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DISCRIMINATION & FAIR LABOR STANDARDS

DISCRIMINATION

It is illegal to discriminate in hiring, promotions, termination (known as wrongful termination) or other aspects of employment on the basis of a person's race, gender, national origin, religion, disability, or age, or to retaliate against an individual for opposing such practices, or consulting an attorney or the United States Equal Employment Opportunity Commission (EEOC) or equivalent state entity, if any.

Employment discrimination and wrongful termination claims can be difficult because the employee has to prove that the reason he/she was fired (wrongful termination), not hired, not promoted, or otherwise harassed is because of his (or her) "protected classification". By protected classification, we mean a person's gender (male or female), race (black or white), national origin (Hispanic, Asian, African, or having parents or grandparents from anywhere outside of the United States), age (over 40), or disability.

In the case of religious discrimination, and disability discrimination, it may also be illegal for an employer to deny reasonable accommodations to an employee. For example, absent extenuating circumstances, an employer cannot require a person to violate his or her religious beliefs such as working on the Sabbath, eating a forbidden food, or using alcohol if doing so is against the person's religious principles. Instead, the employer must make a reasonable accommodation enabling the employee to do his job without violating his religion. Similarly, an employer must accommodate the disabilities of its employees if those disabilities meet certain standards. If a company terminates an employee without considering an accommodation, this too can be wrongful termination.

What is Discrimination?
Discrimination lawyers, particularly employment discrimination lawyers, often find themselves in the difficult position of having to explain the difference between reality and legality. By its definition, discrimination simply means the process of choosing between two alternatives. But discrimination law or more appropriately anti-discrimination law addresses the act of making choices based upon a person's race, gender, religion, national origin (ethnicity), disability, or age (over 40) or other protected class. There are also some laws that prohibit discrimination based upon a person's sexual orientation. These are commonly wrongful termination claims. Wrongful termination is particularly serious because a person can lose an entire income.

Most states recognize the doctrine of "at will" employment. At will employment simply means that an employee works for a company only so long as both employee and the company want the relationship. In short, the employee can no more make the company give him a job than the company can make the employee work. You can quit any time you want to quit and a company can fire you any time it no longer wants you working for it. In fact, neither one of you needs a reason to end the relationship. (Thus, most terminations are not a wrongful termination.) Employment discrimination, wrongful termination and retaliation are exceptions to at will employment.

The Laws
There are many laws that address employment discrimination and wrongful termination including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and others. Some of these laws require that the employer have at least 15 employees; and the total number of employees can effect the amount of money that can be recovered for discrimination or wrongful termination. (In promotion and wrongful termination cases, there is no limit to the amount of back pay that can be collected.) In addition, these laws have different statutes of limitations. If you have an employment discrimination or wrongful termination claim you should contact an employment lawyer as soon as possible.

Proving Discrimination
Employment discrimination and wrongful termination (and retaliation) is proved by the "direct method" or the "indirect method". The direct method usually involves an admission. "You don't belong in a man's job, you're fired" is direct proof. "Why did they hire a woman to do this job?" when the wrongful termination or discrimination happens months or even years later will not be direct proof. A comment by someone other than the person who committed the discrimination will usually not be direct evidence. Direct proof cases are easier (although it helps if someone other than the plaintiff heard the comment).

The indirect method of proof is more common and it takes place in three steps. First, the employee must prove that he is qualified for the promotion (or in a wrongful termination case, the job) and is of a different race, sex, ethnicity, religion, or other protected classification than people who were treated better (i.e. did not get fired, or did get a promotion.) Next, the company must give another reason for different treatment (usually poor performance, but it could be almost anything.) Then, the employee must prove that the company's reason(s) was a lie. Evaluations are often helpful, particularly if the person who was treated better has weaker evaluations. (This is particularly important in wrongful termination cases.) It is always important to have good performance and attendance, but even more important when you believe you are facing employment discrimination or are afraid of retaliation (particularly wrongful termination) because you might give the company another reason to fire you.

Proving discrimination and wrongful termination is a delicate task. Your lawyer must be familiar with the intricacies of the laws, the statutes of limitation, the physical and emotional effects of litigation on her clients, the interaction of various laws, and the rules of procedure in your state. If you are concerned about discrimination, wrongful termination or retaliation, you need to consult one of our employment lawyers.

FAIR LABOR STANDARDS

The Fair Labor Standards Act, (FLSA), is a federal law dating back over half a century which establishes certain minimum requirements for employees' hours of work, wages, premium overtime and payroll records.

The FLSA, identifies two types of employees: non-exempt employees and exempt employees:

Non-exempt employees are employees who, based on the duties performed and the manner of compensation, are required to account for time worked and sick leave, vacation, and other leave on an hourly and fractional hourly basis. The FLSA requires that these employees be paid overtime at the premium (time-and-one-half) for actual time worked in excess of 40 hours per week.

Exempt employees are employees who, based on the duties performed and the manner of compensation, are exempt from the FLSA minimum wage and overtime provisions. Exempt employees are paid an established monthly or annual salary and are expected to fulfill the duties of their positions regardless of the hours worked. They do not receive premium overtime, straight overtime or compensatory time for working more than 40 hours in a work week.

 

 

VOYLES MILHOLLIN LAW FIRM
600 Village Trace, Suite 200
Marietta, Georgia 39967
ph 770-421-8883
f 770-421-8884

 

 

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