The end of the year is always a great time to remind employees of the most common ways that employers violate their rights. This is based on my experience in nearly 2,000 employment lawsuits I’ve filed against employers, in both Florida and Georgia courts. Most of these violations can lead to large damage awards in favor of the employee. Deadlines for pursuing these claims vary but can be very short. If any sound like they might apply to you, speak to an employee-rights lawyer immediately. And remember the ABCs in hiring a lawyer: (a) Be sure the lawyer represents employees only – NOT employers, (b) be sure the lawyer is an expert with heavy experience in employment law, and (c) be sure the lawyer has heavy experience in your kind of case.
Without further ado, my Top 10 list of employer violations of employee rights:
- BAD JOB REFERENCES. Employer misconduct in bashing employees in response to job references from prospective employers continues to lead the list. What is it about employers that prevents them from letting go? From continuing to harass employees even after they’ve tried to move on? The law: Federal laws, as well as the laws of both Georgia and Florida, provide strong rights for employees who suffer this kind of misconduct. The deadline for filing a claim: The deadline for this kind of claim can range from 180 days to four years.
- RETALIATION. Employers often retaliate against employees who have complained about violations of their rights. This can include retaliation for complaining about discrimination, harassment, the failure to provide proper leave and the failure to pay proper wages and overtime. It’s all illegal. The law: There are more than a dozen laws protecting employees against illegal retaliation. Federal law protects employees everywhere. Florida and Georgia laws vary somewhat in who they protect, but one way or another, there is protection for everyone. The deadline for filing a claim: as a general rule, the deadline ranges between 180 days and 365 days.
- DISCRIMINATION AND HARASSMENT. Employers continue to discriminate against employees on the basis of race, gender, age, disability and a host of other protected classes. Discrimination is common in hiring, promotions, discipline and termination. State and federal laws provide protection from the moment a person submits a job application through the moment of termination. These laws provide protection even where an employee is still on new-hire probation, or doesn’t qualify under internal employer policies. In other words, state and federal civil rights laws provide much broader and deeper protection than most employers’ own policies. Don’t let an employer tell you that you don’t have any basis to challenge their misconduct. That’s usually wrong. The deadline for filing a claim: The deadline for general discrimination claims usually runs between 180 days (Georgia) to 365 days (Florida). In my own practice, I can usually find a way to pursue a claim even if these deadlines have passed, using other, lesser-known but equally-powerful laws that many overlook. One of my favorite go-to laws to get around short deadlines is 150 years old. If there is a will, there’s a way, and there’s always a will.
- FAILING TO PAY WAGES FOR ALL TIME WORKED. Many employers openly failed to pay employees for time worked. This has become a big problem now that many employees work from home at night or on weekends, responding to emails or logging in to finish up. It’s always been a problem with employers who fail to pay employees who perform work off the clock, or who work through their lunch hours. The rule is a simple one: if you do the work, you must be paid. Period. The law: There are excellent federal, Georgia and Florida laws protecting employees who are cheated of legitimate wages. The deadline for filing a claim: As a general rule, the deadline for bringing wage claims is two to three years, depending on the facts.
- FAILING TO PAY OVERTIME. There seems to be no shortage of ways employers cheat employees of overtime pay. Bosses will go into the payroll system and edit time back to 40 hours, or order employees to just write down 8 hours no matter how many were actually worked, or tell employees to take time off instead of paying them. Under most circumstances, all these tricks are illegal and expose the employer to double damages, attorneys’ fees and more. The law: Federal law and both Georgia and Florida allow employees to sue for unpaid overtime. The deadline for filing a claim: Two to three years.
- MISCLASSIFYING EMPLOYEES AS “INDEPENDENT CONTRACTORS.” The fact is that if you work for an organization for anything resembling a regular basis, you are probably not an independent contractor. Check out my website 1099Fraud.com for more information. Why do employers do this? It saves them a fortune on wages, overtime and insurance benefits. The law: The primary laws I sue under to recover damages for employees are federal, and they have very sharp teeth. The deadline for filing a claim: Two to six years.
- FAILING TO PROVIDE FMLA LEAVE. The FMLA is not a complicated law. But many employers still don’t get it. They must provide you general notice (read: handbook and a poster) and specific notice once they become aware of facts that should tell them you are entitled to FMLA leave. Many fail to provide employees proper notice, many miscalculate the amount of FMLA leave the employee is entitled to, and many wrongfully fire employees who’ve asked for or taken leave. The law: The FMLA itself provides protection against interference with FMLA rights and against retaliation for using FMLA leave. But there are other laws I normally include in such a lawsuit. The deadline for filing a claim: Generally, two years.
- FAILING TO TREAT A MEDICAL CONDITION AS A DISABILITY. The Americans with Disabilities Act (ADA) is very liberal in favor of employees. Many conditions that might not seem to be disabilities are in fact protected under this law. The word “disability” has many highly-specialized legal meanings, depending on the setting. Ask an expert in the area of employment law whether your condition is a “disability” in the employment sense of the word. The law: The ADA is the primary law providing the right to sue an employer that has failed to accommodate an employee or that has failed to hire, promote or has terminated an employee because of an actual or perceived disability. I normally use several other laws to strengthen a lawsuit brought under the ADA. The deadline for filing a claim: It varies, but generally the deadline is 180 days in Georgia, and 365 days in Florida.
- FAILING TO PROVIDE WORKERS’ COMPENSATION BENEFITS FOR AN ON-THE-JOB INJURY. Many employers pressure employees not to report injuries. They’ll send them home, and minimize the nature of the injury. I’ve had clients that fell off three-story roofs and were told to brush it off and get back to work. Why do employers do this? Because workers compensation insurance is expensive. Even a single claim can sharply increase the employer’s insurance premiums. Thus the pressure to either minimize the injury or ignore it altogether. The law: Florida has a specific law protecting employees in the situation. Georgia does not, but there are other ways to help an injured employee recover money damages in these circumstances. The deadline for filing a claim: The deadline varies from 180 days in Georgia to four years in Florida.
- FAILING TO APPLY FMLA MEDICAL LEAVE IN COMBINATION WITH LEAVE AS AN ACCOMMODATION UNDER THE AMERICANS WITH DISABILITIES ACT. Many employers still fire employees the day after they’ve used all their FMLA leave. This is often illegal because medical conditions that qualify an employee for unpaid leave under the FMLA may also entitle the employee to more unpaid leave under the ADA. This is because the ADA also requires unpaid leave in many situations. When it does, the employer must usually provide additional unpaid leave under the ADA, beginning the day after the FMLA leave runs out. Firing an employee without considering and/or extending further unpaid leave under the ADA is often a serious violation of the law. The law: The FMLA and ADA now working combination, and are usually the two laws upon which such lawsuits to recover money damages are brought. The deadline for filing a claim: The deadline ranges from 180 days in Georgia, to 365 days in Florida, to 2 years in both states, depending on the facts.
Have a great and safe New Year’s Eve.
Categories: Accommodations, ADA Retaliation, Age Discrimination, Bad/Retaliatory Job References, Defamation, Disability Accommodations, Disability Discrimination, FMLA Leave, Pregnancy Discrimination, Race Discrimination, References, Retaliation