Employee Labor Law Explained

Employee labor law encompasses a wide range of employee rights, protections and responsibilities afforded under federal and state laws. These laws can create a myriad of legal obligations depending on the type of businesses and industry an employer may be in, as well as the types of employees an employer has working for them. Employers generally need to be aware of several key legal concepts.
Employment-at-Will. For most employers, unless you have a collective bargaining agreement (labor union) or an employment contract that provides otherwise, your employees are employed "at-will." At-will employment means that both the employer and the employee can terminate the employment relationship at any time, for any or no reason; and employers are typically not required to provide employees with any notice or reason.
Exemption Status. Most employees are entitled to be paid overtime wages when they work more than 40 hours in a workweek. However, the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and its California state law equivalent, California Labor Code § 510, exempt certain employees from this overtime requirement. These exempt employees do not have to be paid overtime wages when they work beyond 40 hours per workweek. And there is nothing stopping employers from paying exempt employees several hundred dollars a day even though they only work 30-35 hours per week. But there is a federal and state law minimum salary requirement that employees must meet in order to qualify as an overtime exempt employee.
Wage & Hour. Federal and state wage and hour laws generally obligate employers to timely pay their employees all wages earned for work performed and subject to certain maximum deductions (such as for income tax withholding, FICA, group health insurance, mandatory retirement plans, or disability insurance premiums). Employers cannot withhold earned wages for alleged cash shortages, customer charge backs, breakage, cost of tools and equipment, transportation and other alleged costs associated with doing business.
Unemployment Compensation. An employee discharged from his or her job may apply for unemployment compensation benefits. To be eligible for unemployment insurance (UI) benefits, an employee must have (1) been unemployed involuntarily; (2) accumulated sufficient wages within the base period; and (3) be ready, willing and able to work . The California Employment Development Department (EDD) administers the UI program in California – and distributes UI benefits to qualifying employees.
Workers’ Compensation. California is a "no-fault system" meaning that an employee injured on the job is generally entitled to workers’ compensation benefits without regard to any employer fault.
Anti-Discrimination Laws. Under both federal and state laws, it is unlawful for employers to discriminate against employees based on: Employers must be aware of their duty to engage in an interactive process with applicants/employees with disabilities and make a good faith effort (when reasonable) to "reasonably accommodate" an applicant or employee with a disability whenever an applicant or employee with a disability requests an accommodation and such accommodation does not cause an undue hardship to the employer. The following are examples of reasonable accommodation under the ADA: making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; part-time or modified work schedules; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations; providing readers and interpreters; and reassignment to a vacant position.
Employers are also prohibited from discriminating against employees based on religion (failing to accommodate religious practices), age (40 years of age or older), sex (including pregnancy), race, color, nationality, marital status, sexual orientation, medical condition, disabled veterans, and Vietnam era veterans.
Employee Labor Laws Under Federal and California Law There are several key labor laws that, at a minimum, all employers must be aware of and may be subject to: Federal Law EEO-1 Reporting. Most employers with 100 or more employees, or federal contractors with at least 50 employees must file an EEO-1 Report by March 31st each year. Employers with fewer than 100 employees and Federal contractors with fewer than 50 employees, have the option of participating in reporting the demographic workforce data to the EEOC. The purpose of the EEO-1 Report is to ensure that employers are not engaged in discrimination and to measure their mathematical job participation by gender, race and ethnicity.

When Should You Hire a Labor Law Attorney

Even when a host of state and federal, as well as local labor laws exist, there are still times when employment problems arise that demand the services of an experienced employee labor law attorney. In most cases, employees are generally advised to consult with an employment lawyer when two or more people at work experience discrimination. Discrimination can include being unfairly bullied or harassed, or being mistreated in any way because of your age, race, sex, medical condition, or sexual preference, pregnancy, or personal beliefs.
Consulting an attorney experienced in labor law is also advisable if you are wrongfully terminated, are not paid for your work or are not being given payment for time spent after hours. When you are not being compensated fairly, or at all, you may be able to sue for lost wages and/or commissions. Whether or not achieving your desired result requires legal action is something that your attorney will be able to help you determine.
Consulting an employment law attorney might also be necessary if you have been wrongfully terminated. There are two basic types of wrongful termination: Termination by the government, which can constitute religious discrimination. And termination under no-fault, meaning that one loses their job due to overall downsizing. Being terminated from work can also be an experience that leads some to suffer from PTSD. If you have been the victim of wrongful termination, or are thinking about asking for a resignation from work, speaking to an employment law attorney is advisable.
While the above are some of the more common reasons to consult labor and employment law attorney, there are many other situations where legal counsel could benefit you, including situations involving work place harassment, wage theft, and employment status.

How to Search for the Right Labor Law Attorney

One of the first things to consider when selecting a labor law attorney is their experience. There are many different areas of labor law and your attorney should have considerable experience in the particular area you may need help in. For example, if you’re not getting paid overtime, it’s better to select an attorney who has handled a considerable number of wage and hour lawsuits. A firm that has experience in all fields of labor law may be a better selection as they can handle multiple areas of law involving workplace issues.
Reputation is also something to consider when selecting an attorney. If you know someone who was previously a client of the attorney you are considering, you can ask them for recommendations. If you haven’t worked with them before, you can ask the firm for their references. Anyone who has had a satisfactory experience will be happy to provide you with the name and number of their attorney for you to confirm their reputation.
In addition to experience and reputation it is also important to consider what other areas of expertise the attorney has. An attorney who is up to date with the most recent changes in labor law will be the most beneficial to you. In addition, if they have other specialties like tax law, bankruptcy or injury claims, this can also be helpful as these areas of practice do occasionally overlap with labor law. This additional experience will help your attorney come up with a case strategy that works in your best interest.
Lastly, you may want to take a look at client reviews for the firm. Online reviews can be helpful and you can also check with groups like the Better Business Bureau or your local State Bar Association for client reviews. This can help you to better understand the level of service you should expect from the firm.

How to Prepare for Your Initial Consultation

At the initial consultation, the labor law attorney will want to know all the facts related to your case. He or she will ask all sorts of questions about what happened and how it made you feel, and they may be unexpected. He or she needs to know almost everything to be able to analyze your claim, so don’t be shy or embarrassed when discussing your situation. Be honest and forthcoming with the attorney so he or she will know what to expect going forward. When an attorney is not presented with all the facts and later finds out that you failed to mention something, it can lead to big problems.
Your initial meeting with your labor law attorney should cover a variety of basic facts about your situation, including:
Usually at this point, your labor law attorney should be able to tell you what your options are, and perhaps what would be the best course to take based on the circumstances of your unique case . He or she may advise you to try to go through the internal process to make a complaint to your employer, or to contact the EEOC or state agency to find out if you have a viable claim.
It’s always a good idea to know what you’re getting into before you meet your labor law attorney for the first time. You don’t want to wind up getting in way over your head without knowing it, especially if payments and fees are involved. Find out if the attorney will charge a retainer, and if so, how much that is.
What happens if we don’t win your case?
If you were wrongfully terminated, what kind of compensation might you be entitled to?
How long will my case take? What happens next?
What is the likelihood of us winning?
Clarify whether you are only getting a consultation or actually hiring the attorney, and what form of payment is acceptable. Be sure you understand how the process will work and whether or not you’re under any obligations before agreeing to anything.

Ways to Find Local Labor Law Attorneys

Businesses seeking the "right" employee labor law attorney often overlook local resources that can be instrumental in selecting an attorney. During our RLA seminars, we have pointed out to attendees that if you are searching for an employee labor law attorney, then go to your local chamber of commerce and ask them for a list. Chambers typically have attorney directories available that include many of the attorneys practicing in that particular geographic area. Chambers also deliver periodic updates to business owners, practitioners and others regarding employment law changes. Additionally, those with membership at the local chamber of commerce receive invitations to seminars and other business-related events throughout each year.
Local bar associations are another resource for finding reputable employee labor law practitioners. Local bar associations typically have an attorney directory with practice specialty areas. Contacting attorney referral services in your area, offered through local bar associations, can sometimes lead to a decent list of possible labor law counsel. For example, if you have a billing dispute with your Michigan attorney, you can contact the Michigan Bar Association for a list of Michigan billing dispute arbitrators. If you have a additional questions about your billing dispute, you can contact the Bar Association for further information.
Many chambers of commerce and bar associations also publish newsletters or have websites that can make for additional avenues of investigation online.
In addition to the local bar association, other local directories that can be used are the Martindale-Hubbell Legal Network and the Lawyers.com attorney review network, which organizes lawyers by location and practice specialty. In the past, others have pointed out to us that they have used these resources to find potential counsel, but these directories do not allow potential clients to know the terms of service offered by the attorney. As you know, asking the legal fees of each lawyer on the list can take significant time. The benefit of these directories is that they are extremely organized, and you can easily find contact information. Eventually, after contacting those on the list, you should have few choices remaining.
You can also use websites such as Justia, Findlaw or Lawyers.com, where you can search for labor law lawyers. Other search engines may be tailored toward just finding an attorney, such as FindLaw, which offers many directories by area. Keep in mind that every state is different when it comes to attorney websites, referral services and bar associations. Although many local bar associations have these kinds of resources, many others do not.
The point of all this is that the right employee labor law attorney is not someone who simply has a good website and some extensive marketing because there are a lot of lawyers with solid marketing plans. The right employment and labor lawyer is the one that has passion for the practice of employment law; fights for the clientʼs beliefs; has core values to live by; is reasonable in litigation and has the understanding of how a business looks at the world and how the organization fits into the big picture.

Benefits of Choosing a Nearby Labor Law Attorney

Hiring an attorney who is familiar with the local courts and judges can be invaluable. An attorney who spends most of their time in front of the same judges, and their clerks are more likely to have a sense of how that judge will rule. For example, our office is located in Skokie, Illinois. Common practice in Skokie may be that we would file the lawsuit in Cook County, Illinois. Filing in Cook County is usually more expensive than filing in the surrounding counties, which is another reason we typically file in Cook County. However, we found that when suing for unpaid wages, the Cook County judges expect an employee to provide a W-2 from the employer, as well as a copy of the employee’s personal tax return to support a claim for unpaid wages. Up until that point, everyone in Skokie and the surrounding counties were attempting to get clients that information. Many Cook County judges will not issue a judgment if a litigant needs to go to the IRS for a wage statement. This difference between generally accepted practice and the way Cook County actually acts can be an impediment to employees obtaining a judgment.
It is also important to know where employees work and live, as employees often try to obtain judgments in their home state or at least in the state they believe they will have the best chance of winning. As we saw in the Third Circuit’s opinion in Mullins v. State of New Jersey Department of Corrections, the laws of each state are different and the employee may, and often does, have to prove their wage in front of a jury . It should be noted that not all employment issues lead to a jury trial, and the employer won’t often be entitled to a jury trial; hence, claiming a jury trial might be worse than a quick answer from a judge. However, in Mullins, the employer lost because the jury was convinced the employer did not have the documentation it claimed to have, while the Third Circuit Court of Appeals decision allows for the possibility that the employer actually did have the employee’s check stubs. There’s no surprise here—all employees argued that they did not receive pay for all of their hours. This decision shows that while Mullins was a minor decision in the overall trend toward allowing plaintiffs to use the jury system to shut down employers utilizing independent contractors, it is an important one. This case points to an important question nonetheless: Would the Third Circuit have ruled differently if the parties were employed in Pennsylvania? The judge, after finding the employer was not credible that it had check stubs, might have issued a verdict in the employer’s favor. It was more reasonable to assume the employer hadn’t given employees their check stubs than it was to assume the employers had actually paid them.
Employers need to understand what can and cannot be put in a jury instruction. Not having a full grasp on the law can cause employers problems when a motion for a new trial is filed, or even an appeal. While the costs of employing an attorney locally may be slightly higher than out-of-state, the local attorney may be able to provide information regarding the way the local judiciary addresses cases like yours.