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Employment Law For Employees

Over the past twenty-five years, employment law has become a complicated, legal field full of federal and state laws. In South Carolina, employment law is a recognized specialty by the Supreme Court of South Carolina. In 2013, South Carolina had eleven thousand six hundred eighty (11,680) active, licensed attorneys. Of these, only sixty-seven (67) are recognized by the Supreme Court of South Carolina as a Certified Specialist in Employment & Labor Law, and only ten (10) are in the Charleston area.

Since 2001, attorney Bruce Miller has been a Certified Specialist in Employment & Labor Law. This is what he does—this is his specialty. If you need an attorney in the complex area of employment law, why trust your future to anyone other than one who is a Certified Specialist in Employment & Labor Law?

Discrimination - Age

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

Age discrimination is prohibited by two separate federal laws: the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act (Title VII). The ADEA makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age."

If you are age forty (40) or older, you may have been denied a promotion or lost a job to a younger candidate. You may have been laid off and replaced by an employee with less experience, but who was much younger. Age discrimination is a reality for many individuals seeking employment and job security at a later stage in life. People under forty (40) years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire someone because he or she is thirty-nine, and therefore "too young," it is legal. If it because he or she is forty and "too old," it is illegal. Age discrimination has some special aspects that make it different from other types of employment discrimination.

Age discrimination is a subtle form of discrimination and is often difficult to prove. As an experienced employment law attorney, Bruce Miller can analyze and assess your age discrimination claim. If you believe that your job was taken away as a result of your age, he will initiate a full investigation into your case. If an employer cannot demonstrate a reason other than your age to deny you a job, promotion, or opportunity, you may be entitled to significant compensation for age discrimination. We will contact witnesses, assess your skills and job history, and advise whether or not you should file an age discrimination claim. At every stage, we will provide you with honest and reliable feedback and explore all of your options and alternatives. If you believe that you have faced age discrimination in your job, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Discrimination - Disability

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

Disability discrimination is prohibited by two separate federal laws: the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act (Title VII). The ADA makes it illegal for an employer to discriminate against a qualified individual with a disability in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, conditions, and privileges of employment, because of the individual’s disability.

For the employee to be eligible to make a claim of disability discrimination under the ADA, he must be a "qualified individual with a disability." This means that he must be able to do the job. For instance, a person with no hands would not be qualified to be a typist. If the employer didn’t give him the job, it would not be discrimination. The person simply is not qualified.

"With a disability" means that the worker is actually disabled. For an injury, disease, or their ailment to be a "disability" under the law, it must "substantially limit one or more major life activities." A mere annoyance is not enough. The disability must actually interfere with a person’s life.

In determining whether or not a person actually has a disability, the courts pay close attention to whether or not the ailment affects the person’s job and ability to earn a living. If the disability does not affect most areas of life, but it affects the person’s employment, it is more likely to be considered a disability.

It is also unlawful to discriminate against a person who is regarded or perceived to have a disability. If the employee is not disabled, but the employer believes he is, and discriminated against him, that is illegal.

In this circumstance, it is unnecessary to determine if the employee is a "qualified individual" with a disability. The court may, however, consider whether or not the person would have been a qualified individual if he actually had the disability that the employer perceived him to have.

Reasonable accommodation is the idea that even if a person is disabled and even if that disability may make it seem like he or she cannot do a job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still perform the "essential functions of the job."

For instance, a person in a wheelchair wants a job in an office that is on the second floor, but there are no elevators in the building. To accommodate the worker, the employer could install an elevator. Is that a "reasonable accommodation?" Is it reasonable to expect the employer to spend that amount of money? Probably not, particularly if it is a small business. There may, however, be other possibilities. Perhaps the potential employee’s job is really just talking on the telephone selling products. Maybe the job can be done from home, and there is no need to be in the office. Is it reasonable to ask the employer to let the person work at home? It may be.

Qualified individuals with a disability must ask for reasonable accommodations. Once they do, the employer has the duty to consider the requests. The employer may make counter-offers that the employer may see as more reasonable. If the employer and employee cannot agree, then the employee might want to consider bringing suit. To win, however, the judge or jury will have to find that the employee’s request was reasonable, and that the employer’s counter-offers were unreasonable.

While the government will usually allow employers and businesses to decide whom to hire and fire, there are certain federal laws that protect disabled persons and other classes of people at risk of discrimination in the work force. Disabled or injured workers often face discrimination, even if their impairment does not affect their ability to perform work duties. If you believe that you have faced age discrimination in your job, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Discrimination - National Origin

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

National Origin Discrimination is prohibited by Title VII of the Civil Rights Act of 1964. This is different than race discrimination. It happens when an employer discriminates because from where someone was born. Obviously, race discrimination and national origin discrimination can often go hand-in-hand.

The Immigration Reform and Control Act, (IRCA) prohibits employment discrimination because of national origin against U.S. citizens, U.S. nationals, and authorized aliens.

If you believe that you have faced national origin discrimination in your job, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Discrimination - Pregnancy

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

Pregnancy discrimination is prohibited by the federal law Title VII of the Civil Rights Act (Title VII). It is illegal for your employer to treat you differently because you are pregnant. Women have the difficult task of trying to balance their careers and their child-rearing responsibilities. Unfortunately, pregnancy discrimination is a reality in the workforce. Many women lose certain opportunities - including promotions or raises - as a result of a pregnancy. Additionally it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant. We help clients address individual cases of discrimination to determine and pursue legal recourse in the event of illegal employer action.

Pregnancy discrimination can take many forms. The victim may have been denied a promotion, for which she was most qualified. She may feel that she was treated differently or that she was not provided the same opportunities as other candidates in her workplace. She may have been wrongfully terminated from her employment since her employer discovered her pregnancy.

Can she be fired if she is out on pregnancy leave? While there are some instances where an employee can be fired when she is out on maternity leave, such actions are often unlawful. Attorney Bruce Miller will examine her employment history and the history of other employees including raises, promotions, and disciplinary actions. If she were treated differently from other employees or if her employer treated her differently since discovering her pregnancy and she lost a promotional opportunity, or were transferred, penalized or even fired, she may have a case for pregnancy discrimination.

Employers, generally, have a number of responsibilities to employees who become pregnant. For instance, if a woman becomes pregnant, and with the advice of her doctor asks for a position that is less strenuous or hazardous, the employer must transfer her to another position if it has one, or can make one without being "unduly burdened." Basically, if it is not too much trouble for the employer to accommodate the woman’s needs, he should do it.

If she is pregnant and believes that she may have suffered job discrimination as a result of her pregnancy, she does have rights. Attorney Bruce Miller offers dedicated and aggressive advocacy to the victims of pregnancy discrimination. If she believes that she has faced discrimination in her job because of a pregnancy, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert her rights in or out of court.

Discrimination - Race

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

Race discrimination is prohibited by two separate federal laws: the Civil Rights Act of 1866 and Title VII of the Civil Rights Act (Title VII). Any individual who suffers racial discrimination in the private or public sector is able to bring legal action against their employer. It is illegal under both federal and state Law to discriminate in the "terms or conditions of employment" on the basis of a person’s race or color. "Terms or conditions of employment" mean just about anything relating to someone’s job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment.

Race is generally defined as a person’s ancestry or ethnic characteristics. Everyone is some race or color. This means that it is illegal to discriminate against anyone, if the basis is their race or color.

Race discrimination in the workplace based on association with people of a particular race is also prohibited. For instance, if an employer fired a white employee because she had black friends, or was dating a black man, the white woman would have a discrimination suit, whether or not the employer is prejudiced against whites.

It is also illegal to discriminate on the basis of "color." In one case, an employer hired a "light-complexioned" black applicant with "Caucasian features" over another black applicant who had a "dark complexion" and "Negroid features." This was also against the law, even though in a strict sense one race wasn’t being preferred over another.

If you have experienced any of the following, please contact us:

Attorney Bruce Miller is committed to asserting the rights of individuals who are victims of racial harassment or discrimination in the workplace. If you believe that racial discrimination in the workplace has resulted in illegal treatment or damage to your livelihood, our legal team is committed to seeking results that meet your goals.

Race discrimination cases are highly sensitive and require skills, experience, and resources to succeed in court. Attorney Bruce Miller has experience handling cases under the Civil Rights Act, Title VII, and similar state laws that protect the civil rights of minorities in the workplace. We handle cases involving hiring, termination, promotion, compensation, training, and other conditions or privileges of employment. Attorney Bruce Miller will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that you have faced discrimination in your job because of your race, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Discrimination - Religion

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

It is illegal under both federal and state law to discriminate in the "terms or conditions of employment" on the basis of a person’s religious beliefs or practices. "Terms or conditions of employment" pertain to many aspects of a person’s job: interviewing, hiring, your position, pay, title, hours, vacation, and reasonable accommodations to observe Sabbath or other religious days, and other terms of employment.

According to federal law, employers must make reasonable accommodations of a person’s religious beliefs or practices in the workplace, unless doing so would create an undue hardship on the employer. Undue hardship is found when the accommodation is economically hard, or when accommodating the religious beliefs of one employee are unfair to other employees who do not have the same beliefs. Most of the time, however, accommodations do not create an undue hardship. Further, it is inappropriate and many times illegal for your employer to ask about the specifics of your religious beliefs, your availability for future holidays based on religion, or to require a dress code that violates a person’s religious beliefs or practices.

Sometimes religious discrimination is compounded by national origin discrimination and racial discrimination. Many cultures have a national religion or a practice that is not Judeo-Christian based or reflected in mainstream American culture.

If you have received harassment or discrimination based on your religious beliefs, practices, lack of religious beliefs or practices, or your dress (such as wearing a yarmulke at work) you may be the victim of religious discrimination. It is illegal for you to be treated differently than other employees who do not share your religion or beliefs. It is important to contact an experienced discrimination attorney to discuss your situation and how the law may be able to help. If you believe that you have faced discrimination in your job because of your religion or your religious beliefs, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Discrimination - Sex

Although the victim of employment discrimination may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful discrimination has occurred. Employees can be treated unfairly based on a number of characteristics. Employers can discriminate on age, disability, national origin, pregnancy, race, religion, or sex. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

It is illegal for your employer to treat you differently because of your sex or gender. Unfortunately, sex discrimination is a reality in the workforce. We help clients address individual cases of discrimination to determine and pursue legal recourse in the event of illegal employer action. If you believe that you may have suffered job discrimination as a result of your sex, you do have rights. Attorney Bruce Miller offers dedicated and aggressive advocacy to the victims of sex discrimination.

Sex discrimination can take many forms. You may have been denied a promotion, for which you were most qualified – this may be the "Glass Ceiling" that your employer has created. You may feel that you are treated differently or that you are not provided the same opportunities as other candidates in your workplace. You may have been wrongfully terminated from your employment based on your sex.

Any individual who suffers sex discrimination in the private or public sector is able to bring legal action against their employer. It is illegal under both federal and state law to discriminate in the "terms or conditions of employment" on the basis of a person’s sex. "Terms or conditions of employment" mean just about anything relating to someone’s job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment.

If you have experienced any of the following, please contact us:

Attorney Bruce Miller is committed to asserting the rights of individuals who are victims of sexual harassment or discrimination in the workplace throughout South Carolina. If you believe that sexual discrimination in the workplace has resulted in illegal treatment or damage to your livelihood, he is committed to seeking justice for you.

It is also illegal to make employment decisions based on stereotypes regarding gender. For example, in one case an employer was held to have violated the federal Title VII anti-discrimination law when it delayed a female employee’s promotion based in part on evaluation comments describing her as "macho" and advising her to "take a course in charm school." This woman was treated differently because of her sex or gender, and because she seemed too "male."

Frequently employers expect women to have certain duties, such as caring for children. In one case, an employer did not hire women with preschool-age children, while at the same time it did hire men with preschool-age children. Even though most of the people it hired were women, there was still discrimination. The employer didn’t think women with young children should be working outside the home. The "individual" is entitled to this belief; however, the employer could not allow his belief to affect his employment decisions. When his beliefs did influence his hiring decisions, he broke the law.

Sex discrimination cases are highly sensitive and require skills, experience, and resources to succeed in court. We handle cases involving hiring, termination, promotion, compensation, training, and other conditions or privileges of employment. Attorney Bruce Miller will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that you have faced discrimination in your job because of your sex, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Employment Agreements

Employees in South Carolina are generally "at-will." This means that the employer, like the employee, can end the relationship at any time for good reason, bad reason, or no reason, but not for an illegal reason, such as discrimination.

Written employment contracts are very rare. Usually, only highly-paid executives have them; however, some other employees have them. In most employment contracts in South Carolina, there is an implied covenant of good faith and fair dealing. If the company violates its contract, you may sue for "breach of contract" and allege a violation of the "covenant of good faith and fair dealing."

Written contracts may have an unlimited number of "terms" or "conditions," one of which may be "good cause." The employer said there was good cause to terminate, and the employee thinks there was no good cause. In this circumstance, the argument will probably come down to looking at the contract language that defines "good cause." If the facts support "good cause," then the termination was probably legal under the contract.

In South Carolina, there are only certain things the employee can recover when suing for breach of contract. The employee can sue for his lost wages and benefits. He can sue for the wages he would have received in the future, minus what he’s earned at a new job, and minus the wages he should earn, assuming he gets a job in a reasonable time. The employee cannot sue for emotional distress under breach of contract.

Attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, also advises many professional and executives on contracts they are being offered. He will review the contract thoroughly and advise the client on the various pitfalls hidden throughout the contract.

Equal Pay for Women

Under the Equal Pay Act, an amendment to the Fair Labor Standards Act, an employer may not discriminate in wages on the basis of sex. When male and female employees perform jobs that require substantially equal skill, effort, and responsibility, and are performed in similar working conditions, an employer must pay his employees equally. An employer, however, may be able to demonstrate that these payment decisions are based on a reasonable factor other than sex, such as merit, a seniority system, or a quantity system. When an employee can establish a violation of the Equal Pay Act, an employer must correct the differential by increasing the wages of the lower paid sex, not by decreasing the wages of the higher paid sex. A successful employee is entitled to receive an award of back pay as well as an amount equal to the back pay, as liquidated damages. The court may, in its discretion, award pre-judgment interest for the loss of use of the employee’s money. Lastly, attorneys’ fees and costs are also recoverable.

The Lilly Ledbetter Fair Pay Restoration Act holds that discrimination in compensation occurs each time wages, benefits, or other compensation is paid resulting from a discriminatory act or decision. Each gender-unequal paycheck issued constitutes a new violation. We handle cases involving violations of the Equal Pay Act. Attorney Bruce Miller will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that you are the victim of unequal wages because of your sex, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Family and Medical Leave Act (FMLA)

If your employer has fifty (50) or more employees, within a 75-mile radius, you may be eligible for up to twelve (12) work-weeks of unpaid leave each year for any protected family or medical reason listed under the federal Family and Medical Leave Act (FMLA), as long as you meet certain requirements. Some states have their own mini-FMLA laws that provide more extensive protections. This leave is job-protected, meaning that you cannot be demoted or fired for exercising your rights under the FMLA. If you believe your FMLA rights have been violated, or if you believe your employer is in violation of the FMLA, take action now to protect your interests by speaking with an experienced employment law attorney.

You must meet certain minimum requirements to be eligible for leave under the FMLA. These requirements include working for your employer for at least one year and providing at least 1,250 hours of service. If you work for a covered employer, you are entitled to twelve (12) work-weeks of unpaid leave in the event of the birth or adoption of a child, or to care for yourself or a loved one in the event of a serious health condition. You must provide sufficient notice to your employer of your intent to exercise your rights under the FMLA.

The FMLA states very clearly that any employee who wishes to exercise his or her rights to leave under the Act can do so without retaliation from their employer. This means your employer cannot do any of the following:

Attorney Bruce Miller handles cases involving hiring, termination, promotion, compensation, training, and other conditions or privileges of employment. He will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that your FMLA rights have been violated, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Hostile Work Environment

The term "hostile workplace environment" or hostile environment" has become widely used by people to describe workplaces that are simply mean and rude. The problem is that an employer, through a manager, supervisor, or co-employee, being mean or rude is not necessarily illegal. For it to be illegal, the hostility must be because of one of the protected categories of Title VII: age; disability; national origin, pregnancy, race, religion or sex.

The courts have held that if you are harassed in the work place, based on one of the above factors, you may have the right to sue your employer. Discrimination and harassment generally go hand in hand here. Where there is discrimination in the workplace, there is also usually harassment in the workplace.

There are also two other factors that must be proven. First, the discrimination or harassment in the workplace must be severe and pervasive. An idle comment, even if offensive, is not the basis for a lawsuit. Ongoing use of the "N" word could be severe and pervasive. Having derogatory words and racial or ethnic slurs written on the bathroom walls could be severe and pervasive. One has to look at it on a case-by-case basis.

Next the conduct must be carried on by management or management must know, or should have known, about it and have had an opportunity to stop it and in fact, did not. In other words, management condones the behavior.

If a fellow worker is the one doing the discrimination or harassment, you should follow the company policy and report the conduct to the person or position stated in the policy. Report it in writing (always keeping a copy) to have proof of your report, and be sure to be specific about the exact nature of the discrimination or harassment. Saying things like "Joe is bothering me or harassing me" is insufficient.

Attorney Bruce Miller handles cases involving illegal hostile environments. He will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that you are the victim of an illegal hostile environment, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Restrictive Covenants

Restrictive covenants, or agreements, are documents employers have employees sign to protect the employer. These covenants are controlled by state law, generally South Carolina law for South Carolina employers, but sometimes it references the law of another state. Many times these covenants are lumped together and called a covenant not to compete; however, there are generally four different types of covenants:

In South Carolina, under the "reasonableness test," a covenant not to compete will be enforced if it can be shown that the covenant is:

  1. Necessary for the protection of the legitimate interests of the employer
  2. Reasonably limited with respect to time and place
  3. Not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood
  4. Reasonable from the standpoint of sound public policy, and
  5. Supported by valuable consideration.

Many employment contracts serve the interests of the employer, but fail to provide protection to employees. Employment contracts are usually drafted by the employer to safeguard trade secrets and protect the business from any damage that could be caused by a former employee after employment ends. Non-compete and non-disclosure agreements prevent employees from performing certain work or revealing methods or skills for a competitor after employment has ended. Employees usually sign noncompete agreements or nondisclosure agreements at the beginning of employment. If you are an employee facing a noncompete or nondisclosure contract dispute, you need the guidance and advocacy of an experienced employee rights attorney.
While South Carolina courts will protect an employer against unfair competition and misappropriation of trade secrets, they generally will not enforce a restrictive covenant preventing an employee’s right to work. A noncompete agreement may prevent an employee from working for a specific competitor or in a certain capacity after employment ends. If you are an employee in a high-tech position or with a specific set of skills, this may limit your job opportunities and have a devastating effect on your ability to work. The employer does not want the employee to leave or go to work for a competitor and take the customers, clients or proprietary information to a competitor. Balanced against the employer’s desire for protection, the employee needs to get another job after leaving that employer. The easiest and most remunerative job would be in the same field, with the same job title, doing the same work. Therefore, by necessity the employee needs to work for a competitor in order to utilize his knowledge, experience and skills. Attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, is skilled in challenging non-compete agreements that unfairly limit an employee’s ability to work. He can assist you in asserting your rights in a dispute over any type of restrictive covenant.

Retaliation

Retaliation covers a broad range of actions taken by employers against employees who report wrongdoing, including sexual harassment, illegal activity, improper safety procedures or equipment, discrimination, or a hostile work environment. Retaliation may take many forms of harassment at work, including termination of employment. Retaliation can be as subtle as the way you are treated by your employer, or lead to full-blown employee harassment or termination. If you believe that you have suffered retaliation for action you have taken against your employer, attorney Bruce Miller will begin an immediate investigation to protect your rights.

If you are currently employed and seeking to end your employment because of retaliation, attorney Bruce Miller can counsel you on the best methods to preserve evidence for your claim and other future legal action. It is imperative that you take proper legal steps to preserve your rights and claims.

Retaliation by an employer against an employee for protected activity is prohibited. Attorney Bruce Miller can assist you if you have suffered any of the following adverse actions:

If you are a victim of retaliatory discharge, attorney Bruce Miller will aggressively assert your rights against your employer. If you believe that you are the victim of illegal retaliation, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Separation Agreements

Employees who are terminated often ask the question, "Will I receive a severance package?" The answer to this question varies by employer. Even more, severance offers vary from employee to employee. When you received your severance agreement, you likely first looked to see what your employer is offering in the way of financial compensation. While this number is important, you also need to understand the other terms and conditions laid out by your employer. Your employer may include many non-economic terms in your severance agreement. These terms can refer to a variety of areas such as a noncompete clause that affects your ability to get another job in the future. There may also be a clause in the contract that requires you to waive certain rights, including the right to sue your employer on any grounds. If your employer has given you a Separation Agreement, more than likely it was written by the employment attorney for the employer to protect the employer. You need "your attorney" to review the Separation Agreement and advise you as to what changes should be made so you are not giving away your rights or restricting your future.

Separation Agreements generally contain a total release of all claims that you may have against your employer. If you sign this, you have given up all rights to sue your employer for anything that the employer may have done that is illegal. Separation Agreements may also include restrictive covenants (see section on Restrictive Covenants above) limiting your options on your future employment. It is very important that you understand what you are signing before you sign it.

We highly recommend that you bring your severance agreement to attorney Bruce Miller. He has decades of experience in reviewing and negotiating the terms of separation agreements. Whether you are looking to understand the complex concepts laid out in your agreement or hoping to obtain a better agreement, Attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, has the expertise necessary to identify all of your options and provide solutions. He will comprehensively review your agreement, discuss your goals, and prepare a response to your employer. If the terms are completely unacceptable, he will seek a better severance package through negotiations with your former employer either in or out of court.

Sexual Harassment

Although the victim of sexual harassment may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful harassment has occurred. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

Sexual harassment in the workplace can take many forms, ranging from sexually explicit language to requests for sexual favors by a boss or employer. Too often, sexual harassment in the workplace goes unrecognized or ignored because the victim fears negative treatment or retaliation.

Many victims want to trust that their case will be handled effectively and discreetly. Before taking legal action in your case, we take the time to understand your unique circumstances and personal objectives in your case. Whether you are interested in protecting your job or recovering financial compensation, we will handle your case in a manner tailored to accomplish those goals. You can trust that your case will be handled discreetly and that a high level of professionalism will be maintained throughout your case.

If you have suffered or are enduring any of the following forms of sexual harassment at work, please contact us as soon as possible:

You have the right to feel safe in your work environment. Often sexual harassment can lead to a hostile work environment if sexual requests are denied or challenged.

Sexual harassment can involve behavior by your employer, via a manager or supervisor, or another employee. If your employer has reason to know that you have been the victim of unwelcome sexual advances or inappropriate behavior from a fellow employee, they are required to take immediate action to protect you. Attorney Bruce Miller will counsel you on how to handle sexual harassment in the workplace and how to document any negative treatment you have suffered.

An important element of sexual harassment claims is how you handle the treatment. Attorney Bruce Miller can advise you in building proper evidence before proceeding in your case. We will work on a full investigation, contact witnesses, identify any patterns of harassment, and ensure that we have a proper foundation of evidence before taking legal action against your employer.

There are two types of sexual harassment in the workplace, "quid-pro-quo" and "hostile environment." The Hostile Environment will be explained in a separate section, although where there’s one, there’s often the other.

"Quid-pro-quo" is Latin for "this for that." It is a trade. When the trade is on the basis of sex, it is illegal. This is the when the employer makes sex a prerequisite to getting something in the workplace. For example: "Sleep with me and you’ll get the job." This is illegal. This type of sexual harassment in the workplace is the "casting couch" cliché. Quid-pro-quo can also include negatives. For example, "Sleep with me or you’re fired" is also illegal.

What about the person who accepts the offer of advancement in exchange for sex. Can she sue? She can certainly sue - she either deserved the promotion or didn’t deserve it; she shouldn’t have been put in the position of considering whether or not to sell her body to get it. The problem is the idea of "consent."

Sexual harassment in the workplace must be unwelcome. If she was happy with the trade-off, she has a difficult case. If two employees have a good time exchanging sexual jokes, it would not be sexual harassment in the workplace. If one employee kept telling another employee sexual jokes that the second employee found offensive, it may be sexual harassment in the workplace. If two employees dated and engaged in consensual sex, this would not be sexual harassment. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the work place to further the relationship, this may be sexual harassment in the workplace.

Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment in the workplace. Sexual harassment in the workplace can be between people of the same sex. Sexual harassment in the workplace can also be a woman harassing a man.

Anyone who is offended by a sexually harassing environment may theoretically sue; however, that employee’s offense must be unreasonable. An extremely sensitive person might not be able to maintain a claim, because her sensitive feelings of having been offended were unreasonable.

Victims of sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys’ fees. Attorney Bruce Miller has decades of expertise in handling sexual harassment cases. He will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you believe that you are the victim of sexual harassment, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Trade Secrets

Employers worry about former employees taking what they consider to be trade secrets, when often employees are simply taking knowledge that they have gained from their experience. A former employer may file an action against you seeking an injunction and money damages against you for allegedly stealing a company trade secret. The first issue is whether this alleged trade secret even rises to the level to meet the definition of a trade secret. What has the employer done to protect this trade secret? Did numerous employees have access to it?

Attorney Bruce Miller has years of expertise in handling trade secret cases. He will provide strategic and result-driven legal service throughout South Carolina to seek justice for you. If you are being charged or sued for stealing a trade secret, attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, can assert your rights in or out of court.

Wage & Hour / Overtime

Although the victim of illegal wages or improper overtime may know when it is occurring, it takes a skilled litigator to find and present objective evidence that unlawful payments have occurred. As a Certified Specialist in Employment & Labor Law, attorney Bruce Miller is an attorney with the expertise and experience to determine your goals, analyze the evidence, and obtain justice for you.

There probably is no other issue that is causing employers more headaches and costs than wage and hour. Because of the technical and antiquated law, many sophisticated employers still pay their employees illegally. The Fair Labor Standards Act (FLSA) is the federal law that requires minimum wage, overtime pay, and record keeping for covered employers. Written in post-depression 1938, the law sought to correct oppressive labor conditions that were facing many Americans at the time. The Wage and Hour Division of the United States Department of Labor (DOL) administers and enforces the FLSA.

The FLSA requires most employers to pay their employees at least the minimum wage, which is currently $7.25 per hour, and overtime wages (time and a half) for all hours worked over forty (40) hours in a work week, unless the employee qualifies for an exemption.

Many employers believe that if they pay an employee a "salary" as opposed to hourly wages, then they are exempt. This is an illegal mistake with many employees. An employee classified as a non-exempt employee under the FLSA is entitled to overtime compensation for all time worked over forty (40) hours in a workweek. In contrast, an employee classified as an exempt employee under the FLSA is not entitled to overtime compensation. There are five (5) main exemptions under the FLSA (in addition to other exemptions): executive, administrative, professional, outside sales, and computer. There are also other exceptions that are less frequently applicable. Each of the FLSA overtime exemptions has its own set of requirements that must be met for an employee to be classified as exempt. To be an exempt employee, the employee’s primary duty must involve exempt work. If an employee is misclassified as an exempt employee and is later found to be a non-exempt employee, an employee is entitled to back overtime compensation for a period of two years. If the misclassification is found to be willful, the FLSA awards back compensation for a period of three years. In addition, an employee is likely to receive liquidated damages, which is an additional amount equal to the back wages owed, unless the employer can make a showing of "good faith." The employee is also entitled to be awarded his attorneys’ fees for enforcing his FLSA rights.

Sometimes an employer tries to classify an individual as an independent contractor, simply by labeling the individual this in a document. Even if the individual agrees to this, if it is wrong, the individual may sue the employer for damages. The employer may be subject to immediate tax consequences, required to pay back wages and damages for violation of ERISA and/or the FLSA, required to enroll the worker in benefit plans, potentially be liable for back benefits, and attorneys’ fees.

In our experience, we have seen many employers who have misclassified individual workers. The federal wage laws relating to different classes of employees are numerous and dense. Employers often struggle to classify employees correctly, including nonexempt employees, exempt employees, and independent contractors. Each class brings with it certain rights relating to overtime pay, base pay, and other wage and hour concerns.

If an employer knows or should have known through reasonable diligence that an employee is performing work on the employer’s behalf, and the employee fails to (or is instructed not to) record that time, the employer will be required to compensate the employee for that time. This is true even if the extra work was otherwise unauthorized overtime. If an employee works overtime without pre-approval and elects not to record the time, the employer can still be liable for not paying overtime if the employer knew or should have known that the employee performed that off-the-clock work. The employee’s failure to get pre-approval for overtime work (if that is what the employer requires) is a disciplinary issue, but it is not a pay issue.

South Carolina has its own state Wage Payment Act. For areas not controlled by the FLSA, this Act sets out certain requirements for employers of more than five employees during the past twelve months. The act’s coverage is quite broad; it is not limited to hourly wage employees. "Wages" is defined as "all amounts at which labor rendered is re-compensable, whether the amount is fixed or ascertained on a time, task, peace, or commission basis, . . . and includes vacation, holiday, and sick leave payments which are due to an employee under any employer policy, or employment contract." The definition does exclude funds in pension plans or profit sharing plans.

Employers must notify each employee in writing at the time of hiring of the normal hours and wages, the time and place of payment, and any deductions that will be made from the wages. Any changes to these terms of employment must be made in writing to the employee a minimum of seven days before any change, except for a wage increase. When an employee leaves employment, regardless of the reason, the employer must pay all wages due to the employee within 48 hours, or the next regular payday, which may not exceed thirty (30) days.

If an employee claims that he is owed wages, the employer shall give written notice to the employee of the amount of wages he concedes to be due, if any, and shall pay that amount within the time set out by the act. The employee, or former employee, who brings an action for unpaid wages, can only recover for wages earned. There is no entitlement to an award of prospective wages. If the employer contests the claim and the court determines the employer had no good faith dispute, the court may triple the damages, and award the employee his attorneys’ fees. The South Carolina courts have also held that the act imposes individual liability on agents or officers of a corporation who knowingly permit the corporation to violate the act.

Between the FLSA and the South Carolina Wage Payment Act, employees are often paid illegally. If you have tried to speak with your employer about unpaid wages or overtime, but have received no response or have been told numerous times that the money is on its way, you may want to consider involving an attorney. Attorney Bruce Miller, a Certified Specialist in Employment & Labor Law, has the experience and expertise necessary to determine if your employer owes you wages. He will efficiently and effectively represent your rights to full pay. He will pursue any unpaid wages that extend back two, or possibly three years. If he is unable to work with your employer in negotiations, mediation or arbitration, he can file suit to obtain the wages or overtime you deserve.

Wrongful Termination

"Wrongful Termination" is a term that generally refers to an employee being fired when they should not have been. It is a widely over-used phrase. If the termination was improper, it probably is covered by a specific law or cause of action. Many terminations that employees think of as "wrongful" are not illegal.

In South Carolina and most other states, employment is "at will." This means that the employee or employer can end the employment relationship at any time for good reason, bad reason, or no reason, as long as it is not an illegal reason.

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