Your micro- or small business has been served with a lawsuit or other complaint. Now what? Retain employment counsel to evaluate the claim to give you honest and prudent advice. A vigorous defense is always necessary. Employment disputes are expensive, time consuming and demoralizing. But, they do not have to be this way. Alternative dispute resolutions methods (“ADR”) including mediation and settlement conferences are effective ways to keep the expenditure of time and energy resources to the bare minimum.
We have experience defending and successfully resolving claims brought against micro and small business under the following statutes:
Fair Labor Standards Act (“FLSA”) – Wage and Hour Claims
The Fair Labor Standards Act (“FLSA”) ensures minimum working conditions for employees, including payment of wages, a minimum wage, payroll reporting, overtime pay, and many other protections. Employers are prohibited from contracting out of these provisions and are prosecuted when not in compliance.
Thus, contact us to seek legal assistance if you are owe wages, overtime pay, commissions or other federally legislated minimum employment standards. Equally seek our advice if you have questions about exempt and non-exempt employees and potentially misclassified employees.
Title VII of the Civil Rights Act of 1964 (“Title VII”) – Discrimination on the Basis of Sex, Race, National Origin, Color and Religion
Employers are prohibited from using protected categories as a basis for taking adverse employment actions (such as refusal to hire, suspension, demotion and termination) against employees or applicants. For instance, employers are prohibited from treating employees or potential employees differently or adversely due to their being white or black or Hispanic or any other race or due to the fact that one is a parent or one needs time away from work for child birth or adoption, including several other scenarios.
Most states have enacted legislation to delineate the protected classes; while on the federal sphere, the Equal Employment Opportunity Commission (“EEOC”) is the primary enforcing agency and protected classes include:
- Race, color, religion, sex and national origin, pursuant to Title VII of the Civil Rights Act of 1964.
- Race is also a protected class pursuant to 42 U.S.C. 1981 (Section 1981)
- Pregnancy and breastfeeding under the Pregnancy Discrimination Act (PDA)
Read more information on this topic in our Employment Law Blog, subjects include:
The Law Office of Sheri Oluyemi, LLC has assisted numerous clients with discrimination and harassment claims; it’s what we do. You can read client testimonials here. Each case is unique; consult with Attorney Oluyemi regarding your unique circumstances.
Americans With Disabilities Act (“ADA”) – Discrimination on the Basis of Disability and Pregnancy
The ADA prohibits employers from discriminating against “a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
Discrimination under the ADA includes an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . .”. Further, “[a]n employer may not retaliate against an employee for opposing any employment practice made unlawful by the ADA.”
Contact us for a free consultation if you are an employer attempting to become compliant with the ADA.
If your business has been served with a complaint, do not delay, communicate with us immediately.
Retaliation and Whistleblowing
Georgia is an “at-will” state. This means that employers may terminate an indefinite term employment or contractor relationship for any reason that is not otherwise prohibited by law, or for no reason whatsoever. Essentially, the courts will not second-guess a legitimate business decision in workforce management but will intervene when such a decision is retaliatory.
Retaliation for enforcing one’s rights by opposing discrimination or harassment, or by taking action to prevent the violation of certain federal and state laws, or whistleblowing about the employer’s violations of certain laws is prohibited. Some of the laws which offer protection to whistleblowers are:
- Occupational Safety and Health Act (OSH Act),
- Sarbanes-Oxley (SOX),
- Dodd Frank Consumer Protection Act (Dodd Frank), and
- the False Claims Act (FCA), among others.
Age Discrimination in Employment Act (“ADEA”)
Discrimination on the basis of age is prohibited by Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.:
It shall be unlawful for an employer-
(1) 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;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.
The Age Discrimination in Employment Act prohibits discrimination with respect to an employee’s terms, conditions, or privileges of employment on the basis of his age. The ADEA’s “protected category” includes those over 40 years of age. The ADEA provides for damages, including back pay, liquidated damages, and all of the plaintiff employee’s attorney fees.
Breach of Contract
Georgia is an “at-will” state. This means that employers may terminate an indefinite term employment or contractor relationship for any reason that is not otherwise prohibited by law, or for no reason whatsoever. Essentially, the courts will not second-guess a legitimate business decision in workforce management but will intervene when such a decision is a breach of contract.
An employment agreement or a contract for services providing for a fixed or definite duration can create further rights for the employee and independent contractor such as breach of contract.
Restrictive covenants including non-competition agreements, non-solicitation agreements, and non-disclosure agreements are each contractual issues. To ensure enforceability, they must be drafted in accordance with the Restrictive Covenant Act (RCA). Furthermore, several steps must be taken in tandem with such agreements to ensure confidential information and trade secrets are protected.
Employment agreements should not be entered into flippantly nor should adverse employment actions be taken brashly, but rather termination of such commitments require much thoughtful consideration and experienced counsel.
Family and Medical Leave Act
Under the Family and Medical Leave Act (“FMLA”), an eligible employee is, inter alia, entitled to a total of 12 workweeks of unpaid leave during any 12-month rolling period due to birth or adoption of a child; a personal or familial serious health condition that makes the employee unable to do their job; military caregiver leave; and exigency leave. The employee is also entitled to be reinstated to her original (or an equivalent) position on return from such leave, except in cases where the employee is a “key employee”. The employer is entitled to request and receive medical certification of the need for leave, as is applicable.
The FMLA imposes several duties on both parties. The employee has a duty to give the employer notice of her need for FMLA qualifying leave and the employer is in turn, required to provide notice of the employee’s eligibility.
To protect these rights, the FMLA creates a private right of action, which includes the “interference” claim in which an employee can allege that a private sector employer interfered with FMLA rights and a discrimination and retaliation claim in which an employee can allege that a private sector employer took adverse employment action against the employee because of her use, or attempted use, of FMLA protected leave. An employee can enforce her rights by contacting the Department of Labor or pursuing the claim in court with the assistance of a private attorney.