Employment Law

Protecting Employee Rights

Federal and state laws protect all kinds of workers, from undocumented immigrants forced to work for sub-minimum wage to white collar business professionals. In general laws that protect workers can be categorized as anti-discrimination or wage and hour.

Wage and Hour

The Fair Labor Standards Act (“FLSA”) provides for a minimum wage and requires the payment of overtime premiums at 1.5 an employee’s regular hourly rate for hours worked beyond 40 per week. Currently the regular minimum wage is $7.25. Federal law permits employers to pay a lower minimum wage, $2.13, to tipped employees but requires that the employer follow certain conditions to qualify for the “tip credit.” The FLSA also regulates how tips are paid and distributed and requires that all tipped employees receive a certain wage regardless of the amount of tips they receive. If business expenses or certain wage deductions effectively reduce an employee’s wages below these legal requirements, an employer may be in violation of the FLSA. The FLSA applies to workers in every industry and at many levels of responsibility, but certain categories of employees are partially or wholly exempt from FLSA protections, depending on their duties.

The fact that an employer classifies an employee as “exempt,” “salary basis” or “independent contractor” does not mean that the employee is not entitled to FLSA and state law protections. Employers have an incentive to classify employees as exempt to avoid paying minimum wage, overtime, and sometimes employment taxes. However, the law is clear that whether an employee is FLSA exempt or an independent contractor is a highly fact-specific inquiry depending on the employee’s duties and relationship to the employer.

In addition to federal laws, many states have extended protection even further for employees. Almost half the states, including New York, California, Colorado, and Florida, have higher minimum wage requirements, and several states do not permit employers of tipped employees to pay a lower wage. Some states, including New York, have strict rules about deductions that may be taken from wages.

Wage and hour laws also prescribe rules for the payment of commissions and prevailing wages. For more information on these topics, please see the links on this page.

Discrimination

Federal law prohibits discrimination in employment based on several characteristics, including age, disability, pregnancy, race or national origin, sex and religion. Several states and cities have broader discrimination laws to protect against discrimination on the basis of sexual orientation, and gender identity/expression. One type of discrimination that is generating increased discussion is appearance-based discrimination. Few laws prohibit discrimination on the basis of appearance right now, although appearance is closely linked to other protected categories such as race and age.

Sexual harassment is closely linked to sex discrimination. There are two basic types of sexual harassment: “quid pro quo,” such an employer demanding sex in return for a promotion and “hostile work environment.” Although sexual harassment most frequently occurs between a male boss and a female subordinate, sexual harassment may occur between a female boss and a male subordinate or between individuals of the same sex. The attorneys at Pelton Graham LLC have represented male and female victims of sexual harassment in cases involving opposite-sex and same-sex harassment.

Most states are considered “at-will” employment states, meaning that an employee can be fired for any reason or no specified reason at all except discrimination based on the protected categories or retaliation for certain actions protected by law, such as complaining about wage and hour violations or discrimination or if there is a contract or collective bargaining agreement in place between the employee and employer that the employer has violated.

Discrimination and sexual harassment are difficult to provide. Victims of discrimination or harassment should document each episode as extensively as possible, keep any relevant correspondence or communications, log information about each episode in a journal, and collect any other evidence of the problems.

For more information on discrimination and sexual harassment, please see the links on this page.