percentage of the unemployed worker’s income over the past year up to a state maximum amount. The length of benefits also vary from state to state, however, they usually cannot exceed a maximum of 26 weeks as set by federal law. In times of high unemployment, the 26 week time limit may be extended.

Unemployment benefits are intended to provide workers who are temporarily out of work, through no fault of their own, with enough money to meet their basic needs while they continue to look for work and obtain gainful employment.

Who Qualifies for Unemployment Benefits?

In order to qualify for unemployment benefits, a worker must be unemployed through no fault of his or her own. It is up to each state to define what “no fault” means for unemployment purposes. While each state defines “no fault” differently, the term typically does not include people who left their job voluntarily. No fault does usually include people who are fired because of downsizing or company closures.

Also, a worker must have been employed for a “base period” of time, as defined by state law. That means that the worker must have been employed for a specifically defined amount of time, or more, immediately preceding the unemployment period. Many states define base period as 4 of the 5 calendar quarters immediately preceding the unemployment date.

If the state determines that you qualify for unemployment benefits then you will be required to file regular reports to continue to remain eligible. Those reports are filed weekly or biweekly depending on state requirements. The reports ask the unemployed person whether the person is still unemployed, whether the person has worked at all for the time period being reported on and what his or her earnings have been and, whether the person has refused any job offers. Some states also require unemployed people to register with the state employment office so that the office can provide assistance in finding work.

If unemployment benefits are denied, the applicant has the right to appeal. It is important to note that the unemployment office will contact the applicant’s former employer who can also appeal the granting of benefits to the unemployed person.

How does One File for Unemployment Benefits?

If you find yourself in a situation where you may be eligible for unemployment benefits then you should contact your State Unemployment Agency as soon as possible after you lose your job. Different states have different ways of filing unemployment claims. You might be required to file in person or by regular mail or you may be permitted to file by telephone or via the internet. Your state unemployment agency website should have all of the information that you need to complete your filing requirements.

Unemployment is a stressful time. Unemployment benefits are intended to provide people with the resources they need to remain on their financial feet while seeking a new job. So, if you are you unemployed then you should contact your state unemployment agency in order to determine your own eligibility for these important benefits.

How to Negotiate a Successful Severance Package

Wed, 01 Apr 2009 02:07:21 GMT

Emotions can run high when an employee is laid off from a job. Many employees want to simply pack up their personal stuff, leave and begin moving on with their lives. However, before they can begin moving on there are certain things that need to be taken care of including negotiating a severance package.

A severance package refers to the benefits that the employer will pay an employee who has been laid off from the business. Unless there is a company policy or an individual employment contract that entitles an employee to specific severance benefits, an employer is typically not required to provide any specific benefits to employees when they are laid off unless they are in a state which requires severance pay for employees who are laid off in large numbers or because of the closing of a business.

Severance Pay May Be in the Employer’s Best Interest

It is often in the employer’s best interest to provide a severance package. Employees who are laid off are often emotionally hurt and may no longer be loyal to their employers. A severance package may not take the entire sting out of a lay off but, as time passes, it may help the employee remain loyal to the business and not share things that the employer would rather remain within the company. Further, it can lessen the possibility of lawsuits, particularly if severance packages were provided to other employees of the business in the past.

Items to Negotiate

Knowing that an employer may be motivated or in some cases required to provide a severance package is important to an employee who is trying to negotiate a successful severance package. It is also important for the employee to know the possible things that can be included in a severance package:

Money: This is at the top of most employees’ lists of things to negotiate in a severance package. Most often, employees are provided with their typical paychecks (based on their salary or hourly wage) for a certain amount of time.
Insurance: While laid off employees are entitled to COBRA benefits to extend their health care insurance, COBRA is expensive. Many employees are concerned about having their employer continue to pay its share of the health insurance premiums for a definite amount of time following termination.
Employment Services: This section of a severance package may be one where the employer is most willing to negotiate and one that can provide the employee with the most long term benefits. Employers may be willing to pay for job placement assistance, job coaching or professional resume writing, for example.
Unpaid Vacation Time: Some states require employers who lay off employees for reasons other than just cause to pay out the employees unused vacation time benefits. Many employers in states that do not require the payment are willing to pay employee’s unused vacation time, as well. So, employees should be sure to have an accurate accounting of their unused vacation time and make sure that it is reflected in the severance agreement.
Stock Options: Many times employees only have 90 days after they become disassociated with their employer to exercise their stock options. Employees may be hesitant to take the risk within 90 days either because they are still unemployed or because of current market conditions. Employees may be able to negotiate to extend the typical 90 day limit to exercise their options, however.

How the items described above should be included in an individual package depends on the priorities of the employee who is receiving the package. Employers find it important to remain consistent on the financial aspects of severance agreements. However, that should not dissuade employees from negotiating and making the best case possible for inclusion of the things most important to them in a severance package.

Laid Off? Things to Take Care of Immediately

Wed, 01 Apr 2009 02:08:05 GMT

Everyone reacts to a job lay off in their own individual way. Some people panic and try to find another job immediately. Other people relax and take some time off. No matter how you react, however, it is important to take care of certain things that will prove to be important to your future.

Immediately following your lay off you should make sure to take appropriate actions concerning:

· Your vested stock options: If you have vested stock options with your company that you have not yet exercised then you need to speak to your human resources representative about how many days you have to exercise those options when you are terminated. While you are not required to exercise the options, you will forever lose them if you do not exercise them within the required time frame.

· Your Health Insurance / COBRA: federal law allows employees who have been laid off to continue their medical insurance for up to 18 months following their termination. This coverage, known as COBRA, is often very expensive for employees because it requires employees to pay both the share that they were paying prior to their termination and their former employer’s share. However, it is often less expensive than seeking health insurance privately. Employees have 60 days from their last date of employment to elect COBRA coverage.

· Your Other Insurance Benefits: you should also talk to your human resources representative about any other types of insurance that you have through your employer such as vision insurance, dental insurance, disability insurance and life insurance. Make sure that you know the exact ending date of each type of insurance coverage. Take care of any vision or dental issues prior to the date on which your insurance expires. Also, consider replacing the insurance coverage if you feel that is important for you or your immediate family.

· Unemployment Insurance: Most full time employees who are laid off for reasons other than just cause are legally entitled to unemployment insurance. Each state has an office that is responsible for the administration of unemployment compensation. It is important that you contact that office either by phone, the internet or in person and that you understand exactly how to apply for unemployment benefits and the deadline for such application.

· Severance Package: Some employers provide their employees with severance packages. It is important that you review the terms of the package before you agree to it. However, it is also important to be aware of any deadlines associated with accepting the package so that you do not inadvertently let the benefits contained in the severance package lapse.

Remember, many of the things listed above have firm deadlines and there are a lot of details to take care of when you are laid off. If you do not take care of them within the required timeframes then you risk losing the benefit entirely. So it is important that you take care of the necessary business as soon as possible following your lay off.

The "For Good Cause" Defense to Employment Discrimination Claims

Mon, 26 Oct 2009 18:03:29 GMT

Employers may not fire employees for discriminatory reasons such as their age, sex, disability, religion, race, or national origin. However, sometimes employers are put in the difficult position of having a valid legal reason for terminating an employee even though the employee may claim that he or she was fired for discriminatory reasons.

The “For Good Cause” Defense to Employment Discrimination

If an employee alleges that he or she was fired for a discriminatory reason then the employer may present a defense to that claim. An employer is permitted to terminate an employee at will, also known as an employee without a written employment contract, for good cause or for a legitimate nondiscriminatory reason at any time. For example, an employer can terminate employees for misconduct or because business has slowed down and the employer no longer needs as many employees as it once did.

While an employer has the right to terminate employees for good cause or for a legitimate nondiscriminatory reason, the employer must make its decision solely for nondiscriminatory reasons. The Civil Rights Act of 1991 makes it an unlawful employment practice to terminate an employee if it can be shown that there was a discriminatory motive involved in the employer’s decision to terminate an employee. An employer must be able to prove that it would have made the same decision to terminate the employee absent a discriminatory motive. If an employer is successful in proving this element of his defense then the employee will not be entitled to damages.

Best Practices Make “For Good Cause” Defenses Successful

It is important for an employer to remember that it must have terminated an employee absent a discriminatory motive and it must be able to prove the absence of a discriminatory motive in court. While proving the absence of discrimination is not always easy, there are some important pieces of evidence that an employer can provide. For example, an employer should keep detailed employee record files that include all formal and informal employee reviews, warnings about behavior or work quality that were provided to the employee and, guidance or training that was provided to the employee. The employer may present evidence that all employees who act as the employee acted are fired, regardless of employees’ sex, age, disability, religion, race or other protected status. Similarly, if an employer is making layoffs for economic reasons then the employer should follow a logical method for making those layoffs. For example, the common “last hired, first fired” rule.

Employment Lawyers are Important in Employment Defense Cases

For the reasons discussed above, record keeping is an important part of employment discrimination cases. An employment law attorney can help an employer learn how to keep employee records in a way that accurately documents the employee’s work history and that can be used as reliable evidence if a future employment discrimination lawsuit should arise. Once an employment discrimination lawsuit is filed against an employer, an employment discrimination lawyer can help argue the “for good cause” defense to the court. Therefore, it is important for employers to have experienced employment lawyers who can protect their interests.

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