What To Expect During Your Employment Law Dispute – Part 2: Filing A Lawsuit

Welcome to Part 2 of our six part series on “What to Expect During Your Employment Law Dispute.” Assuming you have received your “golden ticket” from the EEOC, discussed in Part 1, (and remember that some claims do not require you to file with the EEOC such as FMLA claims, wage claims/overtime issues, and breach of contract cases) it is now time to file your official lawsuit and get things started.  Remember, you only have 90 days to file a lawsuit if you received a Notice of Right to Sue from the EEOC.  Those 90 days will pass quickly and you do not want to wait until the last minute.  If you already have an employment law attorney, great!  If you don’t, it is time to start calling law firms to see if someone is willing to represent you in filing your case.  If you cannot find a lawyer to represent you, you are also allowed to file your own lawsuit pro se (the legal word for representing yourself without an attorney).

In order to officially file your lawsuit, you must file a Summons and Complaint in either South Carolina state or federal court.  You can call the Clerk of Court’s office for assistance if you do not have an attorney.  They will help you fill out the appropriate paperwork.  The filing fee in state court is $150.00 and the filing fee in federal court is $400.00.  If you are represented, your attorney can advise you on the differences between filing in state or federal court.  Generally, if you file in state court the employer will “remove” (or transfer) the case to federal court and you will end up litigating in federal court anyway.  After you file the case in the Clerk of Court’s office, you will have to “serve” the lawsuit on the employer.  If you have an attorney, your attorney will handle this for you.  If you do not have an attorney, the Clerk of Court’s office will instruct you how to serve the documents on your employer.

After your employer receives the Summons and Complaint, it will have 21 days (in federal court) or 30 days (in state court) to file an Answer.  Attorneys will sometimes grant each other extensions if requested timely.  An Answer is a legal document where the employer generally denies most of the allegations and files its appropriate defenses to your claims.  Employers also have the option to file a Motion to Dismiss instead of filing an Answer.  If an employer files a Motion to Dismiss, you will have to defend against the motion.  After the employer files its Answer or the Motion to Dismiss is resolved, the Court will generally enter a Scheduling Order.  The Scheduling Order is a list of due dates for certain elements of your case that the lawyers must comply with.  Your lawyer and the employer’s lawyer will have a telephone conference to discuss the due dates and other elements of your case.  Thereafter, your case will enter the “Discovery” phase, which will be discussed in Part 3 of the blog series.  Always contact a South Carolina employment lawyer to assist you with your legal questions.

Upcoming Series: What To Expect During Your Employment Law Dispute – Part 1: EEOC

For the next several series of blog posts, I am going to be discussing what you should expect to happen after you hire a lawyer for your employment law dispute (excluding federal employees).  The series will be divided into six parts:

Part 1:  EEOC Proceedings

Part 2:  Filing a Lawsuit

Part 3:  The Discovery Process

Part 4:  Summary Judgment- The “Mini-Trial”

Part 5:  Mediation and Alternative Dispute Resolution

Part 6:  Trial

Today we will be talking about the EEOC process.  Most employment law disputes (with some exceptions such FMLA suits, pay/overtime suits, Equal Pay Act suits, and state based claims for breach of contract, violation of public policy, or state torts) must be investigated by the EEOC before you are even allowed to file a lawsuit in court.  If you attempt to file a lawsuit without going through the EEOC first, your lawsuit will likely be dismissed for lack of jurisdiction.  The EEOC (Equal Employment Opportunity Commission) is a federal agency tasked with investigating complaints of workplace discrimination based on race, color, national origin, religion, sex (including pregnancy discrimination), age, disability, genetic information, and retaliation for reporting/participating/opposing a discriminatory practice.  Assuming your employer has a minimum of 15 employees (or 20 for age complaints) you must make a complaint to the EEOC within 180-300 days of the discriminatory action for your complaint to be timely.  If you wait beyond this time period, your complaint can be dismissed for untimeliness.  It is important to take prompt action if you feel you are the subject of workplace discrimination or retaliation based on one of the above criteria.

The EEOC has a very comprehensive website that explains the process in detail and provides a wealth of information on filing a charge.  You can click here for information on how to file a charge of discrimination or retaliation with the EEOC.

You can call your local EEOC office to get more information or to get the complaint process started on the telephone.  Some lawyers will also assist you with the EEOC process if they agree to represent you.  Once you have filed your initial complaint and the EEOC opens a file for your charge, your employer will be notified that you have filed a charge and will be given a chance to file their “Position Statement.”  The employer’s Position Statement is their place to tell the EEOC why they believe the way they treated you was not unlawful.  Employees are not typically given a copy of the Position Statement until after the investigation is complete and only after a Freedom of Information Act (“FOIA”) request is sent in.  If an attorney is representing you, he or she will likely send a FOIA request on your behalf after the investigation is complete.

After the employer files its “Position Statement,” the EEOC will send a notice to both sides inviting them to participate in an EEOC mediation (there is no mediator charge for an EEOC mediation).  The EEOC mediation is not required but can be beneficial in certain circumstances.  If either party chooses not to participate, then no mediation will occur.  If both parties agree to mediation, the mediation will be scheduled with an EEOC mediator.  The EEOC mediator is typically a person employed by the EEOC that may or may not be an attorney.  They will set up a time to meet (typically a 1/2 day) in a neutral location and all parties will meet at the prescribed time.  Normally, the mediation will start with everyone in the same room where the attorneys will give a brief opening statement.  After opening statements, the parties will be separated into different rooms and the mediator will shuttle back and forth between the rooms to see if a resolution can be achieved.  If the mediation is successful, the case ends.

If mediation is not successful, your file will be returned to the EEOC investigator for further investigation.  The EEOC investigator will normally call the employee (and his or her attorney if they have one) and conduct a conference call to get some more facts.  After the EEOC concludes the investigation, they will typically issue a “finding.”  The EEOC “finding” could include a finding of discrimination or of non-discrimination. Either way, the “finding” will be accompanied by a “Notice of Right to Sue.”  The Notice of Right to Sue will give no more than 90 days to file your lawsuit in court.  Your Notice of Right to Sue is the golden ticket to bring your case in court.  Without your golden ticket, you cannot file a lawsuit.  It is important that if you do not have an attorney during the EEOC process but plan to hire one to file a lawsuit in court, you start calling employment lawyers immediately after receiving your Notice of Right to Sue.  It can take some time to find an employment law attorney that can help you with your case and get your lawsuit filed within the 90 day timeframe.

The entire EEOC process can last about one year if mediation is not successful.  The EEOC has a large backlog to get through and attorneys cannot speed the process up.  In Part Two of this blog series, I will discuss what happens after you have your Notice of Right to Sue and move forward to filing your lawsuit in federal or state court.

How To Hire a Law Firm For your Employment Law Dispute

At Falls Legal we receive multiple telephone calls every day from employees with questions about various types of employment law issues.  Generally these calls are because the employee is experiencing a problem at work.  I find that preparing potential clients for the types of information we need to know and questions that they should ask is beneficial for everyone.  So here goes…..

1)  Don’t use legal terms of art such as “hostile work environment,” “wrongful termination,” or “retaliation.”

Hardly a day goes by where I don’t receive a telephone call from someone saying that they have been “wrongfully terminated.”  “Wrongful termination,” like “hostile work environment,” and “retaliation” are legal terms with very specific definitions associated with each.  Only after you have spoken with a lawyer, will you be able to determine whether your case falls into one of these categories.  For some previous blog posts  regarding hostile work environment, retaliation, and wrongful termination, click here.

2)  Call Multiple Lawyers

I always tell clients to call multiple lawyers before they select the right firm.  Sometimes you should call other lawyers to see if they will handle your case for a different type of fee (contingency, hourly, etc.)  Other times you should call different attorneys to see if they disagree with the analysis and have other theories on your case.  Sometimes you should call other lawyers just because you did not get a good feel from the first lawyer’s office you called. In South Carolina, we have a handful of lawyers that represent employees exclusively.  We are happy to make referrals to other employee representation attorneys in the area if we cannot handle your case.

3)  Be Honest

No case is perfect and we understand that.  In order for us to fully assess your case, we need to know what the employer is going to say.  In fact, I always ask potential clients “what is the employer going to say their reasoning for the action is?”  Many times, the employee will know or have a good idea.  If you have had performance issues, suspensions, or are presently on a performance plan, I need to know that.  I cannot protect you from things I do not know.  If you are honest and acknowledge the weaknesses in your case, we can come up with strategies to help you combat these issues.  For example, if you are having performance issues at work but other employees that are not in your protected category are also having these issues and being treated more favorably, we can discuss how that might impact your case.

4)  Tell Us About Your Proof

We need to know about any paperwork, witnesses, or other evidence you have that supports your claim.  If you have a contract or Employee Handbook, we will need to see that.  If you have emails that are relevant, we will need these as well.  We will also need to know the names of potential witnesses and whether they are willing to cooperate or speak with us.

5)  Understand That The Process Is Slow

Employment law cases are special because, generally, you must first file a complaint with the EEOC before you can file a lawsuit in open court.  There are strict timeframes for doing so.  The EEOC process can take up to a year before you are even able to file in court.  If your case proceeds to court after the EEOC investigation is complete, that can take 1-2 more years.  There are some cases where the employer is willing to discuss an early resolution to the case but those cases are rare exceptions.

In sum, if you are having an employment related issue at work, you should proactively reach out to multiple South Carolina employment law attorneys to determine whether it is beneficial to proceed with some type of claim.  When you do so, be honest, lay out the facts in a concise manner, tell us what the employer is going to say, and give us a synopsis of your proof.  Also, understand that not all unfair treatment at work is legally actionable.  There are many times in which an employer is treating an employee in an unfair manner but it is not necessarily illegal treatment.

Supreme Court to Determine whether Pregnant Employees are Entitled to Reasonable Accommodations under the Pregnancy Discrimination Act

The United States Supreme Court is expected to hear oral arguments on the case of Young v. UPS on December 3rd. The case involves the question of whether pregnant employees are entitled to reasonable accommodations under the Pregnancy Discrimination Act similar to those that covered employers must provide to disabled employees under the Americans with Disabilities Act (“ADA”).

The Pregnancy Discrimination Act prohibits employers with fifteen or more employees from discriminating against employees on the basis of pregnancy. Similarly, the ADA prohibits employers with fifteen or more employees from discriminating against employees because of an actual or perceived disability. The ADA also requires employers to take affirmative steps to assist disabled employees by requiring employers to provide them with a reasonable accommodation in some situations. A reasonable accommodation is intended to make a disabled employee more easily do her job despite a disability she may have. Examples include light duty work, flexible work schedules or work sites, allowing employees to work remotely, or providing an employee modified job duties.

While there is no question that the ADA requires employers to provide reasonable accommodations to disabled employees where appropriate, the Pregnancy Discrimination Act does not directly address the issue of accommodations to pregnant workers. The issue will possibly be resolved by the Supreme Court next month in Young v. UPS. The case has received a considerable amount of attention from the media and special interest groups alike since the Supreme Court announced its upcoming review.

New Website Launch

Law Offices of J. Scott Falls, LLC is pleased to announce it has reorganized as Falls Legal, LLC An Employment Law Firm.  We have also relocated to 245 Seven Farms Dr. Suite 250 Charleston, SC 29492.  Our new location on Daniel Island allows us to more easily service the Tri-County area.  We are handling employment law matters on behalf of employees throughout the State of South Carolina.

Please check out our newly redesigned website at http://www.falls-legal.com.

When a Hostile Work Environment is not Really a “Hostile Work Environment”

In employment law, the phrase “hostile work environment” is an often misunderstood concept. We often receive calls from people claiming that their boss is a true jerk who screams at everyone and has everyone at work constantly on edge because they never know when the next yelling fit will occur. A screaming boss does sound pretty “hostile” in the normal sense of the term and, if it is happening in the workplace, then it must be a “hostile work environment,” right? More often than not, the answer is no and these people are quite disappointed to hear that their boss has not broken any employment laws.

A hostile work environment refers to a situation where an employee is subjected to harassment in the workplace and may not even be able to do his job because of the offensive, intimidating, or oppressive atmosphere created by the harasser. In order to be a hostile work environment, the harassment must be due, at least in part, to some protected characteristic of the person being harassed, such as age, disability, race, gender, or pregnancy. If the boss  is subjecting an employee to less than ideal treatment simply because he is, for example, a Red Sox fan and the boss hates Red Sox fans, then this would not equate to a hostile work environment because the conduct is not based upon a characteristic or trait protected by federal employment laws. Even if some action is possibly based upon an employee’s being a member of a protected class, the conduct must still be “severe or pervasive” enough to create a hostile work environment. The United States Supreme Court has made it clear that Title VII, which prohibits race, ethnic, gender, and religious discrimination, is “not a general civility code.” As such, federal laws relating to the workplace do not prohibit offhand comments, casual teasing, or isolated incidents that are not serious.

Hostile work environments exist where a boss mocks or makes fun of an employee with a disability or a supervisor who tells crude sexist or racist jokes. If such actions are “severe or pervasive” enough then they can constitute a hostile work environment. If the boss, however, is an “equal opportunity jerk” who treats pretty much everyone at work horribly, regardless of whether they are a member of a protected class or not, then he probably is not doing anything illegal or creating a hostile work environment. If you feel you are being subjected to a hostile work environment, then you should speak with an employment law attorney.

Overtime Exemption Laws may get an Overhaul

As you may have heard, President Obama has directed the Department of Labor to “modernize and streamline” overtime exemptions. The directive aims to simplify and minimize exemptions that prevent employees from receiving overtime pay under the Fair Labor Standards Act. Some of the primary areas addressed are exemptions relating to white collar employees, home health care workers, and computer professionals, to name a few. The proposed changes could mean that many American employees become entitled to overtime pay, even if they are not currently receiving it.

The FLSA requires that all non-exempt employees be paid one and one half times their normal rate of pay for every hour over forty hours worked per workweek. President Obama’s proposed changes could affect many American employees who work significant overtime hours. More to come.

If you have questions about your entitlement to overtime pay in South Carolina, you should consult a South Carolina employment lawyer to discuss.