By Kristen M. Kraus – Partner
Employment Law Considerations
If you have ever reviewed a severance agreement on behalf of an employee, you have likely come across a series of acronyms like ADEA, ADA, ADAA, GINA, FMLA, WARN, OWBPA and ERISA, just to name a few. That agreement likely required the employee to release all of these claims, and many others, in exchange for some consideration. But did you counsel the employee properly?
Did you know that to have a valid release of claims under the Older Workers Benefit Protection Act an employee must be given 21 days to consider the agreement?
Do you know that employees that are not restored to their former position after returning from approved leave under the Family and Medical Leave Act may be entitled to liquidated damages?
Did you know that an employee cannot waive a minimum wage or overtime pay claim under the Fair Labor Standards Act unless the release is supervised by a court or by the U. S. Department of Labor?
Some of the complex issues employment litigators deal with on a daily basis
Attorneys are commonly asked questions about the applicable statute of limitations or what damages a prevailing party can recover. However, in employment litigation, the statute of limitations can vary from six months to six years depending on the nature of the claim.
The damages also widely vary with some claims allowing for the recovery of front pay, back pay, and reinstatement while others allow for the recovery attorneys’ fees for a prevailing party and noneconomic damages.
Likewise, some claims require that a complaint first is filed with the Equal Employment Opportunity Commission, while others allow an employee to proceed immediately to court.
Some laws do not apply to employers with less than 50 employees, while others apply to employers with as few as 4 employees.
These questions merely scratch the surface of the complex issues employment litigators deals with on a daily basis.
The unique Dworken & Bernstein perspective on employment law
Creating laws favorable to workers
Dworken & Bernstein has represented the rights of individual employees and has created law favorable to workers in cases like
Mauzy v. Kelly Services (1996) 75 Ohio St.3d 578 which allowed circumstantial evidence to be used as direct proof of employment discrimination;
Kulch v. Structural Fibers (1997), 78 Ohio St.3d 134 which established a Greeley claim in Ohio for whistleblowing; and
Stanley v. The Lawson Company, 993 F.Supp. 1084 (N.D. Ohio 1997) which analyzed sex and religion discrimination standards under Title VII.
Counseling & representing both employers and employees
However, our perspective is unique because we have also counseled and represented employers in a variety of labor and employment matters, and represented thousands of employees in wage and hour class actions.
In recent years, our firm has obtained million dollar verdicts on behalf of two employees who were victims of retaliation.
Even more recently, Dworken & Bernstein represented the rights of more than 7,000 employees in obtaining a favorable verdict against an employer who failed to comply with state and federal wage and hour laws.
Some of the employment law issues we will be delving into in the coming months.
Over the course of the next twelve months, we will analyze the Fair Labor Standards Act, the Family and Medical Leave Act, the American with Disabilities Act, the Uniformed Services Employment and Reemployment Act, the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. We will also discuss sexual harassment, whistleblower and unemployment claims.
Finally, we will look at potential pitfalls in the recruitment and hiring process and common issues involving severance and non-compete agreements. Each article will answer questions about which employers are covered by the law, the applicable statute of limitations, damages, defenses to employment claims and practical considerations such as when to litigate and when to settle, from both the perspective of the employee and the employer.
In the next article, we will discuss the new overtime laws which were scheduled to go into effect on December 1st. Under the new Fair Labor Standards Act (FLSA) regulations, salaried workers earning less than $47,467 would now be entitled to time and a half for all hours worked over 40. The new regulation more than doubles the previous salary threshold of $23,660. However, on November 22nd, Federal District Court Judge Amos Mazzant issued a nationwide injunction blocking the new overtime rule from taking effect. We will discuss Judge Mazzant’s decision and try to dissect the complex overtime laws, both old and new.
The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation