Employment Law FAQs

Was I wrongfully terminated/fired?

In almost all states, you can be terminated or fired "at will." That means you can be terminated without any reason. You can also quit your job at any point without providing a reason. The only state in which employment is not "at will" is Montana. However, all over the country, there are some exceptions to the default rule.

You have a wrongful termination claim when you are let go for illegal reasons, or you are let go in violation of public policy, or you are let go in violation of company policy. For example, if you are fired because you lodged a racial discrimination complaint with the Equal Employment Opportunity Commission (EEOC), you were wrongfully terminated. Likewise, if you work for a debt collection agency and were fired because you refused to use fraud or to break consumer protection laws in order to collect a debt, you would have a claim for wrongful termination.

In some cases involving a firing or termination, wrongful termination is not the only cause of action available or is otherwise an inappropriate cause of action to pursue. If you have a written contract or other documents in which your employer states you can only be fired for good cause, and there was no good cause, you may be able to sue for breach of contract. Similarly, some courts may find that there was a breach of an implied employment contract when an employer has stated employment will be for a particular period of time and then breaks this promise.

Read more about wrongful termination.

Did my employer illegally discriminate against me?

It is illegal for an employer to take adverse action against you or harass you if the basis for their conduct is a protected characteristic such as your race, gender, age, or religion. In some states, additional characteristics such as sexual orientation and gender identity are also protected; the extent of available protections for these classes under federal law is not as clear. If your employer’s behavior does not seem to be connected to any of these traits, it may be difficult to find a legal basis for a discrimination or harassment claim. However, many states are enacting workplace bullying laws, which may be more applicable to your situation than anti-discrimination statutes.

Read more about employment discrimination.

What should I do if I believe my employer is not paying me for the number of hours I am actually working?

It is not uncommon for employers to abuse employees by not paying them for the number of hours actually worked. Sometimes this abuse is subtle. For example, a restaurant might demand that an employee attend a training or meeting and require them to also work an eight-hour shift, without acknowledging or paying for the training or meeting time. Similarly, you may be required to be on standby at a job, or travel to a work site. You must be paid for this additional time, even if you are not completing your ordinary tasks during that time.

If you are not being paid for all your work hours, you may feel uncomfortable about asserting your rights because you fear losing your job. However, there are federal and state wage and hour laws in place to protect you, including the federal Fair Labor Standards Act (FLSA). Under FLSA, if you are an hourly worker, your employer must pay you at least the minimum wage. The exact minimum wage in effect depends on your state. Your employer is not allowed to dock your wage below minimum wage or withhold your final paycheck.

If your employer does not follow the wage and hour laws, you may be able to bring a wage and hour dispute. Employers usually have greater resources at their disposal, including lawyers. Therefore, once you realize you might have a claim, you should consult an attorney right away.

Read more about wage and hour disputes.

How do I know if I am entitled to overtime?

You are entitled to overtime wages under the FLSA and state law if you are considered a "non-exempt employee." An employee who is paid at least $23,000 per year, paid on a salary basis, and performs "exempt" job duties will be considered exempt from overtime rules.

Exempt job duties are those involving professional, administrative, or executive work. Professional employees include anyone in the "learned professions," including doctors, lawyers, dentists, and architects. Administrative job duties include office work that is directly linked to management or business operations of an employer. The duties must involve significant discretion. Executive job duties are those duties involving supervision of two or more employees and genuine input into the status of other employees.

Overtime wages must be paid at time and a half for every hour a non-exempt employee works over 40 hours in a single workweek. For example, if your employer asks you to work through lunch, but you also work a regular eight hours, this might be considered overtime. Similarly, if you are an assistant who must accompany your salaried boss on an out-of-state matter, and you must stay at that location overnight, you may be entitled to overtime.

Your employer cannot force you to sign a waiver regarding your right to overtime. However, you are not protected if the employer has conspicuously posted a rule or policy prohibiting you from working overtime. State law will cover whether you must be paid for time worked on holidays or rest breaks. Employers that fail to pay the required overtime may be liable not only for overtime compensation, but also liquidated damages, attorneys' fees and costs, and sometimes punitive damages.

Read more about overtime.

What does it mean to be an “at will” employee?

Being an at-will employee means your employer can terminate your employment at any time, and does not need good cause to do so. In most jurisdictions, there is a legal presumption that you are an at-will employee unless you can show evidence to the contrary. Such evidence may include an employer’s written policies or verbal statements regarding your job security. Note that while an employer need not show good cause to fire an at-will employee, those workers are still protected by laws prohibiting discrimination and harassment.

Read more about employee classification.

If I am laid off, does my employer have to pay me severance?

Generally speaking, your employer is only required to pay you wages owed for time worked and vacation time you have accrued, but not severance. This is typically only paid when an employee has contracted for it with an employer in advance, either individually or through a union agreement or company policy. However, there are some situations where, by law, your employer must provide some sort of compensation in the event of a termination, such as one resulting from a reduction in force that takes place over a short period of time.

Read more about severance.

Is my employer required to accommodate my disability?

An employer is required to accommodate a disabled employee if the accommodation does not impose an undue hardship on the employer. The Americans with Disabilities Act (ADA) requires that employers make reasonable accommodations for prospective and present employees with disabilities. An accommodation is defined as a change in the workplace that would assist prospective or present employees in performing their jobs. Reasonable accommodations generally include adjustments such as added ramps for employees in wheelchairs or permitting a service dog in the workplace for an employee who is vision-impaired.

However, if an employer would experience an undue hardship in attempting to make the requested accommodation, the employer is not obligated to provide the accommodation. Undue hardship to the employer occurs when the accommodation would be too expensive or too burdensome for the employer to provide. Additionally, an employer does not have to provide the specific accommodation requested by the employee if another modification would serve the same purpose and would be easier for the employer to provide.

Read more about disability discrimination.

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act (FMLA) is a federal law that permits employees to take extended leave, usually up to 12 weeks, from their jobs without being in jeopardy of losing their position. Employers commonly extend FMLA leave to employees when the employees have a serious health condition that prevents them from performing their jobs. FMLA leave is also given for the birth of a child, the adoption of a child, or providing foster care for a child. Employees are also covered by FMLA if they need to care for a parent, child, or spouse with a serious health condition, and in certain emergency situations arising from an employee’s spouse, parent, or child serving in active duty in the military.

Eligible employees can usually take FMLA leave for up to 12 weeks within a 12-month period. Additionally, FMLA guarantees only that employees’ positions will not be terminated during their absence. The law does not guarantee continued pay to employees during their leave. To be eligible for FMLA coverage, employees must have worked for the same employer for a minimum of 12 months, and the employer must have at least 50 employees.

Read more about the FMLA.

What is the difference between an “independent contractor” and an “employee”?

Worker misclassification can result in significant penalties. It occurs when an employee is improperly characterized as an independent contractor. In some cases, this misclassification is intentional so that an employer can avoid tax withholding, paying overtime, or purchasing workers' compensation. However, in other cases, it happens only because an employer misunderstood the difference. Generally, an independent contractor exercises a high degree of independent judgment, may work for others, uses his or her own equipment or tools, and may hire people to help. An employee typically uses the employer's tools in the workplace and is more restricted in how he or she performs the work.

According to the Department of Labor, the actual quality of the working relationship determines whether you are an independent contractor or an employee. Among the factors to be considered when determining whether there is an employment relationship are the extent to which the work being performed is integral to the employer's business, the permanency of the worker's relationship to the employer, the worker’s exercise of independent judgment or open competition with others, the worker's investment in facilities, and the nature of the employer's control over the work.

If a worker is an employee, the employer must compensate him or her according to the FLSA and other employment laws. Unless they are misclassified, independent contractors are not protected under these laws.

Read more about employee classification.

What is the statute of limitations for bringing an employment lawsuit?

The statute of limitations varies depending on what type of employment lawsuit is being brought, and whether it is being brought under federal or state law. Under federal law, for example, you have 180 days to file a charge of discrimination with the EEOC, but this period is extended to 300 days when your state or local government has a law prohibiting the same type of discrimination. Each state has its own statute of limitations for bringing a discrimination suit.

Similarly, lawsuits brought for a breach of an employment agreement are subject to state statute of limitations for breach of contract claims. Usually the statute of limitations for a breach of a written contract is longer than for an oral contract because documentary evidence, and not just witness testimony, will serve to prove or disprove the claims.

If you are suing for defamation or wrongful termination in violation of public policy, you will have to consult your state law to determine how long the statute of limitations period is. In California, for example, the statute of limitations for bringing a lawsuit for wrongful termination in violation of public policy is within two years of termination, as set forth in Code of Civil Procedure section 335.1.

Read more about employment law.

Are unpaid internships legal?

Internships can be unpaid, but under the federal Fair Labor Standards Act (FLSA), they generally must meet six requirements in order to be legal. Those include that the internship environment must be educational, the intern’s work must be for the benefit of the intern, the intern is closely supervised and does not displace staff, the intern has not been promised a job, that the employer does not obtain an immediate advantage from the intern’s work, and that both the intern and the supervising entity understand that the internship is unpaid.

Read more about the FLSA.

Can my employer make me take a drug test?

Usually, yes. If you are a job applicant, you should be aware that employers in the private sector may drug test you if they provided notice that drug testing is part of the job application process, the job is offered contingent on passing a drug test, there is no discrimination applied in testing, and a state-certified lab administers the test.

Once you have the job, your employment status will determine how protected you are, but generally there are more restrictions on testing an employee than testing a job applicant. The restrictions vary from state to state. For example, in states with a drug-free workplace program, employers are permitted to test based on reasonable suspicion, on a random basis, or when an employee comes back to work after rehabilitation that follows a positive drug test.

There are states in which companies cannot conduct a random drug test or a blanket drug test. The employer must have a reasonable suspicion for believing you are using drugs, or there must be a high risk of injury associated with performing job tasks under the influence of drugs. For example, if you operate a forklift as part of your job and smell like you have been drinking or getting high on your lunch hour, you could be required to take a drug test.

While you can refuse to take a drug test, you should be aware that your employer can fire you in most states for refusing to take a test, and in some states, you can even be denied unemployment benefits if you were fired for refusing to take a drug test if the employer had a preexisting written policy that prohibited drug use.

There are some states that have put in place detailed procedural rules, while other states have not enacted legal procedures related to drug testing. If you are concerned about drug testing in connection with your employment, you should consult an employment attorney licensed to practice in the state in which you work.

Read more about employee drug tests.

Can my employer run a background check on me?

Federal law permits employers to run background checks on prospective employees. However, before doing a background or credit check, an employer must request and receive written permission from the prospective employee. Rules promulgated by the Federal Trade Commission require the employer to inform you if anything in the reports leads to the company deciding not to hire you. An employer may not ask for certain background information because you are of a particular race or ethnicity.

Read more about employment background checks.

Is it legal for my boss to ask for my social media login information?

It is common for employers to research job applicants and even employers on social media sites. If your settings permit those whom you do not know to view your information, it is legal for the employer to seek out this information. The issue of whether your boss can ask for your social media login information is more controversial. There is no federal law prohibiting employers from doing this.

However, some states, such as California, have passed laws that prohibit employers from requiring a job applicant to provide social media passwords or requiring an applicant to show them their social media pages. In those states, employers cannot retaliate against you for refusing to provide a password or show a page. However, if you are not in one of those states, technically, your employer is not prohibited from this practice.

Read more about Social Media Use in the Workplace.

Do I qualify for unemployment benefits?

Each state has its on requirements for wages earned or time worked during an established period of time before a worker is eligible to receive unemployment benefits.

Read more about unemployment.

Can my employer try to stop me and my co-workers from forming a union?

Employers often try to persuade employees not to unionize because a union is often much stronger than an individual employee. An employer is required to bargain in good faith with a union. Under the National Labor Relations Act (NLRA), an employer may not restrain an employee in the right to organize, form, help, or join a labor organization, such as a union, for collective bargaining reasons.

Your employer can try to persuade your coworkers and you not to form a union, but not by threatening violence, lying, or using other coercive actions. For example, an employer cannot threaten employees with unemployment if they join a union. However, your labor organization also may not restrain or coerce employees by threatening them with job loss for failing to support the union.

The NLRA also prevents employers from restraining employees in their efforts to improve employment conditions. For example, your employer cannot ask about your union activities such that you cannot exercise your right to discuss working conditions.

Read more about labor unions.