Introduction
Individuals throughout the United States are constantly filing — and employers are defending — grievances, EEOC discrimination charges, and state and federal court lawsuits asserting alleged violations of their employment contracts and civil rights. In order to pursue and defend such cases, however, a myriad of rules must be followed in order for one’s rights to be preserved and properly enforced.
Through a question-and-answer format, this article provides an overview of important general concepts encountered in the realm of labor and employment law. This article is intended for preliminary and information purposes only. The facts and circumstances of each case differ, and therefore when considering taking legal action you should strongly consider consulting an attorney who can provide you with legal advice.
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Q: What kind of relationship generally governs employers and employees?
A: Most states, including Virginia, Washington, D.C, and Maryland, follow what is known as the “at-will employment” doctrine. Under this doctrine, individuals employed in such states work “at the will” of the employer, and therefore can be terminated with or without cause (provided the termination is not due to discrimination based upon a prohibited factor as further discussed below). As a result, it is not a violation of law per se for an individual to be denied a promotion or terminated based upon favoritism or personality differences.
The Nature of the Employment Relationship
Q: Are there other types of employment relationships, and what documents reflect the nature of that relationship?
A: The other fundamental type of employment relationship is known as employment for a term. In such a situation, the underlying employment relationship provides that the individual is to be employed for a specified term, or period of time. Thus, if an individual’s employment contract states that he or she shall be hired for two years to perform a certain project, as a general matter they cannot be terminated prior to the completion of that term without adequate cause. Written employment contracts, to the extent they exist in a particular case, may very well state whether an individual is an employee at will or employed for a term. A company’s employee manual or handbook may also clarify whether an individual is an employee at will or subject to other protections. One should consult an attorney to review the facts of each particular case to confirm the nature of the underlying employment relationship and attendant rights.
The Hiring Process
Q: What questions may an employer ask a prospective employee?
A: Generally, an employer must avoid questions that seek the applicant’s race, color, religion, sex, national origin, age, disability, or health. Such inquiries raise the question of whether a company is basing an employment decision on a prohibited factor.
Questions to avoid include:
- Marital or Family Status
- Age, Sex, Height, Weight, or Eye/Hair Color
- Health or Physical Limitations
- Citizenship
- Economic Status
- Availability to Work Religious Holidays (including Saturdays and Sundays)
- Criminal Record (unless it is somehow “job related”)
Q: Should employers and employees use a written employment contract?
A: There are pros and cons to a written employment contract. On the one hand, a contract clarifies expectations. On the other hand, it may serve to defeat the “at will” employment status and disadvantage one party or the other. For example, if the contract were to simply read, “Employee shall be paid $60,000.00 per year,” rather than “Employee shall be paid a base salary of $2,500.00 bi-monthly, which is $60,000.00 annually,” the employee may argue that the contract is for a term of one year. Under this theory, if the employer were to fire the employee without cause, the employer could be liable to the employee for the total salary.
Q: When must an employer pay “time and a half?”
A: An employer must pay time and a half for all hours an employee works over 40 per week. There are a number of employees who are exempt from this requirement, however. Generally, if an employee exercises professional, executive, managerial, or outside sales functions, he is exempt from this law and is not entitled to overtime pay.
Many employers misclassify their employees and the penalty can be severe.
Q: May an employer demand that all employees submit to a polygraph (lie detector test)?
A: Generally, no.
The Firing Process
Q: Can an employer fire an employee with no “good” reason?
A: If the employer is the government, the answer is generally “no.” If the employer is a private business, the answer is generally “yes”. Virginia, Washington, D.C., and Maryland are all “at will” employment states. This means that, in the absence of a contract or other specific exception, an employee can quit at any time and an employer can fire an employee at any time with limited notice. Of course, this doesn’t apply to employees in “protected categories” such as race, color, religion, sex, national origin, age, or disability if the termination is based on their membership in the protected category. And it doesn’t apply to mass layoffs.
This means, for example, that an employer could fire an employee because he or she didn’t like the “quality” of the employee’s work — even though every person in the world other than the employer would agree that the work quality was excellent. (Of course, if the “stated reason” is proven to be a pretext for discrimination based on a protected category, and is not the “real reason” for the termination, the employee may have a case against the employer for a violation of civil rights).
Q: Must an employer pay an employee “severance pay” or assist the employee is locating a new job?
A: Generally, no. Some states require an employer to provide “reasonable notice.”
Q: Is this true even if the employer fires the employee for no “good” reason?
A: Yes.
Q: Should the employer have the employee sign a termination agreement?
A: Yes, but only if the employee will sign! The agreement should give a specific termination date and reason for the termination. It should also settle such matters as:
- Health, disability, and life insurance and COBRA notices;
- Payment of any accrued salary and other forms of compensation, such as stock options and vacation time;
- Reimbursement for out of pocket expenses;
- Retirement account;
- Return of company property; and
- Settlement of all accounts.
The employer should also consider having the employee sign a release of liability for the termination. Certain businesses may also want the employee to sign a “non-compete agreement.” To do either of these, however, the employer must pay money to the employee. Failure to do so may make the agreement unenforceable.
Q: Must an employee sign a “termination agreement” or a “non-compete agreement?”
A: No. An employee should consider negotiating for a payment in exchange for his or her signature.
The Family Medical Leave Act–What Employers and Employees Should Know
Q: What is the new Federal Family Medical Leave Act?The Family Medical Leave Act (FMLA) of 1993 sets forth federal requirements regarding Employer – Employee relationships and leave. The Act was designed to “balance the demands of the workplace with the needs of the family.” It basically allows the employee a total of 12 work weeks during a 12 month period to care for a new child, for serious illness of an employee, or a serious illness of an employee’s family member. Briefly stated, an employer must allow an employee to take up to 12 weeks off from work when that employee is pregnant, seriously ill, or taking care of a seriously ill family member.
Many legal questions arising over the ambiguity of this new law. What qualifies as a serious illness? What qualifies as a family member? Since this law is new, the Courts have not resolved many issues, leaving this area ripe for litigation. On the employer’s side, in order to determine if the requested leave qualifies for protection under the FMLA, an employer must be able to establish the reason and legitimacy for an individuals’ leave. Employers need to know whether a particular absence is protected under the FMLA, and therefore, whether it should be counted against the employee as an un-excused absence. For example, if an employer allows an employee two weeks of sick leave, and the employee has already used the two weeks, and then calls in sick a number of other days, the employer must determine whether the days of absence are protected under the Family Medical Leave Act before he or she could fire the employee. An employer should inquire as to how long the employee was out, whether the employee went to a doctor or other health care provider, or whether the employee completed the appropriate certification forms from the employer to show that the leave was covered.
A:
It is important for employers to preserve evidence as to the reasons for the leave so that they can create a paper trail to protect themselves from potential law suits. On the other hand, an employee should also leave a paper trail to justify leave under the FMLA.
The definition of a serious medical condition is perhaps the biggest problem under this Act. The Department of Labor has developed a standard form that employers can send health care providers to gather information about the date the condition began, probable duration of the condition, medical facts about the condition and whether the employee needs a reduced schedule. Employees must provide similar documentation about the serious medical condition of a family member.
The FMLA must be set forth in any Employees’ Handbook distributed by an employer. Thus, if the employer has an Employees’ Handbook, it is required by law to include therein the provisions of the Family Medical Leave Act.
A Look at Non-Compete Agreements
Q: What is a “non-compete” agreement?
A: A non-compete agreement is a contract between an employer and an employee that prevents the employee from competiting with the employer after the employee leaves the company. This includes prohibiting the employee from working for a competitior, so the agreements can be very limiting.
New employees often do not realize the significant consequence of entering into such an agreement, naturally assuming that the relationship will run smoothly. Many employees sign non-compete agreements with the mistaken assumption that they are unenforceable. As a result, employees often sign such non-competition agreements, wherein they agree to not work with the company’s clients and/or competitors for a period of years after the conclusion of their employment, with little negotiation. A non-compete agreement should be negotiated with the same vigor as one negotiates salary.
Q: If I have signed a non-competition agreement, or are considering signing one, what is the legal standard that would apply to determine its enforceability?
A: Most states determine the enforceability of non-competition agreements under a so-called “reasonableness” standard. For example, in Virginia, a court will review the agreement under a three prong standard: (1) From the employer’s standpoint, is it no broader than necessary to protect the company’s legitimate business interests; (2) From the employee’s standpoint, is the agreement unduly harsh and oppressive in precluding his or her ability to earn a livelihood; and (3) Is the agreement consistent with public policy? The agreement must be reasonable under all three prongs. Each agreement is considered under the particular facts of each case, depending upon the particular wording of the agreement at issue and the attendant facts of the case. As a general matter, such agreements are generally disfavored under the law of most states, and in such circumstances will be strictly and narrowly construed against the company and in favor of the employee. However, they are certainly enforceable if drafted correctly.
Each individual should carefully read and assess a proposed non-competition agreement before they accept an offer and submit their resignation to leave a job. Particularly in the sales field, a prospective employee should ask at the interview whether he or she would be expected to execute such an agreement.
Click here for a “real-life” application of a non-compete agreement where the employer won $172,395 against an employee who breached his non-compete agreement.
Sample Sexual Harassment Policy Statement
It is very important to have a written policy statement — that you actually follow — to protect your business from sexual harassment lawsuits. The following is a portion of a sample statement. It is not applicable for all businesses, however, so you should consult an attorney before using this or any other form statement.
DIVERSITY MISSION STATEMENT
ABC Corp. has a corporate commitment to excellence in diversity throughout our company; creating a culture that values all employees and customers. The company is dedicated to providing a barrier-free environment where all employees and customers feel respected. This commitment has resulted in the development of a corporate diversity program that addresses the areas of recruitment, employment and promotion, training, minority and women-owned business development and community outreach programs. The company is also dedicated to working to promote harmony in the communities where we do business.
HARASSMENT STATEMENT
ABC Corp. is committed to providing a bias-free professional work environment in which every employee, and customer, is entitled to be treated with respect as an individual. Our policy does not permit discriminatory harassment of any form. Any unwelcome behavior, physical or verbal, or conduct that creates an intimidating, hostile or offensive work environment is prohibited.
Abusing the dignity of any individual through harassment – (racial, sexual, ethnic, or religious) will result in disciplinary action, ranging from reprimand to discharge. Actions such as these should be reported to management without any fear of retaliation. If you, as an employee, feel you have been harassed in any manner, report your concerns to Joe Schmo. You should also take any customer concerns of this nature to these individuals.
SEXUAL HARASSMENT POLICY
ABC Corp. absolutely prohibits sexual harassment of its employees in the work place by any person in any form.
Sexual harassment may include any of the following:
- Threats or insinuations that another employee’s refusal to submit to sexual advances will adversely affect the employee’s employment, evaluation, wages, advancement, assigned duties or any other conditions of employment or career development.
- Any unwelcome sexual advances, flirtations, or propositions.
- Any verbal abuse of a sexual nature, including jokes. Sexually oriented jokes and comments, even though they might seem innocent to you, must be avoided in the workplace
- The display of sexually suggestive objects or pictures.
If you feel you have been sexually harassed in any manner, report your concerns to the office manager.
Your complaint will be investigated as promptly, thoroughly, and as confidentially as possible.
Appropriate, corrective action will be taken immediately to end the harassment and prevent the misconduct from recurring.
Disciplinary action for the misconduct may range from reprimand to discharge.
Follow up inquires will also be made to ensure the harassment has not resumed and/or any retaliation has taken place.
Conclusion
The landscape of labor and employment law is so broad that it is impossible to cover all its areas in this article. When any such questions arise, the individual is strongly encouraged to consult an attorney regarding his or her rights.
