Employees are sometimes subjected to poor treatment at their jobs. While these types of treatment might be unfair, they are not always illegal. Employment law claims can be complex because of the subtleties that might be involved. In many cases, it can be difficult to determine whether adverse action was simply unfair or whether the conduct crossed the line into illegal discrimination under state or federal laws. Employment lawyers use early consultation with prospective clients to determine the legality of situations and conduct within the workplace to figure out whether potential claims are legally merited. Here is some information from the employment attorneys at Swartz Swidler about the difference between unfair but legal workplace conduct and conduct that is unlawfully discriminatory or otherwise unlawful.
Illegal Discrimination
Many complaints filed with the Equal Employment Opportunity Commission or EEOC involve allegations of discrimination. Workplace discrimination based on the protected characteristics of applicants or employees is illegal under state and federal law. Multiple characteristics are protected, including sex, sexual orientation, gender identity, race, disability, religion, national origin, pregnancy, age, and others.
A common scenario that sometimes arises in workplaces involves a female worker who is passed over for promotion following a negative performance evaluation in which the evaluator notes that she has some type of negative personality characteristic such as being overly assertive. Meanwhile, a less-experienced male co-worker is given the promotion. Since gender is a protected characteristic, the female worker might have grounds to file a gender discrimination claim. However, she will need to present evidence to show that her employer was motivated to pass her over for a promotion based on her gender and not because of her assertiveness. An employment lawyer can help to determine the underlying motivation for the action.
Another example might involve an employee who is terminated so that his or her employer can replace him or her with a lower-cost new hire. Employees who work at will can be fired for any reason, including replacing them with less experienced workers who will work for less money. While that is unfair, it is not necessarily illegal. However, if the terminated employee was aged 40 or older and was fired because his or her supervisor wants to hire more younger employees, the termination might violate the Age Discrimination in Employment Act.
Violations of the Family and Medical Leave Act
The Family and Medical Leave Act is a federal law that applies to employers with 50 or more employees who work within 75 miles of each other. Eligible employees can take up to 12 weeks off from work as unpaid leave to deal with a serious illness, bond with new children, or deal with their family members’ serious medical conditions.
Eligible employees must request FMLA leave and provide their employers with sufficient notice whenever possible. This leave is job-protected, meaning that the employees must be returned to their former positions or to positions that are substantially similar when they come back to work following leave.
An example of an illegal violation of the FMLA might involve an employee taking two weeks of leave to address her serious medical condition. While the employee is still on leave, her employer asks to see her medical records so that the employer can review them. However, medical records are private. Employers can ask for a doctor’s note but cannot demand to review an employee’s medical records. If the employer then demotes the employee or fires her for failing to turn over her medical records, that type of conduct violates the FMLA.
An example of something that might be unfair but not illegal might involve an employee who is placed in a different position when he or she returns instead of his or her former job. Even if the new job is not as desirable, this is not illegal as long as the new job is not a demotion and pays the same salary as the former job did.
Overtime Violations
Employers are required to pay non-exempt, statutory employees an overtime premium for each hour worked above 40 during a workweek under the Fair Labor Standards Act. Overtime pay is calculated at one-and-one-half times the employee’s regular rate of pay. Employees who are misclassified as exempt employees or who are not paid overtime for the additional hours they have worked may be entitled to recover back pay.
If an employer misclassifies a non-exempt worker as an exempt employee to try to evade the overtime rules or only pays an hourly employee his or her regular pay rate for hours worked beyond 40 during a workweek, that is illegal. However, if an employer requires employees to work more than 40 hours during a week and pays overtime to them for the additional hours, that is not illegal. Employers are allowed to ask employees to work overtime hours as long as they are fairly compensated for the extra hours worked.
Illegal Retaliation
Employers are prohibited from retaliating against employees for exercising their rights. For example, if an employer takes adverse action against an employee because he or she filed a discrimination complaint or participated in an OSHA investigation, that is illegal.
For example, it is illegal for an employer to fire, demote, transfer to a less desirable position, or engage in other adverse actions because of an employee’s discrimination complaint or report made to OSHA about a safety violation. If an employee does so and is then fired because of doing so, the employee has grounds to file a wrongful termination and retaliation claim. However, if the employer had valid grounds unrelated to the complaint or report to fire the employee, it is not illegal.
Unlawfully Hostile Work Environment
Some types of harassment against employees are based on their protected characteristics. When the harassment is severe or pervasive enough to create a hostile work environment, it is illegal. However, single instances of harassment are not enough to create a hostile work environment unless they are very severe.
For example, being told a single obscene joke is likely not enough to support a hostile work environment harassment claim. However, if a woman is persistently told obscene jokes, is sent repeated emails and text messages, is excluded from meetings and opportunities for advancement and is otherwise subjected to abusive conduct based on her gender, it might be enough to support a harassment claim based on a hostile work environment.
Talk to Swartz Swidler
Determining whether something at work is simply unfair or illegal can be difficult. If you think that you might have been the victim of unlawful workplace conduct, you should consult with an employment lawyer at Swartz Swidler. Call us today at (856) 685-7420 to schedule a consultation.
