Employment Law For Employers
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 four hundred seventy-two (11,472) 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 company’s future to anyone other than one who is a Certified Specialist in Employment Law?
With the steady rise in the number of discrimination, harassment, and retaliation charges filed each year, employers must be more vigilant and pro-active than ever when it comes to their employment decisions. The Equal Employment Opportunity Commission (EEOC) continues to receive an increasing number of charges every year. According to the EEOC, there were 93,727 charges filed against employers in fiscal year 2013. Retaliation by employers continued to be the leading charge. The financial impact is significant – a record $372.1 million was obtained by the EEOC from employers through administrative enforcement and mediation. This figure does not include the amount awarded to private plaintiffs and the costs of defending such claims.
Attorney Bruce Miller has extensive experience working with all types of discrimination cases, including sex, race, pregnancy, religion, national origin, age, and disability, along with issues involving equal pay, harassment, and retaliation. He stays on the forefront of new and innovative defenses in each of the key-protected categories. Drawing upon his thirty years of experience, attorney Bruce Miller provides strategic advice on unique issues that arise in administrative cases, including responses to individual charges of discrimination, conciliation, and formulating defenses to systemic investigations. His in-depth experience in civil cases brought by the EEOC enables him to develop effective approaches to defending against any EEOC litigation, whether it involves claims brought on behalf of individual claimants or class wide allegations of a pattern and practice of discrimination.
Nearly all private, state, and federal employees are covered by a number of EEO laws, including:
- Title VII of the Civil Rights Act: Prohibits discrimination on the basis of sex, race, national origin, religion, age, disability, or pregnancy
- Age Discrimination in Employment Act (ADEA): Prohibits discrimination against individuals forty (40) years of age or greater
- Americans with Disabilities Act (ADA): Prohibits discrimination based on disability
- Family and Medical Leave Act (FMLA): Prohibits discriminating against an employee for taking job-protected leave for family or medical reasons
- Civil Rights Act of 1866: Prohibits discrimination based on race
There are two types of discrimination: "disparate treatment" and "disparate impact." Disparate treatment is straightforward discrimination. Simply put, it is treating a person differently because of a protected class, like sex or race. Disparate treatment claims constitute the overwhelming majority of Title VII cases. As the United States Supreme Court has explained, disparate treatment is the most easily understood type of discrimination. Employees can claim that their employer has treated them less favorably than others because of their sex, race, religion, national origin, age, pregnancy, or disability. A disparate treatment claim may be shown through direct or circumstantial evidence of discrimination.
Disparate Impact discrimination is more complicated. Disparate Impact is when an employee claims that an employer’s company policy, though not discriminating on its face, nonetheless had a result of discrimination. The policy may not have been designed to discriminate; however, that was the unfortunate result.
One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; they were greater than what was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women; however, the policy resulted in a disparate impact upon women. Due to the fact that the policy was not sufficiently job-related (too much strength was required) there was discrimination.
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."
Employees may claim that their employer denied them a promotion, fired them and hired younger workers, or that they were laid off and replaced by much younger employees with less experience. Claims of age discrimination are a reality for many employers with older employees working for them. Age discrimination is a subtle form of discrimination and is often difficult to prove and makes it different from other types of employment discrimination.
Disability Discrimination is covered by Title VII and also the Americans with Disabilities Act (ADA). Under these laws, an employee can claim that her employer discriminated against her due to a disability during hiring; advancement; discharge; compensation; job training; or other terms, conditions, and privileges of employment, because of her disability.
For the employee to be eligible to make a claim of disability discrimination under the ADA, she must be a "qualified individual with a disability." This means that she 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 her the job, it wouldn’t be discrimination. It’s just that the person simply isn’t 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. So, even if the disability doesn’t affect most areas of life, if it affects the person’s employment, it is more likely to be considered a disability.
Employees can also make claims asserting that the employer discriminated against her because the employer perceived her to have a disability. If the employee can show that even though she is not disabled, but the employer believed she was, and discriminated against her, then the employer’s action 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 she actually had the disability that the employer perceived her to have.
Reasonable Accommodation is the idea that even if a person is disabled and even if that disability may make it seem like 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, if a person in a wheelchair wants a job in an office that is on the second floor of the building, which has no elevator. 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 kind of money? Probably not, particularly if it is a small business; however, there might be other possibilities. Perhaps the potential employee’s job is really just talking on the telephone. Maybe the job can be done from home, and there is no need to even be in the office. Is it reasonable to ask the employer to let the person work at home? It may be. The issue of reasonable accommodation is very factually and should be examined on a case-by-case basis.
Employees must ask for reasonable accommodations. Once they do, the employer has the right to consider the requests, and make counter-offers that the employer might see as more reasonable. If the employer and employee can’t agree, then the employee may bring suit. To win, however, the judge or jury will have to find that the employee’s request was reasonable, or that the employer’s counter-offers were unreasonable.
National Origin Discrimination is different than race discrimination. Here, an employee will claim that her employer discriminated against her because of where she 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.
- A "U.S. citizens only" policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.
- An employer may not discriminate because of citizenship status against U.S. citizens, U.S. Nationals and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylees.
- An employment application form may not ask an individual about his or her citizenship status. Rather, the form may only ask whether or not an individual is legally authorized to work in the United States.
- Generally, an employer may not discriminate against an individual because of an accent. In Fragrante v. City of Honolulu, the court held that an employer may take adverse employment action on the basis of an individual’s accent only where that accent would materially interfere with job performance.
- Title VII of the Civil Rights Act of 1964 bans national origin discrimination against any individual.
Pregnancy Discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions. Even discrimination based on the "potential" for pregnancy is illegal. For example, in one case a manufacturing company would not allow women to work certain jobs because if they were pregnant there could be harm to their fetus. This was illegal discrimination. Additionally it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.
Employers have a number of responsibilities to employees who become pregnant. For instance, if a woman becomes pregnant and 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." Generally, if it is not too much trouble for the employer to accommodate the woman’s needs, the employer should do it.
A "reasonable period of time" is the time period when the woman is "disabled" because of her pregnancy, childbirth, or related medical conditions. "Disabled" in this context simply means she cannot work. During a pregnancy leave, a woman may also use any vacation time she has accrued. Employers can require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will start and how long it is expected to last.
Race Discrimination still occurs today. The civil rights movement resulted in federal laws and penalties that protect the rights of minorities in the workplace. Any individual who suffers racial discrimination in the private or public sector is able to bring legal action against their employer. 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 cases are highly sensitive and require skills, experience, and resources to succeed in court.
It is illegal under both federal and state law for an employer 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.
Employment 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 an action for discrimination, regardless of whether 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.
Employees can claim race discrimination in a variety of different ways:
- Denied a position based on race;
- Victim of ethnic slurs or derogatory racial comments;
- Denied a promotion or opportunity because of race;
- Racial tension or prejudicial treatment created a hostile work environment;
- Subjected to different treatment than other employees, including harsher disciplinary actions;
- Denied promotions, training, or other employment benefits;
- Suffered retaliation for taking action against a discriminatory employer; and
- Suffered wrongful termination motivated by racial discrimination.
Religious Discrimination is 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, 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, employers may not ask about the specifics of a person’s religious beliefs, availability for future holidays based on religion, or require a dress code that violates a person’s religious beliefs or practices.
Sometimes religious discrimination claims can be compounded by national origin discrimination and racial discrimination claims.
Sex Discrimination cases are highly sensitive and require skills, experience, and resources to succeed in resolution or in court. It is illegal under both federal and state law for an employer 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: 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.
Employees can claim sex discrimination in a variety of different ways:
- Denied a position based on sex;
- Victim of sexual slurs or derogatory sexual comments;
- Denied a promotion or opportunity because of sex;
- Sexual tension or prejudicial treatment based on sex created a hostile work environment;
- Subjected to different treatment than other employees, including harsher disciplinary actions based on sex;
- Denied promotions, training, or other employment benefits based on sex;
- Suffered retaliation for taking action against a discriminatory employer; and
- Suffered wrongful termination motivated by sexual discrimination.
It is also illegal to make employment decisions based on stereotypes regarding sex or gender. For example, in one case an employer was held to have violated 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 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 did not think women with young children should be working outside the home.
Suppose your company has two hundred employees who are comprised of fifty percent female, ten percent African American, twenty percent Latino, etc. If an employee has claimed glass ceiling discrimination, a court may look at where the company’s employees are in the corporate pyramid. At the top of the corporate pyramid is the CEO or President. As one goes lower on the pyramid one finds the Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Mangers, Directors, Supervisors, and eventually one gets to the large number of employees who do the day-to-day work, at the bottom of the pyramid. If a horizontal line is drawn through the pyramid at the manager’s level, approximately two-thirds up the pyramid. Above that line are the managers and executives of the company. When a court looks at that imaginary line, and finds that 100 percent of the people from managerial positions on up to the CEO / President are white, Angle-Saxon males, that imaginary line is the glass ceiling, below which is found the group of females, the African Americans, the Latinos, etc. and above which, it appears, the females, African Americans, Latinos, etc., cannot rise. That imaginary line may apply to all or any one of a protected group. These types of cases are primarily proven by statistics. If all women cannot rise above the position of supervisor, then all women are being discriminated against in promotion and hiring. Thus, any glass ceiling case is a potential class action case.
Having strong, clear, and detailed employee handbooks is the trademark of any first-class organization. Employee Handbooks, when written properly, create a clear set of guidelines for all employees to follow. Moreover, given the state of the law, it is vitally important that your organization’s handbooks and policies comply with South Carolina law-especially having the statutorily-mandated disclaimer. Otherwise, your organization could find itself in the unenviable position of having unknowingly created an employment contract or other promises that were not intended.
Attorney Bruce Miller is frequently engaged by employers to assist in drafting employee handbooks, personnel policies, and related guidelines. In South Carolina and virtually every other state, employee handbooks and policies can provide tremendous benefits to employers in protecting against litigation over employment claims, creating and setting forth employer expectations, and establishing rules that help businesses function more efficiently and profitably. But creating a viable tool that will assist your company reach its business objectives requires thought, precision, and tailoring unique to your business and industry, especially when interpreted under South Carolina law. Whether it is a drug testing provision, internet policy, or provision against texting while driving a company vehicle, we can draft employee handbook provisions, and related employment policies important to your business.
Employees in South Carolina are generally "at-will." This means either the employee or the employer can end the relationship at any time for good reason, bad reason, or no reason, but not for an illegal reason, such as discrimination. For discussions of illegal discrimination, see the sections under Discrimination above.
To draft an employment agreement properly, you need an attorney who has been in court fighting battles over the specific language of employment agreements. One who knows the pitfalls of improper or over-reaching language. Attorney Bruce Miller has this experience and has prepared many employment agreements of various types. He will work with you to customize one of his many agreements to fit the specific needs of your company
Often employers have employees that are in contact with customers or clients or the employee deals with patent or copyright information, usually referred to as proprietary information. As an employer, you do not want the employee to leave or go to work for a competitor and take the customers, clients or proprietary information to a competitor. In these instances, it is important that employers require an employee to sign an employment agreement containing a restrictive covenant. These should be obtained from the employee at the start of employment. For a detailed discussion of Restrictive Covenants, see below.
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 and, as liquidated damages, an amount equal to the back pay, unless the employer can prove good faith. 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.
Family and Medical Leave Act (FMLA)
If your company employs fifty (50) or more employees within a 75-mile radius, those employees 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 they meet certain requirements. One of these requirements is that the employee must work for your company for at least one year and provide at least 1,250 hours of service. Some states have their own mini-FMLA laws that provide additional requirements.
Once the employee meets these requirements they are entitled to twelve (12) work-weeks of unpaid leave for any of the following events:
- in the event of the birth or adoption of a child;
- a serious health condition of their own or their spouse, child, or parent; or
- to care for a covered service member.
They must, however, provide the company with sufficient notice of their intent to exercise their rights under the FMLA, except for emergency situations.
Employers need to be aware that this type of leave is job-protected. This means that you cannot demote or fire an employee for exercising their rights under the FMLA. Additional claims an employee may make are:
- Refused to allow time off;
- Stopped providing health care coverage while on leave;
- Fired from position while on leave;
- Denied employment in the same or similar position upon returning from leave; and
- Leave was taken into account during performance reviews.
Employers are allowed to choose any of the following for alternative methods to compute the 12-month period in which the 12 workweeks of FMLA leave will be taken:
- the calendar year;
- any fixed 12-month leave year (such as a fiscal year for a year starting on a hand an employee’s anniversary date);
- the 12-month period measured forward from the date any employee’s first FMLA leave begins; or
- a rolling 12-month period measured backward from the date an employee uses any FMLA leave.
The fourth method is generally the most advantageous for employers. If an employer fails to select one of these options for measuring the 12-month period, the option that provides the most beneficial outcome for the employee must be used.
The FMLA is a field of land mines for employers. If one of your employees claims that you have taken adverse action against them due to their exercising their rights under FMLA or you simply need help in understanding your duties, contact our firm today to schedule your consultation.
Attorney Bruce Miller represents clients through all phases and types of employment litigation, ranging from individual charges and cases to broad-scale class actions and FLSA collective actions. He litigates all types of employment discrimination, harassment, retaliation, wrongful discharge, wage and hour violations, restrictive covenants, misappropriation of trade secrets and confidential information, unfair competition, defamation, and other employment-related torts.
Trial or Resolution
First, we conduct an early case analysis. We interview the key witnesses and collect the key documents. This step may seem obvious – indeed, to be expected – but, we believe that important interviews and document reviews are too often postponed until critical witnesses are prepared for deposition. The time to prepare the initial litigation analysis is soon after the claim is made or complaint filed. This preparation not only helps us litigate to win (if that is the client’s objective), it also helps us assess weaknesses in cases and settle them cost-effectively at the earliest possible stage before our adversaries have mastered the facts and before our clients have incurred substantial fees. Second, we collaborate with our in-house contacts to form a unique strategy for each case. Third, despite the individuality of each case, we recognize that aspects of employment litigation have repetition; therefore, we use our cutting-edge technology and library of work product from previous cases to streamline the implementation of the chosen strategy.
Mediation & Arbitration
Employers frequently require, through a written agreement or handbook, mediation and arbitration in the event of any employment dispute. Federal courts are requiring all civil actions to proceed to mediation, and most state courts are doing the same. Bruce Miller is also a trained mediator. He will use his experience as a mediator to serve his employer client to obtain the best possible resolution at mediation. Bruce Miller is highly skilled in employment arbitration and other forms of ADR. He can provide the representation your business needs to achieve results that meet your goals.
An employer does not want its former employee to leave or go to work for a competitor and take its customers, clients, employees, or proprietary information to a competitor. Balanced against the employer’s desire for protection, the employee needs to get another job after leaving your company. While South Carolina courts will protect an employer against unfair competition and misappropriation of trade secrets, they will not enforce a restrictive covenant preventing an employee’s right to work. This is the reason that any restrictive covenant must be carefully drafted to custom-fit your business.
Restrictive covenants, or agreements, are protections employers need to protect their business assets. They are your company defenses against an unhappy, departing, maybe terminated, employee. These covenants are controlled by state law. Many times these covenants are lumped together and called a covenant not to compete; however, there are actually four different types of covenants that we recommend for employers to have with their employees:
- Covenant not to compete
- covenant not to solicit customers or clients
- covenant not to disclose trade secrets
- covenant not to solicit employees
In South Carolina, under the "reasonableness test" a covenant not to compete will be enforced if it can be shown that the covenant
- is necessary for the protection of the legitimate interests of the employer
- is reasonably limited with respect to time, scope, and geography (place)
- is not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood
- is reasonable from the standpoint of sound public policy, and
- is supported by valuable consideration.
A covenant not to compete restricts an employee’s ability to compete with this former employer for a limited time within a certain geographical area. The covenant must define the scope of the business or work in which the employee is prohibited from engaging. If drafted properly, this covenant prohibits the former employee from competing with the employer, regardless of whether the termination of employment was by the employee or employer.
A covenant not to solicit customers prohibits the former employee from soliciting your customers. Your customers, or clients, are an important asset of your business. South Carolina courts are very likely to uphold this type of covenant.
A covenant not to disclose trade secrets is extra protection for the employer above the South Carolina Trade Secrets Act. Employers should use caution to make sure that the definition of "trade secrets" is not broader than the definition found in the Act.
A covenant not to solicit employees prohibits the former employee from soliciting his former employees – your other valuable asset. Because a covenant not to solicit employees is substantially similar, in effect, to a covenant not to compete, South Carolina courts also hold it to the same public policy requirements to be enforceable.
Another type of claim an employee may bring against your company is a claim for retaliation. These claims can be very dangerous because many jurors reportedly believe that employers tend to retaliate against employees who have made complaints against their employer. Retaliation covers a broad range of actions allegedly taken by the employer against the employee when the employee complained of activity that is protected by a law, such as, sexual harassment, illegal activity, improper safety procedures or equipment (whistle-blower), discrimination, or a hostile work environment covered under Title VII.
Probably the most common type of retaliation, an employer faces is under Title VII. Employers may not retaliate against an employee, or a former employee, because the employee has either opposed any practice made unlawful by Title VII or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. Both the ADEA and the ADA also afford similar protection to employees.
To prevail on a retaliation claim, one of the ways a plaintiff prevails is to oppose practices that are unlawful under Title VII, or the other federal laws, or must oppose practices that he, "reasonably believes" are unlawful under Title VII. This opposition can take many forms, such as, their own complaint, responding to questions from their employer, and just recently, a local, federal trial court declared employees conversations among themselves to rise to the level of protected opposition.
Another method to prevail on a retaliation claim is for the plaintiff to have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII." The scope of protection for activity falling under the participation clause is broader than that falling under the opposition clause, since activities falling under the participation clause are "essential to the machinery set up by Title VII."
Finally, to prevail under retaliation, the plaintiff must show a causal link between the protected activity and the retaliatory discrimination. To do this, a plaintiff may use either direct or circumstantial evidence. Many times a plaintiff will establish a causal link such as temporal proximity between the protected activity and the discriminatory act.
As an employer, most terminations of employees have no risk involved of any future litigation. Some terminations, however, because of the particular circumstances or protected category of the employee, contain certain risks. When this occurs, sometimes, it is wise for the employer to consider having the employee sign a separation agreement. These agreements should always include a complete release of all claims against the employer.
Although separation agreements all contain certain standard sections, each one should be customized for the particular termination and employee. We highly recommend that if you, as the employer, are paying the terminated employee any severance, you should have a signed separation agreement releasing the employer of all possible claims.
If the terminated employee is age 40 or older, the separation agreement should also include special language complying with federal law that protects these employees. This must include giving the employee 21 days to consider the agreement and seven days to revoke the agreement. Without this required language, the employer leaves open the possibility of a claim for age discrimination.
Attorney Bruce Miller has decades of experience in preparing separation agreements for employers. He has numerous forms, from which he can customize the separation agreement needed for your business and particular employee.
This has become a hot button issue in our culture. It is not uncommon for employees to claim the following:
- Sexually explicit language, innuendos, or dialogue from a superior or other employees;
- Inappropriate or unwelcome touching;
- Pornographic pictures or sexual gestures;
- Requests for sexual favors or personal relationships outside of the workplace;
- Negative treatment for ending a personal relationship; and
- Retaliation for reporting sexual harassment including wrongful termination, the denial of a promotion, or a demotion.
Sexual harassment is a form of sex discrimination that is prohibited by Title VII and state law. Sexual harassment generally is defined by the EEOC as any unwelcome sexual advances or requests for sexual favors, or any verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made, explicitly or implicitly a term or condition of an individual’s employment;
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
There are two types of sexual harassment in the workplace: "quid-pro-quo" and "hostile environment." "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.
In a "hostile environment" allegation, the employee will claim that there is unwanted sexual conduct that creates an intimidating, hostile, or offensive work environment, or that has the effect of unreasonably interfering with an individual’s work performance. Examples of such conduct include sexually, explicit graffiti; posters or calendars; vulgar and offensive sexually-related habitats; abusive language; drawings of sexually explicit behavior; incidence of indecent exposure by coworkers; requirement of lewd or revealing uniforms; emails, including any of the above; and any other unwelcome conduct of a sexual nature.
Victims of sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys’ fees. These cases can be particularly costly-both in dollars and other company resources-for an employer. It is important to develop a litigation strategy at the outset to fight these either to a verdict for the employer or a better settlement for the company.
Although this section discussed "sexual" harassment, one can substitute any of the other protected categories under Title VII: race, color, religion, national origin, age, pregnancy, or disability. En employer may receive a claim of harassment based on any of these.
Harassment Awareness & Avoidance Training
Attorney Bruce Miller has provided detailed, cost effective Harassment Awareness & Avoidance Training to hundreds of managers, supervisors, and non-supervisory employees as well as other types of workplace training. He has conducted training to an auditorium full of physicians at 7p.m. and to a garage full of mechanics at 7a.m. His former 300-attorney law firm had him conduct this training for all of the firm’s attorneys. Employees participating in his training program tell us that they leave the program better able to manage the complex workplace issues that they face.
Unlike consulting firms, attorney Bruce Miller is a trial attorney first, who has spent thirty (30) years in courtrooms in civil actions such as sexual harassment cases. As a result, he knows what works and what does not work in the area of management training especially regarding sexual harassment training. Similarly, he knows what really matters when litigating sexual harassment claims. He carefully provides both practical and cost effective sexual harassment training that will help create a positive working environment while working to insulate your company. This training also insulates the company with all of the legal defenses possible in the event a sexual harassment allegation is made against one of your employees, managers, or executives.
Attorney Bruce Miller does not stop at sexual harassment training; rather, he provides training on topics as diverse as his clients. Some of the areas that he provides training include:
- Fair employment practices training;
- Conducting effective workplace investigations;
- Proper disciplining of employees; and
- • Writing employee evaluations that are fair, but do not come back to haunt the employer.
He has put together extensive and practical training material to provide your employees, managers, executives, and human resources personnel with the tools to understand, recognize and prevent all types of harassment, including sexual harassment, in the workplace, all in a very cost-effective manner. There is simply no substitute for proper and thorough training.
In today’s rapidly-changing economy, maintaining a competitive edge is crucial to business success. A company’s proprietary information and business relationships are critical assets that warrant up-to-date legal protection. Employee contracts and agreements intended to protect against unfair competition are often inadequate or, for practical purposes, unenforceable, given the mobility of today’s global workforce. Boilerplate contracts used for every employee from sales representative to research scientist may not provide employers with the level of protection they need.
Attorney Bruce Miller helps employers prepare enforceable agreements that include provisions designed to protect confidential information and trade secrets, customer and employee relationships, and the company from unfair competition. He works closely with companies to strategically draft agreements that are in sync with business plans and are appropriate for the specific types of employees.
Bruce Miller goes one step further to help put mechanisms and protocols in place to enforce these important contracts; advising on the proper procedures during the departure of employees; and the correct acquisition and documentation of information. If necessary, attorney Bruce Miller has the cutting edge knowledge and jurisdictional expertise to provide counsel during major transactions, such as the hiring or exit of a critical employee.
To strengthen policies before a claim arises, attorney Bruce Miller counsels companies to ensure that their agreements are enforceable and that they are taking the appropriate steps to avoid confidentiality breaches. He also advises companies hiring employees from competitors to ensure that no contract interference occurs that might lead to litigation. Bruce Miller has drafted agreements and provided counsel on trade secrets and unfair competition for clients in various industries. While no company can completely avoid unfair competition, his experience in employment law and history of success assures that clients can effectively fight back when there is unfair competition.
With laws constantly changing to accommodate today’s mobile workforce, it can be difficult to determine when a departing or incoming employee’s actions are in violation of fair competition. Further, the courts often have a limited view of what can be considered confidential information. The process of investigating and substantiating an unfair competition and trade secrets claim can be a challenging and time-consuming endeavor. No company can afford to lose money and customers due to unfair competitive activity.
Attorney Bruce Miller works with clients to identify contract breaches and investigate illegal activity, ensuring a high level of protection from unfair competition. His firm conducts client and customer interviews and works with forensic computer specialists to investigate a departing employee’s business activities, focusing on e-mail history, document downloads, and even home-office records where appropriate.
In most employee transactions, both the former and new employers want to reach a suitable, business solution. Attorney Bruce Miller understands business goals and can help facilitate appropriate agreements, to the client’s advantage and success to its bottom-line.
Wage & Hour / Overtime
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 make costly mistakes in this area. 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. Unfortunately, the law has not been amended enough to keep pace with the global workforce. 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 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, unfortunately, is a misplaced belief. An employee classified as a non-exempt employee under the FLSA is entitled to overtime compensation for all time worked over 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 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 employer can be liable for back overtime compensation for a period of two years. However, if the misclassification is found to be willful, the FLSA awards back compensation for a period of three years. In addition, an employer is likely to be liable for liquidated damages, which is an additional amount equal to the back wages owed, unless the employer can otherwise make a showing of "good faith." An employer may also be required to pay the plaintiffs’ attorney’s fees for enforcing FLSA rights. Lastly, the employer will have to pay its attorneys’ fees for defending this action.
An employer may choose to use a DOL-approved pay plan that allows it to pay a non-exempt employee much more like an exempt employee. Two of these plans allow the employer to pay the non-exempt employee half-time (instead of time and one-half) for all hours worked in excess of 40 in a workweek. The two most commonly used pay plans are the fixed weekly pay for a fixed workweek pay plan and the fixed pay for a fluctuating workweek pay plan. Notably, under these pay plans; the FLSA does not permit deductions for absences of less than a week, whether they are for illness or personal reasons (although credit can be deducted from the employee’s leave bank). Given the complexity of these plans, we strongly advise that employers contact attorney Bruce Miller to evaluate and assist with implementing such pay plans.
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. These mistakes can prove to be very costly.
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 do to the employee within 48 hours, or the next regular payday, which may not exceed 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 is 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, employers must walk carefully in the analysis and decisions they make regarding wages. Attorney Bruce Miller, a Certified Specialist in Employment and Labor Law, has the experience necessary to guide employers through this dangerous minefield.
"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.Back to Top