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When should you settle your employment law claim?
Some employment law cases, like those pertaining to retaliation, wrongful termination, and discrimination, end up heading to trial, but most of these cases end up settling before they get to that point. There are several reasons for this. Employers oftentimes want to avoid the bad publicity created by prolonged litigation, and they might expect to save money by settling rather than paying extensive legal fees and risk being subjected to a larger judgment at trial.
Although you might be tempted to resolve your case sooner rather than later, you should only do so if it's truly in your best interests. But how do you know if that's the case?
Signs that it's time to settle your employment law case
Settlement isn't right for everyone. In fact, depending on the facts of your case, you might recover more compensation by taking your case to trial. But here are some signs that you might be in a position to settle your case:
What is disparate impact discrimination?
Most employers know that intentionally discriminating against workers on the basis of their race, sex, religion or other protected characteristics is illegal. It has been this way for many years. This kind of discrimination still happens more often than it should in American workplaces, and there are still many legal disputes over intentional discrimination. However, employment discrimination doesn't necessarily have to be intentional to be illegal.
Unfair effects
An important legal theory known as "disparate impact" allows workers to hold employers responsible for illegal discrimination without having to prove that the employer's discriminatory practice was intentional. Instead, the workers must prove that an employer's policy has a greatly outsized effect on one group of workers because of their protected status.
The alarming pervasiveness of workplace sexual harassment
While one month (April) is set aside for National Sexual Assault Awareness Month, - discrimination against women based on their gender identity, sexual orientation, and pregnancy at work remains a clear and present danger every month of the year.
A previous EEOC report from 2016 reveals that workplace harassment largely goes unreported, with statistics revealing 90 percent of victims do not take formal action or formally pursue their complaints. What is most alarming is that these types of charges were only two years following the high-profile #MeToo movement.
Alarming data
From 2018 to 2021, the EEOC documented almost 99,000 charges of alleged harassment, with more than 27,000 of those incidents involving sexual harassment. That year and each consecutive year saw an increase from the previous twelve months. Most alarming was the data that revealed more than 35 percent of documented harassment incidents.
To say that women file disproportionate charges would be an understatement. A total of 78.2 percent of sexual harassment claims were filed by women from 2018 to 2021. Out of the 98,000-plus in total harassment charges, women filed more than 62 percent of them.
Whistleblower protections for federal employees
A host of state and federal laws protect workers from retaliation after they have reported wrongdoing at work. This true for workers in the private sector as well as workers in the government, but the protections for federal employees are somewhat different and they have a separate system under which they can protect their rights.
How do you report retaliation in the private sector?
For employees in the private sector, the procedure for reporting retaliation can depend on the exact laws at issue in the case.
For example, let's say a worker at a manufacturing company lawfully reported unsafe working conditions to the Occupational Safety and Health Administration (OSHA). This angered their employer, who retaliated against them by cutting their hours. This is illegal retaliation.
The worker can then report this retaliation to OSHA, which can investigate. In fact, OSHA investigates retaliation claims involving not just the Occupational Safety and Health Act, but also the Clean Air Act, the Safe Drinking Water Act, the Affordable Care Act, the Consumer Financial Protection Act and many more. Importantly, the deadlines for reporting retaliation depend upon which statute is involved. A worker has 180 days to report a violation under the Affordable Care Act, for example, but just 30 days to report a violation under the Clean Air Act.
Signs that you're being subjected to disability discrimination
Your disability might make your life harder than you want it to be, but it shouldn't impact your enjoyment of equal employment opportunities. This means that you should be treated fairly throughout every step of the employment process, from hiring and promotion, to pay and discipline.
Yet, all too often employers discriminate against workers with disabilities. When they do, disabled workers might suffer not only emotional strain, but also financial loss and damage to their careers.
You don't want that to happen to you, as it could have long-term consequences that leave you at a financial and career disadvantage.
That said, a lot of workers who are treated unfairly struggle to identify if they've actually been discriminated against. That's why this week on the blog we want to look at some of the signs that you've been discriminated against based on your disability.
Red flags of disability discrimination in the workplace
There are several signs that disability discrimination might be occurring in your workplace. Here are some of them:
D.C. Voters Approve Ballot Initiative to Increase the Minimum Wage for Tipped Workers
On November 8, 2022, District of Columbia voters approved ballot Initiative 82 ("I-82") aimed at increasing the minimum wage paid to tipped employees. Over the next four years, I-82 seeks to gradually increase the minimum wage for tipped workers in Washington D.C. - until there is a single minimum wage rate for both tipped and non-tipped employees. I-82 attempts to address the wage gap faced by tipped workers by phasing out the tipped minimum wage entirely.
On May 1, 2023, I-82 officially goes into effect and immediately increases the D.C. minimum wage for tipped employees from $5.35 to $6.00 an hour. On July 1, the D.C. minimum wage for tipped workers will again increase to $8.00 an hour. Most critically, the overall D.C. minimum wage will increase at the same time from $16.10 to $17.oo an hour. By July 2027, the D.C. tipped minimum wage rate will be eliminated, and all hourly employees must receive the same pay.
Please contact Freedman Law, LLC, if you have questions regarding your rights in the workplace.
Back pay can quickly add up in a wrongful termination claim
Unless a worker in Maryland is under an employment contract or is part of a union with a collective bargaining agreement, they are likely employed "at will." Employers in at-will states can let an employee go for almost any reason, even reasons that might seem arbitrary or unfair.
However, the right to fire an employee at will is not unfettered. Employers in Maryland cannot terminate an employee if doing so would violate public policy. If an employer fires an employee in violation of public policy, the employee might have a claim for wrongful termination and could seek damages, including back pay.
What violates public policy?
There are a variety of circumstances in which a termination violates public policy.
Firing an employee in violation of state or federal law violates public policy. State and federal law hold that employees in legally protected categories such as race, sex and religion cannot be fired for discriminatory reasons. A discriminatory firing violates public policy and could form the basis of a wrongful termination lawsuit.
NLRB Bans Confidentiality/Non Disparagement in Severance Agreements
On February 21, 2023, the National Relations Labor Board (the "Board" or "NLRB") issued a decision in McLaren Macomb, which held severance agreements containing broad confidentiality and non-disparagement provisions infringe on the rights of employees covered by the National Labor Relations Act (the "Act").
This decision reverses the Board's previous decisions in Baylor University Medical Center and IGT d/b/a International Game Technology, both issued in 2020. These earlier cases found that the inclusion of confidentiality/non-disparagement provisions within severance agreements was not, on its own, a violation of the Act.
In McLaren Macomb, the Board reversed course and held employers cannot require individual employees to choose between receiving benefits and exercising certain rights under the National Labor Relations Act. The Act makes it an unfair labor practice for an employer to interfere, restrain, or coerce employees in the exercise of their rights. As such, the Board reasoned in McLaren Macomb that confidentiality/non-disparagement provisions would be improper since it may dissuade employees from filing unfair labor practice charges, offering assistance to other employees, and scaring off employees from aiding the Board with any investigations.
What can you do to build your workplace discrimination case?
Do you feel like you've been treated unfairly in your workplace because of being in a protected class of people, such as those with a disability, those over a certain age, or those of a racial, religious, or ethnic group? If so, then you might be chomping at the bit to get back at your employer, especially if you suffered from a negative employment action that was taken against you, such as demotion or termination.
While you might think that holding your employer accountable will be easy, it can be more challenging than you realize. This is because your employer is going to do everything it can to deflect allegations of wrongdoing. Therefore, it will provide what appears to be legitimate justifications for its actions against you, which may include poor work performance or excessive tardiness or absences.
So how do you go about proving your workplace discrimination case?
If you suspect that you've been discriminated against in the workplace, then you need to be diligent in gathering the evidence that you need to support legal action against your employer. Here are some ways that you can go about doing that:
Key Changes to D.C. Employment Laws
On March 22, 2023, significant amendments to employment-related laws in Washington D.C. were enacted, impacting the D.C. Human Rights Act, Cannabis Employment Protections Amendment Act of 2022, Paid Family Leave Amendment Act, and the Non-Compete Clarification Amendment Act of 2022.
D.C. Human Rights Act ("DCHRA"):
The D.C. Human Rights Act was amended in three critical ways. Firstly, independent contractors are now protected under the law. Secondly, "homeless status" is now recognized as a protected characteristic. Thirdly, harassing conduct is no longer required to be "severe or pervasive," but instead, the "totality of the circumstances" determines whether or not conduct constitutes harassment.
Employers must display an Equal Opportunity Poster that accounts for these changes.
Cannabis Employment Protections Amendment of 2022:
The Cannabis Employment Protections Amendment Act of 2022, going into effect in July 2023, prohibits employers from taking adverse action against employees who use recreational cannabis, participate in D.C. or another state's medical cannabis program, or fail an employer-required cannabis drug test. There are exceptions to this prohibition for "safe-sensitive positions" and if actions are required by federal statute, regulation, contract, or funding agreement. Employers should review their drug policies to ensure compliance.
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