What are my rights as an Employee?
Frequently Asked Questions
The following Questions and Answers are not legal advice. They are merely to help you understand whether your rights may have been violated. Each situation and set of circumstances is unique and a free consultation with a New York City Employment Lawyer is recommended before taking any action related to your employment. If you think your employee rights have been violated or may be in jeopardy, contact your New York City Employment Attorney at Mansell Law today for a free consultation.
Family Medical Leave Act (FMLA)
Family and Medical Leave is only available to:
- Employees of an employer with 50 or more employees;
- Who were employed at least 12 months and who worked in excess of 1,250 hours in the previous 12 month period.
You can take Family and Medical Leave for:
- The birth of your child, whether you are the mother or father;
- The placement of a child with you for adoption or foster care;
- To care for a spouse, child, or parent who has a serious health condition;
- To care for your own serious health condition, if it makes you unable to perform the functions of your job; and
- To provide caregiver or exigency help for a spouse, son, daughter, or parent who is a member of the military service.
You are entitled to 12 weeks of protected leave under the FMLA during a 12 month period. An employer has the right to decide how when the 12 month time period starts. Employers usually use a rolling 12 month period which mean the calendar starts when you take leave for the first time. An employer can also use a calendar year or other method to calculate your 12 month period.
As a general rule, your employer must restore you to the position you held when the leave began, or to an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment. However, when you return, you have no greater right to reinstatement or to other benefits than if you had been continuously employed during the leave. For example, if you would have been laid off during your leave, you will not have the right to restoration at the end of the leave.
Intermittent leave is time off from work on an occasional basis, as opposed to entire days at a time. Your doctor must certify that you need to take occasional or intermittent time off in order to qualify for it.
You can qualify for intermittent leave where you or your family member’s condition is unpredictable or occasional and may not take require you take a whole day off work.
Intermittent or reduced schedule leave may be taken for:
- planned medical treatment that is medically necessary;
- unanticipated medical treatment that is medically necessary;
- recovery from treatment;
- recovery from a serious health condition; or
- providing care or psychological comfort to an immediate family member with a serious health condition.
Discrimination and Wrongful Termination
Discrimination is when you are treated differently than others. Discrimination becomes unlawful when the reason for unequal or disparate treatment is based on your age, sex (gender), race, creed, religion, national origin, disability and veteran’s status. An employer cannot treat an individual or a group less favorably in the terms and conditions of employment based on being a member of a protected class.
The protected age for Age Discrimination is 40 years old. Generally, you must show that individuals under 40 were treated more favorably than you. However, Courts have also found instances where a “substantially younger” employee was treated more favorably even if he or she was above age 40.
Not necessarily. Before you quit or resign your employment, always consult with an attorney. The Courts prefer an individual remain employed while the individual is seeking to remedy to unlawful discrimination. However, the Courts also recognizes that certain situations are unbearable and force a person to quit or resign. If you have quit or resigned, it does not mean you do not have a case
Disability Discrimination (Americans with Disabilities Act – ADA)
In order to be protected under the ADA, you must be a qualified individual with a disability. Even if you do not consider yourself disabled, you may still be protected.
The definition of disabled under the law may differ from your definition of disabled. Therefore, it is important to contact an employment attorney any time an employer is taking actions related to an actual or perceived physical or mental condition.
An individual with a disability is a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.
There are endless different accommodations that have been found reasonable by the Courts. Reasonable accommodation may include, but is not limited to:
- Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
- Job restructuring, modifying work schedules, reassignment to a vacant position;
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:
- A deaf applicant may need a sign language interpreter during the job interview.
- An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
- A blind employee may need someone to read information posted on a bulletin board.
- An employee with cancer may need leave to have radiation or chemotherapy treatments.
Yes. An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. if an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.
Different standards apply to applicants and employees.
Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs.
Medical examinations of employees must be job related and consistent with the employer’s business needs.
Even if the exam or inquiry is determined to be lawful, it may only seek information necessary to determine if the employee is able to perform the essential functions of his or her job.
Medical records are confidential. The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.
Sexual harassment is a form of discrimination, where one gender is treated worse then the other through:
- unwelcome sexual advances;
- requests for sexual favors, and
- other verbal or physical conduct that is based on sex.
Sexual harassment does not have to be overtly sexual. Sexual harassment includes, for example, harassment of members of one gender even in a non-sexual way. For example, if the men in workplace grease the tool box handle of the women who work there, they have engaged in sexual harassment.
Sexual Harassment must adversely affect your employment, unreasonably interfere with your work performance, or create an intimidating, hostile, or offense work environment.
First, contact an employment lawyer immediately. The steps for protecting your rights can be complex. Failure to follow the rights steps can make proving sexual harassment hard or even result in losing a claim.
Second, make sure your employer is aware of the harassment is occurring. Document all instances of harassment in writing and submit it to the appropriate individual within the company. Often times, employers will have a sexual harassment policy that states to whom the sexual harassment should be reported.
If there is no policy, report the harassment to your supervisor or Human Resources. If your supervisor is the harasser and your employer does not have a Human Resources department, report the harassment to upper management and your supervisor’s boss.
Yes. “Same sex” harassment, or sexual harassment by someone of the same gender, is unlawful if it is sexual in nature or because of sex. The same rules and laws apply to same sex sexual harassment.
Not necessarily. Before you quit or resign your employment, always consult with an attorney. The Courts prefer an individual remain employed while the individual is seeking to remedy to unlawful harassment. However, the Court also recognizes that certain situations are unbearable and force a person to quit or resign. If you have quit or resigned, it does not mean you do not have a case.
By law, your employer cannot retaliate against you for making a complaint. In addition, an effective sexual harassment policy should state that retaliation is prohibited. Most courts will therefore consider a failure to complain unreasonable, unless you have good reason to believe that a complaint would be ineffective and useless.
The law protects employees from retaliation by employers for asserting protected rights. The gist of a retaliation claim is that an employer “gets back” at an employee for doing something protected by law. To win a retaliation claim, employees must prove that they:
- engaged in protected conduct;
- their employer took an adverse action against them; and
- their employer took the adverse action because they engaged in protected conduct.
The starting point for every retaliation claim is protected conduct. Conduct is protected only when a specific law prohibits retaliation for engaging in the conduct, or when a court finds that retaliation against the conduct jeopardizes established public policy. Examples of protected activities are:
- Opposing discrimination;
- Opposing sexual harassment;
- Engaging in discussions about the terms and conditions of your employment;
- Discussions about union formation;
- Opposing the failure to pay minimum wages or overtimes wages;
- Other opposition to any unlawful conduct done by the employer.
Contact an employment attorney immediately. You need to know if you are engaging in a protected activity. If you are not, you may not be protected.
In addition, make the employer aware of the retaliation. Contact your Homan Resources department and document the retaliation in writing. Keep track of all instances of retaliation in writing.
The evidence of discriminatory retaliation is identical to that used to prove discrimination claims. An employer retaliates by treating employees who oppose their unlawful conduct less favorably than similarly situated employees who did not engage in protected conduct.
As long as you oppose unlawful discrimination, you are protected from retaliation. The discrimination does not have to be directed at you. However, you must engage in some sort of conduct to oppose it, and your employer must have knowledge of that conduct.
In Ohio, the standard for receiving unemployment benefits is whether or not the individual was terminated or quit with “just cause.”
Ohio law defines “just cause” for a quit or termination as whether “the action taken was what an ordinary person would do under similar circumstances.”
An applicant’s unemployment must not be his/her fault. If discharged from a job, the applicant may be considered not eligible for benefits — if the employer shows why the discharge was for “just cause.”
Examples of a discharge for “just cause” include if the worker:
- Violated established company rules;
- Neglected the responsibilities of the job;
- Disregarded the Employer’s interest; and
- Performed the work carelessly
On the other hand, if the worker was fired because he/she refused to perform duties that were known to endanger one’s health or violated accepted legal standards, the discharge is not considered to be for “just cause.”
An applicant’s unemployment must not be his/her fault. If the applicant quits a job while the option of remaining employed exists, he/she causes the unemployment. To establish eligibility, the applicant must show that he/she had “just cause” for leaving the job.
Examples of “just cause” may include such reasons as:
- The worker’s health was endangered or he/she was physically unable to do the work. The worker notified the employer with a medical statement before quitting and gave the employer reasonable time to find other suitable work for him/her.
- The employer refused to meet conditions of the hiring agreement, such as hours or wages.
- The employer refused to provide legally required safety equipment or measures.
- The employer required the worker to perform work that violated accepted moral or legal standards.
- The applicant must provide information showing that he/she had “just cause” for quitting the employment.
Fair Labor Standards Act (FLSA) – Overtime Compensation and Minimum Wages
The general rule is that employers must pay employees at a rate one and one half times that of their regular rate for hours worked in excess of 40 in a week, unless the employer proves that it is not covered by the overtime law or that the employee is “exempt” from overtime.
Exemptions are like exception to the general rule regarding overtime. There are numerous exemptions, some specific and some general. The general exemptions rule states: If you perform primarily executive, administrative, or professional duties and you are paid a salary of $455 or more a week, you are probably exempt from overtime. Additionally, if you perform primarily computer duties and are paid $27.63 an hour or more, you are probably exempt from overtime as well.
If your primary duties are management or executive, this exemption may apply to you. Executive duties include:
- managing the business or a portion of it;
- Directing the work of at least two or more other full-time employees or their equivalent; and
- Having the authority to hire or fire other employees, or giving your employer suggestions and recommendations as to the hiring, firing, advancement or promotion of other employees.
Store managers who spend more than half of their time doing non-managerial work may still be exempt as an “executive,” as long as managing the business of the store is their primary duty.
If your primary duties are Administrative, this exemption may apply to you. Your duties are “administrative” if your primary duty:
- is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
- includes the exercise of discretion and independent judgment with respect to matters of significance.
If your primary duties are Professional, this exemption may apply to you. Employees covered by the professional exemption include those whose primary duty is the performance of work:
- Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
- Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Professionals include learned and creative professionals, teachers, doctors and lawyers.
ERISA and Disability Benefits
Each LTD policy is different. Generally, Long Term Disability covers a variety of illnesses – Many people think that long term disability only covers injuries that happen on the job. While on the job injuries may be covered, more than 95% of long term disability claims are estimated to be non work-related. For example, cancer, mental illness, chronic illnesses, neurological disorders, and certain degenerative diseases among many others may all be covered by your long term disability policy.
Your benefits may have stopped for a number of reasons. Some examples include:
- You no longer meet the definition of disabled after the insurance company sent you to an Independent Medical Examination (IME);
- The definition of disabled may have changed due to the length of time you were receiving benefits. After receiving benefits for a certain time period, often time, the definition of disabled will change from inability to perform your own occupation to the inability to perform any occupation.
If your benefits have stopped, contact us immediately to begin the process of reinstating your benefits.
First, contact us so we can determine where you are at in the claims process. The claims process can be needlessly complex and confusing. Importantly, the claims process likely has strict deadlines for appeal. If these deadlines are not met, you can lose your right to the benefits. In addition, the reasons for the denial may determine what the next step is. You may need to see a doctor of your own, or provide the insurance company with additional information. Let us help you navigate through claims procedure or help you prepare a lawsuit.
Severance Agreements and Severance Pay
Generally, you are not entitled to severance pay. However, if your employer has created a severance plan and you are an eligible participant in the plan than you may be entitled to severance benefits.
Each severance agreement, the amount of compensation, and the terms of the agreement are different. There is no “normal” severance pay, for example 1 week for every year worked. A severance agreement may be complex and the rights an individual gives up may not be clear. Before signing any severance agreement you should seek the advice of a Columbus employment lawyer.
Non-Compete Agreement and Employment Contracts
A non-compete agreement is a contract entered into between and employee and employer which promises the employee will not compete with his or her employer. Non-competes are generally limited in duration (time of agreement) and geographic scope (restricted area).
Generally, non-compete agreements are enforceable if:
- the employer demonstrates it has a legitimate business interest to protect;
- the restrictions are no greater than necessary to protect the employer’s business interest; and
- does not unnecessarily restrict an individual’s ability to earn a living.
Every case is unique. The law must balance between protecting a business’ interest and an individual’s ability to earn a living.
This is perhaps the most important question. However, there is no inform answer. The laws have varying time limits on when certain claims can be filed. Failure to file claims in the requisite time period can result in a loss of the claim or a loss of remedies. It is imperative you contact an employment lawyer immediately to determine what the time limitations are on your particular claim.
Absolutely. Mansell Law is centrally located in Columbus, Ohio. That does not mean, however, that Mansell Law is only a Columbus Employment law firm. Mansell Law has provided representation throughout the state including Toledo, Dayton, Marion, Cincinnati, Athens, South East Ohio, Southern Ohio, Mansfield, Cleveland, and Youngstown. Technology and electronic filings allow us to provide you with experienced employment representation regardless of where you are located in the Ohio.