Employment Law is a complex area of the law and you should consult with an attorney if you have been wrongfully terminated or discriminated against in the workplace. In our last blog article, we discussed several areas of employment law that are common workplace violations which could lead to an employment lawsuit. This article will continue that discussion covering some principles of the federal Family and Medical Leave Act (FMLA), Independent Contractor issues, Wage and Hour Violations and Unemployment Compensation.
These are just a few areas of the law which may form the basis of legal action against an employer or former employer. Employee protections are provided for by a complicated structure of federal and state laws, and you should consult an attorney if you believe you were wrongfully terminated of suffered discrimination in the workplace based on these or other issues.
Family Medical and Leave Act (FMLA)
If you work for an employer which employs 50 or more employees and have worked for the company for at least one year and worked more than 1,250 hours the previous year, the federal Family Medical and Leave Act (FMLA) provides you the right to take up to 12 weeks of unpaid leave from work within a year, either consecutively or incrementally, for the following qualifying reasons:
- The birth of a child
- To provide time for bonding and care for a newborn or newly adopted child
- To recover from a serious health condition
- To provide care for an immediate family member (spouse, child or parent)
Furthermore, FMLA provides for leave of up to 26 weeks to address:
- Qualifying needs due to injury or death of a family member on active military service
FMLA provides that upon return to work, you will be reinstated to your previous position or an equivalent position with equal pay and benefits you have earned or are entitled to, prior to the leave. An employer may not retaliate against an employee who was granted and took leave under FMLA by giving them less desirable work assignments, reducing pay, demoting, disciplining, harassing or terminating them. If an employer takes such actions, you may have the basis for a lawsuit against the employer.
State laws may provide similar and other rights to employees. You should discuss your situation with a lawyer if you feel your employer has violated your rights under FMLA or similar state laws.
Independent Contractor v Employee
Whether you are classified as an employee or an independent contractor has many ramifications. Employers are required to withhold federal Income, Social Security and Medicare taxes, and pay a portion of an employee’s Social Security taxes. Employers are also required to cover employees under Worker’s Compensation and Unemployment Compensation. Independent Contractors are not covered under Worker’s Compensation nor are they eligible for Unemployment Compensation. Additionally, Independent Contractors do not have the protections of equal employment, discrimination, harassment, minimum wage or overtime laws, nor are they eligible for employee benefit plans.
Misclassification between being an Independent Contractor or an Employee can have many legal ramifications. Employers may misclassify those who work for them in order to reduce record keeping or to save money to pay taxes or provide benefits.
Whether you are an employee, or a contactor depends on many factors provided by federal and state laws. These factors have to do with how you file your income taxes; the exclusivity of services to the employer or whether you can provide services to many clients; and how much control the employer has over when, where, and how you work.
If you believe you have been misclassified between being an employee or a contractor, or if you are a contractor and believe your client is violating the terms of your employment contract, you may have a potential case against the employer. You should discuss the situation with an attorney to determine your options.
Wage and Hour
Whether you are eligible for overtime depends on many factors. If you are classified as an “exempt” employee you are not eligible for protections provided by the Fair Labor Standards Act (FLSA), which provides that employees be paid “time and a half” or 1.5 normal pay for working either more than 40 hours in a week or more than 8 hours per day.
Non-exempt employees are usually paid by the number of hours worked rather than by a monthly salary. Employees who are non-exempt from the FLSA, may have a cause of action against an employer if:
- The employer fails to pay all hours worked, including time spent preparing to work, or cleaning up after a shift.
- The employer does not pay for searches, or dressing in protective gear prior to entry to the workplace
- The employer does not pay to drive to attend required meetings or training
- The employer fails to pay minimum wage
- Improperly allocating tips for servers or other eligible employees
- The employer pays straight time when daily or weekly time limits are exceeded
- The employer misclassifies employees as “exempt” to avoid paying overtime
This list does not include all possible violations of Wage and Hour violations. You should discuss your situation with a lawyer to determine if you have a possible case against an employer for Wage and Hour violations.
If you are involuntarily terminated from a job without “cause” due to a workforce reduction or other unspecified reason, you may be eligible for Unemployment Compensation. Even if you were terminated for misconduct, some employers will make up causes for termination in order avoid paying Unemployment Compensation benefits. Once you are terminated and apply for Unemployment Compensation your former employer may challenge your eligibility to receive benefits in an attempt to block paying the employer portion of the benefits. You have the right to appeal such challenges. You should talk to a lawyer to assist with employers who attempt to block your benefits, or to assist with an application that has been delayed due to an error in processing or some other bureaucratic delay.
The Richard Harris Law Firm sues employers who violate Employment Laws
State and Federal employment laws are designed to protect employee’s rights in the workplace. When employers violate the protected rights of employees, civil penalties may be obtained through a lawsuit. Employment law is a complex area of the law, however an attorney who is experienced in workplace law violations can determine if your situation violates either state or federal employment law. If you have been the victim of an unfair or adverse workplace action and feel that your rights may have been violated, call our office today to discuss your case at (702) 444-4444.