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EMPLOYMENT LAW

  • At-will employment states

  • EEOC complaints

  • Employee versus contract worker (1099 worker)

  • Employers' duties post-Covid

  • Firing employees the right way

  • Hostile work environment

  • Virginia's new employment laws

  • ...and more

There has been an enormous amount of upheaval and change in employment law in the last few decades, and more so in the last few years.  Virginia, for example, made major changes to its minimum wage and other employment laws.  The field is evolving all the time.  Employers and employees, including job applicants, would be wise to educate themselves on the laws prescribing and supporting certain behaviors for both sides.  Employers should commit to being in full conformity with all federal, state, and local employment laws, and, if anything, err on the side of over-compliance if possible.  Employees should know that there are indeed many laws that protect them from discrimination and bad behavior in the workplace, but that not all situations they find unpleasant are actionable. 
 
In the sections below, my aim is to give the reader a general knowledge of the legal framework of employment law regulating employers and employees alike.  I invite you to contact me for an initial, complimentary consultation to discuss the specific facts of your matter.
At-will employment states
 

You may be surprised to learn that all states in the United States are now "at-will" jurisdictions.  At first glance, this overly broad term seems to give the impression that employers can fire their employees whenever they wish.  Is that the case?  Like many things in life, it depends.

 

Under at-will laws in all states, employers can indeed fire employees for any reason they wish -- except for reasons that the law prohibits or if there is an employment contract.  So, for example, an employer might be able to fire an employee for offensive odors (preferably giving the employee a warning and time to improve the situation), but could not fire that same employee for reasons based on race, gender, age, sexual persuasion (in some jurisdictions), national origin, religion, etc.  The protected classes listed here are examples of some of the groups that are protected under some laws.  The list of protected groups will vary according to whether the matter is subject to federal, state, county, and sometimes even city or town regulations.  In more local matters, the laws are often called "human rights" or "civil rights" laws, and there are separate local offices that handle these cases.

Employers' duties post-Covid
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It's a whole new world out there for employers re-opening their workspaces in the era of Covid dangers.  How is an employer to know what to do to protect her/his vaccinated and unvaccinated (for whatever reason, including those who are immuno-compromised) employees, and guard the company from potential negligence-based or other lawsuits? 

 

At the federal level, both employers and employees should be aware of the safe workplace guidelines published by the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor, which you can click onto using this hyperlink:     https://www.osha.gov/coronavirus/safework - role-employers-workers. 

 

Check back for more information.

Firing employees the right way
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When an employer decides it's time to fire an employee, s/he must do the firing the right way.  First of all, note that in many cases, the employer does not have to give severance pay -- although a prudent employer may want to do so in the interest of fairness and avoiding becoming known as an employer to stay away from.  (Employment contracts for specific employees may, and probably do, call for severance pay).

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You may be very surprised to learn that "older" under U.S. laws means anyone over the age of forty.  In our brave new world, the concept of "older" has become increasingly young.  While people in their "golden years" feel younger and younger, those who hit the threshhold year of forty suddenly discover they are deemed "older" under our federal laws.  If you, as employer, are concerned that when you fire an older person (remember that means anyone forty or more), that person may make a claim against you for age discrimination (a "protected class" under most employment laws), I highly recommend that you seek legal counsel.  There are surely do-it-yourself severance contracts online, but you may be skating on thin ice if you feel you can do this alone.  Your goal will be to have the fired, elderly employee waive her/his rights to sue you for age discrimination.  The severance contract has to specifically cite the ADEA (The Age Discrimination in Employment Act of 1967) and the OWBPA (the Older Workers Benefit Protection Act of 1990, which amended the ADEA by adding more benefits and safeguards), and state that the employee specifically gives up her/his rights to make discrimination claims under those two laws and any other relevant laws.  Moreover, the severance contract has to state that the employee has a full three weeks (21 days) in which to decide whether or not to sign the contract, plus another seven days after signing the release to change her/his mind and not agree to the release -- even if s/he signed it -- and that the employee has the right and is advised to consult with an attorney before signing the severance/release agreement.  Failure to check all these boxes may result in the employer paying severance pay and being sued nevertheless.  When it comes to consulting with a lawyer, employers should not be "penny wise and pound foolish" by trying to do themselves what lawyers are trained to do, but rather get proper legal advice before an unwanted situation arises.

 

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More content will be coming soon.  In the meantime, if you are an employer or an employee and have questions you'd like to ask, feel free to contact me for a complimentary initial discussion.  Thank you!

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