Labor & Employment Lawyer
Know your Labor & Employment rights and protect them if they are violated! The various laws governing our jobs and careers are extremely important and touch nearly everyone in society, whether you are presently working or formerly employed. Therefore, it is important to obtain quality representation when matters arise that can affect your livelihood. At Minnillo & Jenkins, we have skilled, determined and caring attorneys prepared to assist you during what can be a very stressful and trying time. Minnillo & Jenkins works with our clients to navigate what can often be a confusing maze of overlapping state and federal law to identify and pursue potential claims arising out of the employment relationship.
Attorneys who practice in this area: Christian A. Jenkins, Robb S. Stokar
- Lay Offs and Terminations
- Family and Medical Leave
- Overtime Pay
- Noncompete Agreements
- Civil Rights and Constitutional Litigation
- Whistleblower Claims
- Collective Bargaining and Grievance Arbitration
Lay Offs and Terminations:
Unemployment Compensation: Laid off workers are often entitled to collect unemployment compensation benefits because their employment ended through no fault of their own. Terminated workers are often entitled to benefits, too, depending on the facts and circumstances. However, severance pay and other provisions in separation or other agreements can have an impact. For more information on unemployment compensation benefits in Ohio go to: http://unemployment.ohio.gov.
Continuation of Insurance Benefits (COBRA): Under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986, laid off employees are often entitled to continue their or their dependents’ health insurance coverage under a former employer’s group plan for 18 months (or longer in certain qualifying circumstances). The former employee or his/her dependents who elect to continue coverage may be required to pay up to 102% of the total premium. Important timelines apply to the election of COBRA coverage. Generally speaking an employee and his/her dependents have 60 days from the later of the loss of coverage or the notice of COBRA rights. For detailed information about COBRA rights go to the Department of Labor’s page at: http://www.dol.gov/ebsa/faqs/faq-consumer-cobra.html.
Final Pay: State laws vary but typically require an employer to pay an employee his or her final paycheck within a limited time after termination – usually no more than 30 days and in some states, even less. Additional disputes sometimes arise about payment for overtime, commissions, expense reimbursements, unused vacation or sick pay and disputed deductions from final paychecks. Employee rights in some cases depend upon the employer’s written policies, practices and/or individual arrangements or understandings with employees.
Pension Benefits: It is important to determine how your pension or 401(k) rights may be affected by a layoff. These plans vary widely and are governed by a “plan document” that sets out the terms of the plan. Employees are entitled to a “summary plan description” providing basic terms of the plan. Pensions may also be affected by the bankruptcy of the employer. For more information about your rights in such an event, go to: http://www.dol.gov/dol/topic/heath-plans/cobra.html.
Advance Notice of Layoff (WARN Act): The federal Worker Adjustment and Retraining Notification Act requires many larger employers (i.e., those with more than 100 employees) to provide 60 days prior notice of a mass layoff or plant closing. There are several exceptions to this requirement, and whether a layoff constitutes a “mass layoff” or “plant closing” within the meaning of the WARN Act can be disputed. However, if an employer fails to comply with the WARN Act’s notification requirements, it can be required to compensate affected workers with up to 60 days wages and benefits. For more information about the WARN Act and its requirements, go to: http://www.dol.gov/compliance/laws/comp-warn.htm.
Severance Pay: Some employers are obligated to pay severance pay under a collective bargaining agreement, employee benefit plan or other agreement. Absent such an agreement or plan, there is typically no right to severance pay although employers sometimes offer it in order to secure a release in connection with a layoff.
Re-employment Rights & References: Separation and/or severance agreements sometimes provide that the laid off employee will not seek employment with the employer in the future or seek to characterize the separation as a resignation or termination for cause. These provisions can have an impact on your ability to apply for jobs with your former employer, your right to unemployment benefits and your ability to use your former employer as a reference.
Older Worker Rights: Employers laying off workers over the age of 40 must comply with the federal Older Workers Benefit Protection Act in order to secure an enforceable release of potential age discrimination claims from such employees. Among other things, this Act requires that an employer give the laid off employee 21 days to consider an agreement and seven days to revoke it – longer periods and additional disclosure requirements apply where the layoff is part of an exit incentive program or employment termination program (i.e., a large layoff). To learn more about age discrimination in employment (the “ADEA”) and the OWBPA, go to: http://www.eeoc.gov/laws/types/age.cfm.
Discrimination and Wrongful Termination: Federal and state law prohibit employers from discriminatorily selecting employees for layoff on a variety of bases, including race, gender, disability, color, national origin, religion, pregnancy or in retaliation for opposing such discrimination or participating in a discrimination proceeding. An employee who believes he or she was selected for lay off on an unlawful, discriminatory or retaliatory basis may bring a claim under state and/or federal law in a variety agencies and courts. For more information, go to: http://www.eeoc.gov or http://www.crc.ohio.gov.
Discrimination: (Race, age, gender, disability, religion and national origin)
A number of federal statutes make it unlawful for employers to discriminate against employees with respect to the terms and conditions of employment on the basis of race (Title VII of the Civil Rights Act of 1964), age (the Age Discrimination in Employment Act), gender (Title VII), disability (the Americans with Disabilities Act and the Rehabilitation Act), religion (Title VII) or national origin (Title VII). There are also state laws making such conduct unlawful. Discrimination claims often involve agencies such as the Equal Employment Opportunities Commission or the Ohio Civil Rights Commission before proceeding in court. We have experience handling all manner of discrimination claims before state and federal courts and agencies. For more information about federal anti-discrimination laws, go to http://www.eeoc.gov.
Family and Medical Leave:
Under federal law, mid-sized and larger employers must provide qualifying employees with up to 12 weeks of unpaid leave for the birth or adoption of a child or for a serious health condition of the employee or specified members of the employee’s family. Disputes often arise about whether an employee is entitled to leave as well as the employee’s right to return to his or her position. For more information about the FMLA, visit: http://www.dol.gov/whd/fmla/
For most employees, a federal statute (the Fair Labor Standards Act or “FLSA”)) mandates overtime pay (i.e., time and one-half pay) for all hours worked in excess of 40 hours per work week. However, the law provides a variety of exemptions from the overtime pay requirements for salaried employees who fulfill the specific requirements established by federal law, such as “professionals,” “administrators,” “executives” and “outside salespeople” to name a few. Whether or not an employer is entitled to an exemption or is properly computing the amount of overtime pay is often the subject of dispute. The federal regulations applying the FLSA are extensive and can be confusing. You can read more here:http://www.dol.gov/whd/overtime_pay.htm If you think your employer has failed to follow the FLSA, do not wait to seek legal assistance. Generally speaking, you can recover amounts that you were improperly denied for two, and in some cases three, years prior to the date you sue. So don’t delay.
Many employers utilize noncompete agreements to try to limit an employee’s activity after the employment relationship ends. Depending upon the circumstances in which such an agreement is implemented and its terms, such agreements may or may not be enforceable. If you are leaving a position or considering a separation agreement that includes a non-compete provision, it is important to carefully analyze the circumstances before making a move. In addition, many agreements include confidentiality provisions that can be used by former employers to try to attempt to limit an individual’s future employment possibilities. There is a great deal of litigation over these issues, so it is highly recommended that you obtain good legal advice about your rights and obligations if you are subject to such an agreement.
Civil Rights Issues and Constitutional Litigation:
Questions concerning the application and violation of rights and privileges guaranteed by the Constitution arise in many contexts. Most often we are consulted with respect to disputes stemming from employment with a government department or agency. Of course, issues of constitutional dimension also arise in other areas such as police misconduct, use of excessive force, business regulation and free speech to name just a few.
Ohio and the federal government have enacted statutes to protect employees who raise concerns about violations of law or issues of public safety from retaliation. The protection afforded by these laws is limited to specific circumstances and in many cases must be invoked by reporting concerns in writing in a relatively short time. Accordingly, employees with such concerns should seek counsel to ensure they protect their rights.
Collective Bargaining and Grievance Arbitration:
Employees covered by collective bargaining agreements are often entitled to file and pursue grievances for violations of the contract. In such cases, unions are obligated to fulfill their “duty of fair representation” to covered employees. Different laws apply depending on the circumstances. For example, in Ohio, public sector employees are often required to proceed before the State Employment Relations Board (SERB); whereas private sector employees and their organizations are governed by the National Labor Relations Board.
National Labor Relations Board
State Employment Relations Board