Just Say “NO”— To Your Employer!

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Employees often do not understand when it is okay to say “NO” to an employer and when it is not.  Sometimes, you just have to do things that you do not want to do, and other times you do not.  For example, sometimes you will have to perform job duties that you would rather not do because someone else called in sick or extra help is needed.  I would suggest that you don’t say “no” in those situations because you might get fired for insubordination.  Likewise, if you have to move to a different cubicle or office that you don’t like as much, you should not say “no.”  Other times, you can and should say “No.”   Prospective clients tell me all the time that “my employer made me do it.”  Hogwash!  Did they hold a gun to your head and insist that you do something?  I highly doubt it!  So, lets go through a list of when it is okay to say “no.”

1)  You have just been terminated and HR/your boss is insisting you sign paperwork before you go:  You have just been terminated!  Why would you sign anything the company is asking you to sign?  You no longer have any responsibility to these people.  Often times this “paperwork” will include waivers, releases of claims, acknowledgment that you did something wrong, etc. So what should you say? After you have been terminated, politely ask if you may collect your things and leave and if they give you paperwork, tell them you will take it home with you and have your attorney review it and be back in touch.  If they demand you sign it that very day before leaving, politely say that you will not sign anything without reviewing it with your attorney first and if that is not permissible, then you simply will not be signing the paperwork–period.  You would be shocked at how many times prospective clients call me after having signed all kinds of things waiving their rights, accepting insufficient severance, and sometimes admitting to things that they did not even do!  Don’t let that be you.

2)  You have been offered a severance package but only if you sign TODAY!  This goes along somewhat with Number 1.  If you have been offered a severance package, you should ALWAYS have an attorney review it before you accept it.  Even if they tell you it will be off the table tomorrow–it will still be available if they want rid of you (and your potential claims).  You will do more harm to yourself by signing now.

3)  Your boss is FORCING you to quit.  Again, hogwash!  Did they hold a gun to your head and demand you resign?  No one can make you quit.  Your employer, however, would love it if you did because then you probably cannot collect unemployment against them. Never let someone “force” you to quit—make them fire you!  Continue to go into work as scheduled until you are informed you have been terminated.  If they tell you that you will be terminated if you do not voluntarily resign, then you should tell them that you have no intentions of resigning and they will have to fire you if they no longer want you to work there.  Do not quit!

4)  You are offered a “promotion” but no longer entitled to overtime so your “promotion” is actually a demotion.  Again, this happens all of the time.  You do NOT have to accept a “promotion.”  Sometimes, promotions also demand way more hours for which you are NOT entitled to overtime.  This often happens when folks are promoted to management positions that are exempt from overtime.  Say “no” to the promotion if you do not want the long hours or think you will make less in the long run.

5)  Admission of a performance problem.   Often times, employers will attempt to document alleged performance deficiencies by having you sign a document that is sometimes called a “Personal Action Plan”/”Performance Action Plan”/”Corrective Action Plan.”  These documents are nothing more than an attempt to lay the groundwork for your forthcoming termination.  Employers love these because they come in handy for them in contesting your application for unemployment benefits or if you later file a lawsuit.  Employers love to tout these documents as evidence that you were not doing your job well before they terminated you.  So what should do if you are asked to sign one of these?  In every instance, you should tell them that you are going to have to review it with your attorney before signing.  Do not say “no” automatically, but ask to review it with your attorney first.  Also know, it is time for you to start documenting EVERYTHING that happens at work because more often than not, that termination is right around the corner.  Image

Promotion or Pay Cut- You Decide!

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I get calls from potential clients all the time about situations where they THINK they are being offered a promotion but the sneaky employer is actually disguising the promotion when it is in in fact, a pay cut.  Typically, I see this occur when an employee who is paid hourly but is also receiving overtime pay for hours over 40 is offered a “promotion” to another position that is salary BUT is exempt (not qualified for) from overtime.  Employers will often sneak some language into the new paperwork stating that the new position is exempt from overtime and you may miss this until after you have accepted the position.  The end result is that your pay has been cut and you didn’t even know it!  That is where state law comes into play.  The South Carolina Payment of Wages Act (“SCPOWA”) is one of my very favorite laws.  I have written extensively about it in the past. Employers screw up applying this law all the time.  Additionally, employers based out of other states but still doing business in South Carolina (and there are tons) often do not even know about it when they violate state law.  I have argued the SCPOWA in both South Carolina state and federal courts and it often provides you great leverage in your case.

SCPOWA does all kinds of things.  It covers situations where you are not being paid by your employer or where you are not issued your final paycheck after you quit or are terminated.  It also has all kinds of notification rules and record keeping requirements for employers.  The relevant part of the statute in the situation I am discussing today is the requirement that employers give you notification in WRITING at least SEVEN calendar days BEFORE the change in pay becomes effective, if it is going to decrease your salary.  Now, the loophole in the statute is that it also says that “this section does NOT apply to wage increases.”  Employers always argue that because it is a wage INCREASE (at least in your base pay without accounting for overtime) that they did NOT have to give you 7 days written prior notice.  Nice try!  I often create detailed graphs, spreadsheets, and charts showing how the alleged increase was actually a decrease (and therefore, triggering the written notification requirements), especially when you account for the overtime issue.

So what can you do if you are offered a promotion?  Before jumping up and down with excitement, sit down for at least a day and think about it.  Examine whether you were getting overtime before and whether you will still be permitted overtime with the new promotion.  If the answer is “no” then you need to crunch numbers to make sure that with the loss of overtime, you will still be making more money.  You can always turn the “promotion” down!

“What Is My Case Really Worth?” Part Three- ADEA (“Age Discrimination in Employment Act”) Cases

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Today is my third and final posting in the three-part series “What Is My Case Really Worth?”  For my final posting in this series, I will be focusing on employment age discrimination cases under the ADEA.

The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment.  As we know, you must file a charge of age discrimination with the EEOC prior to bringing a lawsuit.  Also, in order to be covered under the ADEA, your employer/prospective employer must employ 20 or more employees (slightly different from the requirement for 15 employees under Title VII race, gender, national origin, etc. claims.)  Note that it is not illegal for an employer to favor an older worker over a younger worker, even when the younger worker is over 40 years old.  The ADEA does NOT protect workers under the age of 40.  Also, employers can require certain age limits if they have a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”  Examples of this exclusion would include hiring a young actor to play a young character in a movie or when public safety is at sake (pilots, bus drivers, etc.)  Assuming that you have a valid ADEA claim, we will discuss the damages you can recover in court.

BACK PAY

Like other types of employment cases, back pay is the most often awarded damage in ADEA cases.  There is no cap on back pay and, in my experience, workers with age cases typically have the largest amount of back pay because they have the hardest time finding a new job .  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of the age discrimination MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been discriminated against.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated because of your age on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages.  Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.

LIQUIDATED (“DOUBLE”) DAMAGES

Like FMLA cases, ADEA cases permit you to obtain liquidated or “double” damages.  Typically, you take the amount of your back pay and double this amount to arrive at a number for your recoverable amount.  However, liquidated damages are only permitted in cases where the employer’s conduct was WILLFUL.  A willful violation occurs when an employer actually knew that its conduct violated federal law or showed reckless disregard for that fact.

REINSTATEMENT OR FRONT PAY

Although most employees do not want to go back to work or work for the employer that treated them differently due to age, reinstatement to your prior position with your old employer is an option under the ADEA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.

If the Court does not award reinstatement, they might order that an award of “front pay” is appropriate.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.

COMPENSATORY AND PUNITIVE DAMAGES NOT PERMITTED

Also like FMLA cases, compensatory and punitive damages are not recoverable in ADEA cases.  These include pain and suffering, mental distress, physical suffering, mental impairment, etc. Also, punitive damages or “punishment” damages are not recoverable.

ATTORNEY’S FEES AND COSTS

Reasonable attorney’s fees and costs are awarded, if you prevail.

WAIVER AND WAITING PERIOD FOR ADEA CASES ONLY

An interesting thing that makes age cases different from other employment suits is that an individual may waive his/her rights based on the ADEA at the employer’s request.  You should NEVER waive your rights under the ADEA without speaking with an attorney first.  Additionally, a proper waiver must contain a very strict list of items to be legally enforceable.  The waiver and waiting period typically come into play with severance package renegotiations and settlement agreements.  Under the ADEA, you have 7 days to revoke an agreement after it has been made.  Additionally, there is a 21 day waiting period for employees to consider an agreement proposing a waiver of rights prior to signing.

SUMMARY

ADEA cases are somewhat similar to FMLA cases in the types of damages recoverable.  The most likely damage you will be awarded is your back pay.  The ADEA also provides for liquidated damages in an amount equal to your back-pay (“double damages”) IF you can prove a willful violation.  This is not always easy to do.  Reinstatement or front pay is at the court’s discretion but also a possibility.  Compensatory and punitive damages are not permitted in ADEA cases.  Lastly, you can recover attorney’s fees and costs.  ADEA cases are unique in that if you settle a claim with your employer, you will have a 7 day waiting period in which you can revoke the settlement.  Employers must also provide you a 21 day waiting period if they are requesting you to waive your ADEA rights for some form of severance package.

“What Is My Case Really Worth?” Part Two- Family and Medical Leave Act (“FMLA”) Cases

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Today I am releasing Part Two of the three part series in “What is My Case Really Worth?”  Part Two focuses on Family and Medical Leave Act (“FMLA“) cases.  As we all know, the FMLA entitles an employee who has been working with a company for a year or more to twelve weeks of unpaid leave for a serious health condition; to care for a parent, spouse, or child with a serious medical condition; or for the birth, adoption, or beginning of foster care for a child.  We also know that an employer must employ 50 or more employees within a 75-mile radius of the employee’s workplace for them to fall under the Act.  An employee using FMLA leave is entitled to have their same position (or a comparable position in terms of pay, advancement opportunities, and duties) restored to them upon returning from FMLA leave.  I have written extensively on ways that an employer can interfere with or retaliate against employees for using FMLA leave.  We also know that you do NOT need to file an EEOC complaint to bring an FMLA claim.  Assuming you have a valid FMLA claim, what damages are you entitled to under the law?

BACK PAY

Back pay is the most often awarded damage in FMLA cases.  There is no cap on back pay.  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of FMLA interference or retaliation MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been terminated.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated for using FMLA leave on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages.  And in case you are asking, “how will my old employer even know that I am working now?,” they are going to request copies of your tax returns during the course of discovery and you will be obligated to give these up.  Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.

LIQUIDATED DAMAGES (“DOUBLE DAMAGES”), PLUS INTEREST

Unlike Title VII and the ADA, the FMLA provides for liquidated damages.  I call liquidated damages “double damages” because they are typically calculated by multiplying your back pay times two.  By statute, liquidated damages are assumed for a violation of the FMLA.  However, an employer can avoid liquidated damages if they can prove that the action or omission was in good faith and that they had an objective reasonable ground to believe that the act or omission did not violate the FMLA.  Courts have found that good faith requires proof that the employer took affirmative steps to comply with the FMLA. Liquidated damages are the rule, not the exception, and the burden is on the employer to establish that their actions were taken in good faith.  That is a bonus for employees!

REINSTATEMENT OR FRONT PAY, AT THE COURT’S DISCRETION

Although most employees do not want to go back to work for the employer that interfered with or retaliated against them for using FMLA leave and that they are now suing, reinstatement to your prior position with your old employer is an option under the FMLA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.

If the Court does not award reinstatement, they might order that an award of “front pay” is appropriate.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.

ATTORNEY’S FEES AND COSTS

Reasonable attorney’s fees and costs are awarded, if you prevail.

COMPENSATORY AND PUNITIVE DAMAGES NOT PERMITTED

The biggest difference between FMLA cases and other types of employment related lawsuits is that the FMLA does NOT provide for punitive or compensatory damages.  Compensatory damages are also called actual damages and include emotional distress, physical distress, pain and suffering (grief, anxiety, depression, embarrassment), medical bills, and mental impairment.  Punitive damages are commonly referred to as “punishment damages” and punish the company for the wrong-doing, hopefully deterring them from committing the same offenses in the future.  These damages are NOT permitted under the FMLA (perhaps the trade-off for allowing liquidated damages, as discussed above).  In South Carolina, we do have a state cause of action called “intentional infliction of emotional distress” and employees can sometimes plead this cause of action if they have suffered severe emotional distress.  This cause of action does not have a cap and permits both compensatory and punitive damages. You must have proof of mental suffering (psychiatric treatment notes, etc.) and this cause of action can sometimes open you up to a mental examination from the other side and require retaining expert witnesses, which can be expensive.  However, it is an option if the facts support that you have sought significant psychiatric treatment from the employer’s actions.  Not all FMLA cases will support a cause of action for intentional infliction of emotional distress.

MEDIATION REQUIRED

Like Title VII and ADA cases, FMLA cases in federal court must be mediated pursuant to District Court of South Carolina rules.  This allows both sides the opportunity to work out a compromise.

SUMMARY

If you have a valid FMLA claim, you are likely to receive your back pay if you prevail.  You might also receive liquidated/double damages if the employer cannot put up a good faith reason for interfering with or retaliating against you for using or seeking FMLA leave.  This burden is on the employer and not you!  You cannot get compensatory or punitive damages but attorney’s fees and costs may be awarded.  It is also worthy of note that FMLA cases generally have high jury appeal.  Someone who has been fired or retaliated against for using FMLA leave due to a serious health condition or a family member’s serious health condition can present a very sympathetic case that jury members can often relate to.  It is also important to remember that the FMLA provides for both employer and INDIVIDUAL liability so both your old employer and all of the individuals personally involved in making or taking action against your FMLA leave can be sued (i.e., your supervisor, HR director, etc.)

Sexual orientation to become protected class? Wait and see….

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Today and tomorrow the United States Supreme Court will hear oral argument on how America defines marriage.   It is unlikely that the final written decision will be issued until June so we will have to wait until then to find out. IF the Supreme Court establishes a constitutional right to same-sex marriage, there may be enough public support for Congress to amend employment laws, including Title VII and the FMLA, to prohibit discrimination or retaliation based upon sexual orientation and to amend the definition of “spouse” in the FMLA regulations so that all same-sex married couples are included.  All eyes will be on Justice Kennedy, the swing vote, to see the kinds of questions he poses today during oral argument.  Sometimes you can gauge the direction a decision is likely to go by the types of questions the Justice asks.

Stay tuned……

“What Is My Case Really Worth?” Part One-Title VII and ADA Employment Cases

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As promised, today marks my first installment in a three part series of blog posts about damages in employment law cases.  Balancing my client’s expectations about how much their case is worth with the likely  reality of what their case is actually worth is quite often a difficult job.  Today, we will focus on Title VII (gender, race, national origin, religion discrimination) and ADA (disability) cases.  Title VII gender cases also include sexual harassment and pregnancy discrimination and cases involving any retaliatory actions taken against someone who is a part of these protected classes.

THE CAPS

The first thing I always have to explain to clients is that damages (compensatory AND punitives but NOT back pay) are CAPPED by federal law in Title VII employment discrimination cases and ADA cases.  This is a very difficult concept for clients to understand at times because they often associate lawsuits with their perception of what they see on television; i.e. millions of dollars for a product liability case or hundreds of thousand dollars for a car wreck or personal injury case.  Personal injury and product liability cases do not have federal caps like employment discrimination cases do!  Multi-million dollar awards in non-class action employment discrimination cases are rare.  Even if a jury agrees with you in a Title VII or ADA case, you cannot get more compensatory or punitive damages than the federal caps.  There is nothing I can do as an attorney to change this.  So what are the caps?  The caps depend on how many total employees your old employer has during the current or preceding calendar year:

15-100 employees:    $50,000.00

101-200 employees:  $100,000.00

201-500 employees:  $200,000.00

500 plus employees:  $300,000.00

Your next logical question will be what is included in compensatory and punitive damages?  Compensatory damages are also called actual damages and include emotional distress, pain and suffering (grief, anxiety, depression, embarrassment), medical bills, and mental impairment.  Compensatory damages typically require proof of mental health or psychiatric treatment.  Punitive damages are commonly referred to as “punishment damages” and punish the company for the wrong-doing, hopefully deterring them from committing the same offenses in the future.  In order to get punitive damages, you must prove that the employer acted with malice or reckless indifference.  Punitive damages are very rarely awarded by courts.  These damages together, are capped by the amounts set forth above.  The cap does not apply to back pay so we will move on to discuss that next.

BACK PAY

Back pay is the most often awarded damage in employment discrimination and ADA cases.  There is no cap on back pay.  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of termination or discrimination MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been terminated.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages.  And in case you are asking, “how will my old employer even know that I am working now?,” they are going to request copies of your tax returns during the course of discovery and you will be obligated to give these up.  Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.

FRONT PAY

Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.

ATTORNEY’S FEES

Reasonable attorney’s fees are covered by Title VII and the ADA, if you prevail.

REINSTATEMENT

Although most employees do not want to go back to work for the employer that terminated them and that they are now suing, reinstatement to your prior position with your old employer is an option under Title VII and the ADA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.

MEDIATION

Mediation is a good thing and all employment cases in South Carolina federal court must be mediated.  At mediation both sides are encouraged to come to a compromise to help alleviate the risks of a trial that exist for both sides.  At the end of the day, if you go to trial, there is always a risk that a jury will side with the employer and you will recover nothing.  On the flip side, there is a chance that a jury will side with the employee and award large and embarrassing damages against the employer.  Mediation allows both sides to structure a settlement that they can live with and helps eliminate the uncertainty of trial.  Both sides are required to negotiate in good faith.  There can also be tax incentives to structuring a settlement out of court.

SUMMARY

In a typical ADA or Title VII case, you are likely to be awarded your back pay, if you prevail.  If you can prove compensatory damages by proof of mental health treatment records or witness statements, you may also get damages up to the statutory caps set forth above.  Punitive damages are rare but can be awarded, subject to the caps.  Front pay is sometimes available for employees who are still unemployed and are unlikely to become reemployed for some time into the future, but this is at the court’s discretion.  All cases must be mediated in federal court and a settlement allows both sides to work out a compromise and gives the ability to control the outcome of the matter.

Stay tuned next Monday for the second installment in this series which will focus on damages in FMLA (Family and Medical Leave Act) cases.

Stay Tuned for Upcoming Series: “What is my case really worth?”

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Beginning next week, I will be writing a three part blog series on calculating damages in employment cases.  The first part of the series will focus on Title VII (gender, race, national origin, religion, and corresponding retaliation) and Americans with Disabilities Act (“ADA”) cases. Part two will deal with FMLA (“Family & Medical Leave Act“)  cases. Lastly, Part three will deal with ADEA (“Age Discrimination in Employment Act”) cases.  The first blog post will be published next Monday, March 25th.

I have found in my practice that one of the most difficult things to do is to help clients understand what their case is worth.  Unlike other lawsuits (car wrecks/personal injury, defamation suits, workers compensation, etc.), the federal government has enacted statutory caps in most employment cases.  These caps set the upper limit for what you could obtain on your best day in court.  I will be discussing the caps in detail in my upcoming postings.  Often times clients do not understand these caps and the way they limit their potential recovery.  I cannot tell you how many times I have people say that they have an employment case that is worth a million dollars.  Needless to say, there are very few employment cases that would bring that kind of award.  I will also be discussing front pay, back pay, liquidated damages, and punitive damages.  I hope this series will help others understand the way that damages are calculated in employment cases so that everyone can have a realistic picture of what to expect once litigation begins.

Should I Sign this Severance Agreement . . . or Not?

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I often receive calls from prospective clients who have been offered severance offers as part of a termination. Sometimes employers will offer a month or two’s worth of pay in exchange for a waiver of all claims that you might have against the employer in perpetuity. You should never sign a severance agreement without speaking with an attorney first.

Don’t get me wrong, this is not to say that severance agreements are always bad. Sometimes quite reasonable severance packages can be worked out with an attorney’s help, which avoids having to file a lawsuit. The problem in severance situations is that employees just don’t know what a reasonable severance package is under their unique circumstances. Negotiating a severance package is, after all, not something that the average person has done before. While there is information online available that claims what a “typical” severance package is or what a “normal” severance amount would be based upon your wages and how long you have worked for the employer, the truth is that there are no hard and fast rules on determining what a reasonable severance package is.

The circumstances surrounding the separation from your job are unique to you. Perhaps your termination violated a state or federal employment law. For example, perhaps you were terminated immediately after telling your boss that you just found out that you are pregnant. This violates state and federal laws protecting women who need to take maternity leave and prevents employers from discriminating against female employees based upon their pregnancy. Signing a severance agreement and accepting this severance package would forevermore waive your right to bring such a valuable lawsuit that you would have otherwise been able to pursue. Under this set of circumstances, your employer’s pregnancy discrimination would provide you with substantial leverage in negotiating the offered severance package upwards.  You likely won’t know that you have this leverage, however, unless you consult with an attorney prior to signing the severance agreement.

I frequently review severance agreements for clients and renegotiate severance packages to provide more monetary benefits for them as part of the package. It is also often possible for an attorney to negotiate extended health insurance benefits (or a monetary sum so that you can obtain your own).

The bottom line is you need to have an attorney review your severance agreement if you are contemplating whether or not to sign it. You could waive rights that you did not even realize that you had if you sign a severance agreement without first seeking the help of counsel.  Employers would love for you to hastily sign off on the document before you walk out the door—don’t do it!

Happy Birthday FMLA!

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Twenty years ago today, President Clinton signed the Family and Medical Leave Act into law, which went into effect August, 5, 1993, six months later.  The bill was a major part of President Clinton’s agenda in his first term.  In the past twenty years, the FMLA has caused MAJOR headaches for employers.  As reported in a prior blog post, the FMLA provides employees with 12 weeks of UNPAID leave during any 12-month period to attend to a serious health condition of the employee, parent, spouse, or child, or for pregnancy or care of a newborn child, adoption, or foster care of a child.  In order to qualify, your employer has to employ at least 50 people and you have to have been employed for 12 months.

And while the FMLA is seemingly so young at only twenty years old (only one more year before being of legal age to purchase alcohol!… if it were a person and not a statute of course) there is a significant amount of case law that has developed over the past two decades that interpret the Act’s statutory language and the intent of the legislature in enacting it. The different federal circuits have come to differing conclusions on some issues, but have agreed on others. The United States Supreme Court has weighed in on the statutory employee benefit from time to time.

Not to be outdone, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”), which amends the FMLA and broadens its scope to apply to members of the armed services and their families while they are home from deployment. Case law is still developing as to the FMLA amendments, but the changes do not dramatically change the FMLA or its very essence.

Some of my most interesting cases have dealt with FMLA leave when an employer has interfered with or retaliated against an employee for using this leave.   I thought I would highlight the most common complaints I receive about FMLA from prospective clients and then provide a brief synopsis of what you can do if you believe this is happening to you.

1)  Right after my employer found out I am was going to take FMLA leave, they started treating me different.  (i.e., giving me different job duties, making up things I did wrong, isolating me, etc.)

2)  As soon as my employer found I was going to take FMLA and/or as soon   as I returned from FMLA leave, I was fired.  (I call these suspicious timing cases)

3)  Employer never specifically requested medical certification in writing or gave me 15 days to get the certification and then said that I was supposed to do this.

4)  While I was out on FMLA leave, my boss continuously contacted me asking me when I was coming back and checked on my medical status.

First, these are only a BRIEF sampling of some of the ways that employers can retaliate/interfere with your FMLA leave.  Nevertheless, they are some of the more common complaints that I receive.  Regarding 1 & 2, these are what I call “retaliation claims.”  Smart employers know better than to terminate employees right around the time that they take or return from FMLA but they still do it all the time!  Often times, they try to peg the termination on performance deficiencies they believe were present before they even knew you were taking FMLA leave.  Sometimes that is in fact the case and the employee has long-standing performance problems.  But other times, employers try to manufacture performance deficiencies to hide their true motive and we have to flesh these factual disputes out during the process that is called “discovery.”  Regarding 3, an employer can in fact request IN WRITING that you obtain medical certification to substantiate your need for FMLA leave but they must give you 15 days to return the form.  Often times, employers will ORALLY request a certification and this does not comply with the rule.  Then they try to penalize the employee for never obtaining the proper certification when they never complied with the rules in the first place.  Lastly, number 4 is an issue I have in a case I am currently litigating in federal court.  Employers are not allowed to “interfere” with your FMLA leave and this includes actions that would tend to “chill” or deter you from using your leave.  Badgering employees while they are on leave and asking them to check-in on a regular basis, send in weekly status updates, and do even menial work has been held by courts to constitute interference.  If you believe that any of these things are happening to you, you should call an attorney immediately to discuss your rights.  In the meantime, let’s wish the FMLA a happy 20th birthday!