OH Employment Lawyers

Should I Sue My Employer?

Should I sue my employer?  Maybe. Speaking in very general terms, there are three major categories of laws protecting employees. These categories are: (1) discrimination law, (2) leave law, and (3) wage payment law. Below is a very brief discussion of each:

  1. Discrimination: Discrimination against individuals on the basis of their membership in a protected class is illegal. Protected classes include: gender, race, disability, age, national origin, religion and others. It is unlawful for an employer to discriminate against an employee based on their protected status. The discrimination can be failure to hire, decisions related to pay, discipline and decisions to terminate employment. The principle is that you cannot be treated differently than similarly situated employees on the basis of your protected status.
  2. Leave: Certain employees are entitled to leave by state and/or federal law. If you are entitled to leave, it is illegal for your employer to interfere with your leave, or retaliate against you for taking leave.
  3. Wages: There are also many wage payment laws which govern how your employer must pay your wages. These laws relate to payment of overtime lawful deductions from wages, and what constitutes “work” such that you have to be compensated.

If you are having issues with your employer, you should speak to an employment lawyer. You may have a viable lawsuit against your employer, and a good employment lawyer can help guide you in reviewing your situation.

should I sue my employer?
should I sue my employer?

Do I Need An Employment Lawyer?

Do I need an employment lawyer? Our experienced New York Employment Lawyers get calls all the time for people who are not sure whether they need an employment lawyer. You cannot bring an action just because you think it was “unfair” to terminate your employment.  There is no such thing as “unlawful termination,” or “wrongful termination.”  Unless you have an employment contract, there is really no such thing as wrongful termination.  So how do you decide whether or not to contact an employment lawyer?

Why …

There are times during the course of your employment when you may need an attorney. For example:

Deadlines: Employment laws are a morass of confusing deadlines and procedural requirements.  If you do it yourself, you might miss something and lose your claim.

Confusing claims: There are some employment laws that you might not know about and there are some laws you think exist, that may not.

Being taken seriously: Some employers will not take you seriously unless you have representation.

Confrontation and advocacy: Some people do not want to find themselves in a confrontational situation or advocating for themselves. Sometimes it’s better to have someone else advocate for you.  Attorneys are trained advocates.

When …

You should contact a lawyer immediately if:

Your current or former employer sues or threatens to sue you;

You are being asked to sign an something that you don’t fully understand, like an employment agreement, non-compete, confidentiality clause, or arbitration agreement;

You have been retaliated against for complaining about discrimination or something illegal the employer has done;

You are not being paid all the wages you’re owed (including time and a half for overtime);

You are misclassified as exempt from overtime or as an independent contractor;

You believe that you have been a victim of discrimination based upon your race, sex, religion, ethnicity, disability, age, pregnancy, national origin, color, genetic information, objecting to discrimination, or request for medical leave to care for yourself or a family member.

Do I have a case?

That’s the million dollar question, isn’t it?  The devil is in the details, but the following checklist should be a good place to start:

Cases involving termination, demotion, or suspension without pay

If you answer “yes” to any of these questions, you may have a claim. Definitely contact us if any of these occurred shortly before you were terminated, demoted, suspended, or otherwise disciplined:

●          You made a worker’s compensation claim shortly before being fired.

●          You recently objected to, refused to participate in, or reported illegal activity or discrimination by the company

●          You recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy.

●          Your employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer.

●          You recently performed jury duty.

●          You recently served in the military.

●          You recently took family or medical leave.

●          You recently served as a witness in a lawsuit or provided testimony or evidence to EEOC.

●          You recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment.

●          Your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week.  Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It is not illegal to discriminate against you for being you. Your boss does not have to like you.  He/she does not have to be nice to you.  However, if the discrimination or harassment fits into one of the categories below, you should contact us to find out more about your rights and your responsibility to report it before you make a claim.

● Race ● Sex ● Sexual harassment ● Religion ● Ethnicity ● Disability ● Age ● Pregnancy ● National origin ● Color ● Genetic information ● Retaliation for objecting to discrimination

If you feel that you have been treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color you should contact us.

Employment At Will

Employment At Will Employment at will basically means that an employee can be fired at any time and for almost any reason.  The flip side also holds true -- an at will employee has the right to leave at anytime and for any reason.  However, there are a few factors to note that may protect an employee from a seemingly random termination:

  • Employment agreement:  An employment agreement may set the terms of when an employer may terminate an employee or when an employee may leave.  Also, an employee handbook may extinguish the at-will aspect of the employment (e.g., by listing specific reasons for termination).
  • Illegal reasons: An employees cannot be fired for illegal reasons (e.g., as a result of illegal discrimination or retaliation).  
  • Public policy: There are certain limited public policy exceptions to the employment at will rule. (e.g., a lawyer cannot be fired for refusing to engage in unethical conduct).

If you have any questions about your employment termination or feel that you were terminated for an illegal reason, please call us for a free initial consultation.

What is a Reasonable Accommodation under the ADA?

The Americans with Disabilities Act (www.ada.gov) ("ADA") requires employer to provide “reasonable accommodations” to their disabled employees.  But what exactly is a reasonable accommodation under the ADA? The Code of Federal Regulations defines an accommodation as “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."


In general, there are 3 categories of reasonable accommodations:  (1) modifications/adjustments to the job application process, (2) modifications/adjustments to the work environment, or (3) modifications/adjustments that enable the employee equal benefits and privileges of employment that similarly situated employees without disabilities enjoy.  In general, the disabled employee must inform the employer of his or her desire for an accommodation.

A reasonable accommodation under the ADA may include:

  • making existing facilities accessible;
  • job restructuring;
  • part-time or modified work schedules;
  • telecommuting
  • acquiring or modifying equipment;
  • changing tests, training materials, or policies;
  • reassignment

Recall that the accommodation has to be “reasonable.”  While there is no clear cut test for what is reasonable, it essentially comes down to common sense.  To be reasonable an accommodation has to be practically feasible from the employer’s perspective.  From the employee’s perspective, an accommodation is reasonable when it enables the employee to perform the essential functions of his or her own job and provides him or her with an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

Too many people misunderstand their rights under disability discrimination laws.  If you have any questions, please contact us for further information.

Pregnancy Discrimination Act of 1978

Pregnancy discrimination is on the rise. Too many people are unaware of their rights under the law. Set forth below are some of the protections afforded under Title VII of the Civil Rights Act.  Title VII's pregnancy-related protections include: Hiring:  An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

Pregnancy Discrimination - Pregnancy and Maternity Leave: 

  • An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statement.
  • If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.
  • Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave

Pregnancy Discrimination - Health Insurance:

  • Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered.
  • Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.
  • The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.
  • Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Pregnancy Discrimination - Fringe Benefits:

  • Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
  • If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

Retaliation: It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

If you believe you have been the victim of pregnancy discrimination, please contact us.

Sexual Harassment

Sexual harassment is any verbal or physical interaction which is both unwanted and sexual in nature.  Sexual harassment can also take the form of sexual suggestions or explicit language, or a pattern of sexist remarks. According to the EEOC, sexual harassment occurs, "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

Examples of Sexual Harassment

  • Verbal abuse, jokes or conversations about sex
  • Offensive words on clothing, and unwelcome comments and repartee.
  • Touching and any other bodily contact such as scratching or patting a coworker's back, grabbing an employee around the waist, or interfering with an employee's ability to move.
  • Pressure for sex or dates, or unwanted flirting.
  • Transmitting or posting emails or pictures of a sexual or other harassment-related nature.  These can be posters, calendars, signs or clothing.
  • Sexually oriented entertainment at a work related event.
  • Playing sexually suggestive music.
  • Comments on a person’s appearance that make the person uncomfortable because of his or her sex.
  • Unwanted touching.
  • Offering promotions or other job favors for sex, or threatening retaliation for denial of sex.

For more information on NYC sexual harassment, see:  http://www.nyc.gov/html/cchr/html/employment.html

For more information on sexual harassment, see:  http://www.eeoc.gov/laws/types/sexual_harassment.cfm

If you feel that you have been the victim of sexual harassment, please contact us for a free initial consultation.

Am I Entitled to FMLA Leave?

The Family and Medical Leave Act (FMLA) is a federal law that requires certain employers to provide to eligible employees up to 12 weeks of unpaid leave per year and to maintain the employee’s health benefits during the leave. FMLA applies to all employers with 50 or more employees.  Such employers must provide a FMLA eligible employee with up to 12 weeks of unpaid leave each year for:

    • the birth of a child and the care of the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and the care of the newly placed child within one year of placement;
    • the care of the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”

Under the FMLA, employers must also provide 26 workweeks of leave during a single 12-month period for the care of a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

An employee is only eligible for FMLA leave if they have worked for their employer at least 12 months and at least 1,250 hours over the past 12 months.

For more information, see:  http://www.dol.gov/whd/fmla/.

Employers often interfere with an employee’s right to take leave or retaliate against the employee for taking leave. If you feel that you are not getting the leave you are entitled to under the FMLA, please contact a FMLA attorney at our firm for a free initial consultation

How Does the Americans with Disabilities Act Protect You?

The Americans with Disabilities Act protects Americans against disability-related discrimination by making it illegal for any employer to discriminate against a qualified job applicant on the basis of his or her disability. Under the Americans with Disabilities Act, a disability is any mental or physical impairment that limits a person’s ability in a major life activity.  Because of the Americans with Disabilities Act, disability (as defined by the Act) cannot be used by employers as a reason to discount a job applicant, if that applicant meets all the employer’s requirements for the position. This includes any education, training, experience, skills and qualifications that are needed by a successful candidate.  However, the employer is allowed to refuse employment if the applicant is unable to carry out the “essential functions” of the position, either with or without the help of any “reasonable accommodation”.

Reasonable accommodation refers to equipment that can be used by a disabled person to help them carry out essential job functions. An employer is obligated to provide these facilities only if they are not prohibitively expensive or difficult to obtain.  Reasonable accommodations also include providing a sign language interpreter for a deaf candidate, or computer software or Braille facilities for a blind person who requires these things to help them perform essential job functions.   A reasonable accommodation can be something as simple as moving an employee’s desk closer to a bathroom.

If you believe you have been discriminated against by your employer based on your disability or for more information about the Americans with Disabilities Act, please contact us.