Are There Alternatives To Filing An Employment Lawsuit?
There are absolutely alternatives to filing an employment lawsuit. Anyone who files a suit without taking the time to educate themselves about the law and the litigation process and to consider the alternatives is going about it all wrong. The best alternative is often to avoid being put in a situation where you would need to file an employment lawsuit. But it takes understanding of the laws and the right strategic and diplomatic approach to do this successfully. So, the sooner a person gets the right advice, the better off they are.
Can You Give Some Examples of These Alternatives?
Sure. The list of alternatives is always going to depend on the situation and circumstances of the employer and employee involved. The most common alternative to consider is to try to fix the problem. For example, an employee might have a request for medical leave of absence denied. Before the issue escalates into a termination of employment and/or litigation, the employee should determine whether there was a problem with the request. Perhaps the statute does not provide for protected leave in that situation. Sometimes a leave request in one month is not protected, but a request for leave in the next month would be. But the employer will not always explain that. Many times, the problem appears to be a lack of clear communication between the employee, the employee’s doctor, and the company. So, to fix this problem, the employee may need to change the leave request so that it does not ask the employer to do more than legally required. Or, perhaps the solution is in providing more detailed information from the physician. Sometimes, by diplomatically describing the relevant facts and pointing out legal concerns with the employer’s actions, an employee can convince the employer to change its position.
This approach can also be used by employees who have already been terminated. Sometimes, people get fired because the employer made the decision without having all the facts. Sometimes the person who does the firing is acting on his own, without the support of management. Sometimes employers simply do not realize they are breaking the law. An employee who was terminated based on false or incomplete information may be able to informally appeal to a higher level of management to have them review the decision. Even in the case of what appears to be a clear violation, an employee may be better served in the long run by diplomatically pointing out the violation and giving the employer a chance to fix things before filing suit and trying to find a new job. Courts are less likely to believe an employer’s plea of “honest mistake” if the employer passed up a clear opportunity to correct the problem.
In cases where it is not possible to undo the problem, an employee and employer may be able to resolve their differences quickly and privately with a confidential severance agreement. This way, both sides can avoid litigation and move on with their business. In these contracts, the employee will typically promise not to sue the employer in exchange for the employer promising to pay money to the employee. Other items covered often include confidentiality and non-disparagement provisions, dictating how the employer will respond to reference check requests, and continued payment of health insurance premiums.
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What Are The Different Types Of Cases Under Employment Law?
Several Federal and State statutes place limitations on an employer’s right to hire or fire, or require the employer to meet certain minimum standards in dealing with employees.
Employees facing medical challenges that impact their ability to work could be protected by the Family Medical Leave Act or the Americans with Disabilities Act. These are both kind of technical laws that protect employees when medical challenges are impacting their ability to work. The FMLA requires certain employers to give employees up to 12 weeks of unpaid leave from work per year when the employee cannot work because of the employee’s or an immediate family member’s serious health condition. It also applies to provide parents with leave for pregnancy and taking care of newborn and newly adopted children. But it does not apply to all employers and employees, there are notice and documentation requirements to fulfill, and not all situations are covered. The FMLA prohibits employers from interfering with employees attempting to use FMLA leave and from retaliating against employees because they utilize FMLA leave.
The Americans with Disabilities Act requires some employers to make reasonable accommodations for employees with disabilities to allow them to perform the essential function of their jobs. It prohibits certain medical inquiries to employees and applicants, and it outlaws discrimination against employees because of their disabilities. Again, the details can be complicated and it often takes an attorney to determine what the law requires.
There are also a lot of different laws against various types of whistleblower retaliation. That is a whole topic in and of itself, but there are a lot of laws that give employees protection for speaking out against or opposing illegal acts by their employers. Again, this is a very precise area and there are a lot of tricks and traps for the whistleblower. Any employee who thinks their employer is doing something illegal, really needs to take the time to gather the facts, understand the law, and talk to an attorney before they say anything to anyone because different types of illegal acts have different types of whistleblower protections. For example, in some situations an internal complaint to the boss is protected whistle-blowing, but in other situations internal complaints are not legally protected and can lead to legal termination. So, it’s important for potential whistleblowers to understand the legal details that apply to the situation before taking action.
I also represent employers and employees in a variety of lawsuits over pay issues. There are compensation contract disputes, such as “you were supposed to pay me a certain bonus for meeting defined performance criteria,” or just plain failure to pay wages owed like, “I left the company and never got my final check.” There are cases over overtime and minimum wage under the Fair Labor Standards Act (FLSA). We have a lot of restaurants here and there are a lot of overtime and minimum wage issues under the FLSA dealing with tipped employees. Whenever there is a question about pay, it makes sense to learn the applicable law rather than let a problem escalate.
There are many cases about sexual harassment, racial harassment, and other forms of illegal discrimination in employment. I represent employers and employees in court and in a lot of consulting work to help people respond to these types of situations. Employees facing discrimination, sexual harassment, racial harassment, or religious harassment in the workplace really need to take the right steps to inform the company of the problem and give the company an opportunity to respond. There are exceptions to every rule and that’s why it’s important to get legal advice. The main point is, however, don’t just wait around to be a victim. When you see a problem, take the time, and make the effort to understand your rights so that you can avoid being a victim.
Employers need to make sure they know what discrimination laws apply to their companies and to put the right policies and procedures in place to deal with these situations. Not having the right harassment policies ahead of time can make defending a lawsuit much harder for employers – even if they try to do the right thing in response to a harassment complaint. I work closely with employers to help make sure the policies and procedures are correct and to help investigate and respond to employee complaints. For employers, there are usually ways to limit the amount of potential liability even when it is clear that someone acted inappropriately.
There is also litigation under the National Labor Relations Act over retaliation for concerted protected activity involving potential unionizing or even informal efforts among coworkers to band together to address workplace situations. I have seen several cases like this where the employer did not even realize that retaliating against employees engaged in concerted protected activity was illegal.
So, there are all sorts of employment laws that can be broken and I’ve dealt with litigation under all sorts of them. And those are just the most common types of cases. There are several others that are too rare to mention.
What Does Employment At Will Actually Mean?
“Employment at will” means that the employee can be terminated at any time with or without notice and for any reason. That is the general rule in Louisiana and in most states. However, there are several exceptions to “Employment At Will.” We talked about many of those in terms of different whistleblower statutes and laws that prohibit discrimination in employment based on race, sex, religion and other protected categories. Claims under these statutes are exceptions to the general rule. Also, there are a few situations where employment at will does not apply. First, if an employee has a contract that promises employment for a specific term or that contains some other limit on the employer’s right to terminate you at will, such as a union collective bargaining agreement, the employment at will rule does not apply. Second, many government employee have civil service rights or constitutional law protections that act to limit the government’s right to terminate at will. If an employee does not fall into one of those categories, the employee is probably an “At Will Employee.”
For more information on Alternatives To Employment Lawsuits, go to the lists of Employee and Employer Services and choose from the menu of options or give Alan Kansas a call at (504) 313-4080 today.
Get your questions answered. Call Now at
(504) 313-4080. I will get back to you soon.