More on Employment Law

For most of our history, the workplace remained almost entirely unregulated and employees enjoyed few, if any, rights other than the right to be paid for their work. Employees could be fired at the will of the employer for cause, no cause, or even for cause that is morally wrong.

Today, federal and state law offer employees at least limited protections against arbitrary discharge In addition, federal and state law provide employees a range of important guarantees on the job. A summary of a few important rights follows.

Employees cannot be fired because of their race, sex, age, national origin, religion, disability and other protected characteristics. In the District of Columbia, employees cannot be fired on the ground of sexual orientation.

Employees cannot be fired in retaliation for opposing unlawful employment practices or for assisting in the enforcement of an anti-discrimination statute. "Whistleblowers" are protected from retaliatory acts by their employer, including, of course, discharge. In most states, employees cannot be fired for a reason that offends an established public policy.

Employees represented by a union and covered by a collective bargaining agreement generally have the right not to be discharged without "just cause." Nonunion employees whose employers have given them assurances of job security also may have enforceable protections against arbitrary discharge.

Sexual Harassment

Harassment on the basis of sex violates Title VII and similar sex discrimination prohibitions in state statutes. "Harassment" may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. The conduct must be severe or pervasive enough to affect the terms and conditions of employment. Victims of sexual harassment may be entitled to significant compensatory and punitive damages.

Racial and National Origin Harassment

No less than sexual harassment, racial and national origin harassment violates Title VII and similar state statutes. Although isolated comments with racial overtones may not amount to "harassment," a steady stream of racially offensive remarks will generally be enough to establish a hostile work environment. As with sexual harassment, the legality of racially offensive conduct depends on its gravity and frequency.

Promotion and Demotion

In general, decisions concerning promotions and demotions are governed by the laws that affect other employment actions. Promotion and demotion decisions that are discriminatory on the basis of race, sex, national origin, disability or age (among other protected characteristics) are illegal. Employees alleging discrimination in promotion may offer evidence of their superior qualifications for the job at issue, their greater seniority, and perhaps the length of time they have served without a promotion. Employees who prove that they were discriminatorily denied a promotion may be entitled to receive the promotion together with back pay and perhaps other relief.

Overtime Compensation

Under the Fair Labor Standards Act, covered employees who work more than forty hours in a work week are entitled to overtime pay of one and a half times their regular hourly rate for every hour worked over 40 hours. If an employee works 30 hours one week and 50 hours the next, the employee generally must receive overtime compensation for the second week even though the number of hours worked during the two weeks averages only 40.

Several categories of employees, the most important of which are executive, administrative, and professional employees, are exempt from FLSA’s overtime pay provisions and not entitled to overtime under federal law. Exempt employees, however, may have overtime rights under state law. In addition, state law may give employees covered by the FLSA greater rights than they have under federal law.

Qualified Individuals with a Disability

The Americans With Disabilities Act protects qualified individuals with a disability, i.e., individuals who, with or without reasonable accommodation, can perform the essential functions of the job. Employers have several obligations under the ADA, including the obligation to reasonably accommodate a known physical or mental limitation of a qualified individual who is an applicant or an employee, unless the employer can prove that the accommodation would impose an undue hardship on its operations. Examples of "reasonable accommodation" include modifying work schedules or leave policies, reallocating nonessential job functions, acquiring or modifying equipment, and other similar accommodations.

Family and Medical Leave

Under the Family and Medical Leave Act, eligible employees may take unpaid leave of up to 12 weeks every year for one of the following reasons: (a) their own "serious health condition"; (b) the serious health condition of a spouse, child or parent; (c) the birth of a child, or (d) the placement of a child for adoption or foster care. Examples of "serious health conditions" include heart attacks, most cancers, strokes, back conditions, appendicitis, severe respiratory conditions, severe nervous disorders, injuries caused by severe accidents on or off the job, and complications of illnesses related to pregnancy, childbirth, and recovery from childbirth.

An eligible employee who takes leave under the FMLA is entitled to receive, while on unpaid leave, the health benefits he or she enjoyed on the job. At the end of the leave, the employee must be returned either to the position held before the leave or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.

Severance Pay

No federal, Maryland, District of Columbia, or Virginia statute requires employers to provide severance pay even to long-term employees who lose their jobs through no fault of their own. The only benefit that employers must by law provide eligible employees is unemployment compensation.

However, many employers voluntarily create severance plans and if they do, you may be entitled to benefits if you meet the eligibility requirements. Your employer may condition receipt of benefits on your signing a release in which you agree not to sue your employer. If you believe you have been fired illegally, you will need to consider very carefully whether the benefits you will receive are a fair exchange for your giving up the right to sue.

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