Exploring Employee Rights and How to Defend

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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? Did you talk to your client about whether he was restored to his former position aft er returning from approved leave under the Family and Medical Leave Act and advise him that if he was not, he might 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?

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 of attorneys’ fees for a prevailing party and noneconomic damages. Likewise, some claims require that a complaint first be 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 four employees. These questions merely scratch the surface of the complex issues employment litigators deal with on a daily basis.

With my firm, I’ve had the chance to work with and see the game-changing employment cases up close. These cases are redefining the way labor law is litigated in this state. Cases like Mauzy v. Kelly Services (which allowed circumstantial evidence to be used as direct proof of employment discrimination); Kulch v. Structural Fibers (which established a Greeley claim in Ohio for whistleblowing); and Stanley v. The Lawson Company (which analyzed sex and religion discrimination standards under Title VII).

With the knowledge from working on cases like these and the recent representation of more than 7,000 employees against an employer who failed to comply with state and federal wage and hour laws, I will be bringing you up-to-date information on the latest trends in labor law in Cleveland.

Tony Vain Investigations

Over the course of the next 12 months, this column 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. Th is column will also review sexual harassment, whistleblower and unemployment claims. Finally, I will look at potential pitfalls in the recruitment and hiring process, and common issues involving severance and noncompete 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, I will review the new overtime laws which were scheduled to go into effect Dec. 1. 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 Nov. 22, 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.  Kristen Kraus

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