Employment Law

Our employment law and civil rights practice provides legal services for both employees and employers. Our experience in serving both groups allows us to provide better advice as to potential claims and strategies.

Examples of how we help employees:

  • Employment discrimination – the law prohibits discrimination based on race, color, religion, national origin, ancestry, sex, pregnancy, age, or disability. Discrimination can come in various forms, including harassment, termination, demotion, hostile work environment, refusal to accommodate, refusal to hire, failure to promote, unequal pay, or retaliation for speaking up about discrimination.  We have successfully litigated employment discrimination claims against public officials and against both large and small employers.
  • Wrongful termination and other retaliation – laws protect workers in some circumstances from being fired or otherwise retaliated against – such as for using military leave, accessing workers’ compensation, using FMLA leave, or complaining about legal or ethical violations (“whistleblowing”).
  • Wage and hour violations – laws require that employees be paid a minimum wage, that certain employees be paid overtime, that certain employees be paid for all “time worked,” and that minimum rest breaks be provided. Employers also sometimes misclassify workers as “independent contractors” when they really are employees, or as “exempt” employees when they are actually entitled to overtime pay.  For example, we have successfully litigated class actions on behalf of restaurant employees whose tip credits were not properly applied, causing them to be paid a lower rate than allowed by law.
  • Employment agreements – we frequently assist employees in negotiating employment or non-compete agreements, and in resolving issues that arise under those agreements.
  • Violations of National Labor Relations Act – Under the NLRA, an employer cannot forbid or retaliate against an employee for discussing work conditions (including the amount of compensation) on non-work time, and cannot retaliate against employees for participating in organization activities.
  • WARN Act Violations – the federal WARN Act requires some employers to give at least 60 days’ notice before laying off workers or closing a facility, in certain circumstances. If you have been laid off without sufficient notice, we can evaluate whether you could be entitled to damages and help you enforce your rights under this statute.

Examples of how we protect civil rights:

  • Fair housing – Similar to employment discrimination, it violates federal law to deny a person housing because of color, disability, familial status, national origin, race, religion, or sex. For example, we have filed actions to hold landlords accountable for refusing to accommodate renters with disabilities.
  • Public accommodation – Public accommodations (such as airlines, restaurants, or stores that are generally open to the public) cannot deny service based on a protected category or refuse to offer a reasonable accommodation to a person with a disability.

Examples of how we help employers:

In addition to our general business practice (contractual disputes, business formation, etc.), we help employers with issues relating to their employees, such as:

  • Discrimination defense – We have successfully defended several employment discrimination claims brought against our clients, from the complaint filed at the EEOC all the way through the court of appeals, if necessary.
  • Employment policy review – Laws and workplace customs are continually evolving. One of the best ways to reduce employment issues is to have clear policies that are responsive to the latest legal changes.  We can review existing policies and manuals, or to assist in drafting new ones.
  • Non-compete and employment agreements – we are experienced in drafting, defending, and enforcing employment and non-compete agreements.
  • Investigations – When an employee alleges harassment or hostile work environment, many employers choose to have an investigation conducted by a neutral, outside observer who can advise as to the credibility of the allegations and the best course moving forward. We have experience in conducting this type of investigation, and can tailor an investigation to fit the scope of the allegations and your budget.
  • Employee classification issues – using independent contractors can be beneficial in many situations, but misclassifying a worker as an independent contractor can be a very costly mistake. We can help you evaluate whether your worker is truly an “independent contractor” or an “employee.”
  • Unemployment claims – we provide advice and assistance in responding to unemployment claims, including an overview of the process, an honest assessment of whether the claim should be challenged, and assistance with appealing a negative determination.

Our Firm's Employment Law Attorneys

Published on: September 25, 2020:6:30 pm

US Dept of Labor issues proposed independent contractor rule

The United States Department of Labor has issued a proposed rule for determining whether a worker is an independent contractor or an employee.  This determination is the crucial factor in tax treatment (W-2 vs. 1099), as well as whether workers are covered by statutes such as the Fair Labor Standards Act or anti-discrimination statutes, and whether they are eligible for unemployment or other programs.  The proposed rule would make it easier for employers to classify workers as independent contractors, and would require an “economic realities” test to make the determination. The proposed rule has been criticized by pro-employee groups and is likely to be challenged in the federal courts.  Employers should constantly stay apprised of the state of the law so that they do not misclassify workers, as the penalties for misclassification remain significant.

Federal Court strikes part of USDOL joint-employer rule

On September 8, 2020, a federal court in New York struck down parts of the final joint employer rule issued by the US Department of Labor on January 16, 2020. The court’s ruling applies to so-called “vertical” employment relationships (for example, where a company uses workers of a subcontractor or staffing agency). The court found that the final rule violated the Fair Labor Standards Act (FLSA) in several respects. Employers who rely on a vertical employment relationship for any of their workers should seek legal counsel to determine how this ruling might affect their obligations and liability under the FLSA.

FFCRA confusion continues

Federal and state agencies continue to issue new guidance for businesses and employers regarding COVID-19 compliance requirements and best practices.  For example, on July 20, the U.S. Department of Labor added additional guidance to its list of FAQs regarding compliance with the Fair Labor Standards Act. This includes new guidance about how to compensate employees who work from home, the effect of changed duties due to COVID on whether an employee remains exempt from overtime, whether and how salaried employees’ pay may be reduced, and whether and how exempt employees can take leave under the Families First Act.

Keeping up with these evolving requirements (and understanding which ones are applicable to your business) can be confusing and overwhelming. Businesses should consult with attorney experienced in employment law to resolve any questions they have about COVID-19 compliance and best practices.

OSHA continues to update COVID-19 guidance

The Occupational Safety and Health Administration continues to issue updated guidance for employers, including recommending that all employers conduct a “hazard assessment” and take steps to minimize the risk of exposure and to keep the workplace safe for all employees. Failure to comply with OSHA guidelines could lead to fines and penalties from the agency, as well as make it more likely that an employer could be sued by current or former employees. CVDL is ready to help businesses amend their existing policies and procedures to increase compliance with OSHA and other regulatory bodies.

U.S. Supreme Court extends discrimination protection to LGBTQ workers

The U.S. Supreme Court ruled on June 15, 2020 that Title VII’s prohibition on discrimination based on “sex” extends to workers who allege they were discriminated against because of sexual orientation or transgender status.  Some states already provided this protection in state statutes, but this ruling will be applicable to workers from any state who bring suit under federal law.

Small Business Administration issues new guidance for employers with Payment Protection Program loans.

The federal government continues to provide updated and revised guidance for compliance with COVID-19-related laws.  For example, the SBA recently issued guidance for employers receiving Payment Protection loans but whose employees have refused to return to work.  In such a situation, employers can avoid liability for repayment, but only if they meet certain notice and documentation requirements.  Employers should seek legal advice to ensure that they are in compliance with these requirements.

—–

On May 20, the U.S. Department of Labor published a final rule clarifying how employers are to determine the amount of overtime compensation and other benefits that are due to employees who work fluctuating workweeks – i.e. a different number of hours from on week to another. This continues to be a very complicated and detail-specific area of the law, and failing to understand and properly follow the requirements can be costly. Employers and employees who have any questions about whether pay is being calculated correctly should seek legal advice.

Missouri appellate court clarifies “poor performance” and rule violation exceptions for unemployment

Employers frequently terminate employees for general poor performance.  But is such an employee entitled to unemployment benefits?  Under recent amendments to Missouri law, some employers have argued that the failure to follow a rule requiring good performance is “insubordination” and is sufficient to deny an employee unemployment benefits regardless of the employee’s intent.

But in a recent case, the Missouri Court of Appeals (Western District) found that an employer cannot avoid paying unemployment by simply making a rule prohibiting “mistakes, accidents, poor workmanship or bad judgment[.]”  In that case, the employee was fired for poor performance after he ran afoul of various rules over a period of a few months.  Because the employer had a rule stating that “poor performance” (defined as “failure to perform to acceptable standards”) was insubordination, the Labor and Industrial Relations Commission found that the employee had committed misconduct and was disqualified from unemployment because he knew that there was a rule prohibiting “poor performance.”

The Court of Appeals disagreed, and found that violating a general rule prohibiting “poor performance” does not constitute misconduct. The court noted that this rule is different from rules that prevent specific conduct (such as prohibiting profanity or violence). Because a general rule does not inform employees of what actions to take or avoid, it would operate as a de facto bar to unemployment for any employee who was fired for “poor performance” so long as the employer had such a rule, without providing employees with clear directives to follow.

The moral of this story is that employers need to have carefully worded policies in place in order to avoid paying unemployment for workers who commit misconduct under the rule violation provision.  Employers should seek legal counsel to assist in drafting their employment policies and handbooks.

Employers may need to adjust their policies in light of the COVID-19 pandemic.  Questions that employers should consider include:

*   Whether employees who could work at home can nevertheless be required to report to work once stay-at-home orders are lifted?
*   What policies should be put in place to monitor the productivity of employees who are working remotely?
*   Can, or should, employers take employees’ temperatures when they report to work?
*   What steps can employers take to ensure social distancing at the workplace?  Is disciplinary action appropriate for employees who refuse to follow social distancing policies?
*   Can an employee who refuses to come to work because of fear of contracting the virus be terminated? Is such an employee eligible for unemployment?
*   What types of leave are employers required to offer for covid-related absences?
*   What steps should an employer take to ensure that the work environment is a clean and sanitary as possible?
*   To what extent do federal or state laws affect an employer’s ability to adjust work shifts or job requirements to try to address social distancing or occupancy limits?
If you have questions about these or other issues related to how the pandemic affects you as an employer, you should seek legal counsel for assistance in developing best practices.

US Department of Labor issues regulations regarding emergency sick and family leave act

On April 1, 2020, the US Department of Labor issued detailed regulations regarding the implementation of new federal laws requiring most employers of 500 or fewer employees to provide paid sick leave for COVID-19-related quarantines or illness and to provide paid leave for employees who must care for children who are out of school due to the pandemic.  These requirements became effective April 1, 2020.  These regulations contain detailed provisions for how to determine whether an employee is eligible, how much the employee should be paid, what kind of notice or documentation the employee must provide, and what kind of records the employer must keep.  Employers are encouraged to seek legal counsel to provide guidance about what actions they are required to take.

Coronavirus and sick leave

New federal legislation requires some employers to provide paid sick leave to certain employees impacted by the coronavirus (for example, employees who have tested positive, employees who are awaiting test results, employees who must care for a family member who is positive or for children out of school, etc.).  This law only applies to certain employers and employees.  If you are an employee who has been denied leave, or an employer wondering whether you are required to provide paid sick leave, you should seek legal advice about what the new requirements are.

COVID-19 has created many other issues for employers and businesses – such as how to comply with state or local mandates – and also may affect existing laws such as FLSA, FMLA, and I-9 requirements.  Businesses should seek legal advice on how to address these concerns.

The National Labor Relations Board has released its new Joint Employer rule, which requires that an employer exercise “substantial direct and immediate” control over the most important aspects of a worker’s job (such as discipline, hiring and firing) in order to be considered an “employer.”  This rule would substantially decrease the circumstances in which a business with franchises (such as most chain restaurants) would be considered the responsible “employer” for workers employed by its franchisees.

This rule differs from the U.S. Department of Labor’s recent Joint Employer rule (which is the subject of multiple legal challenges), and is expected to also be challenged by labor unions.

Right now, the “joint employer’ situation is uncertain and depends on which standard will be applied and when the alleged violations occurred.  If you have any questions about whether you are an “employer” or about who the applicable “employer” is for an alleged violation, you should seek legal counsel.

Properly classifying workers

On January 1, 2020, the minimum salary amounts for overtime exemptions were increased. That means that some employees who were previously exempt from overtime are no longer exempt, and must be paid overtime, unless they are given pay raises that put them over the legal minimum. If you are an employer with employees in this situation, it is critical that you properly classify your employees and that you understand when overtime must be paid. Failure to properly pay overtime can result in substantial back pay owed and penalties, so you should consult legal counsel if you have any questions about whether overtime requirements apply. If you are an employee who believes that you qualify for overtime and are not being properly paid, you should seek legal counsel as soon as possible because timely filing may be required to preserve your claim.

Missouri Supreme Court issues arbitration opinion

– The Missouri Supreme Court issued an opinion on January 14, 2020, which further developed the law regarding arbitration agreements between employers and employees.  The case involved a legally blind employee who said that she did not know about the employer’s arbitration agreement and could not see or read the agreement because of her disability.  The manager helped the employee fill out her initial paperwork by entering information onto the computer, but did not tell the employee that she was signing an arbitration agreement.  The employer argued that because the agreement included a “delegation clause” which gave the arbitrator the right to decide whether the arbitration agreement was valid. In a 4-3 decision, the Supreme Court affirmed the lower court’s determination that no valid arbitration agreement existed. The Court found that it is a requirement that an arbitration agreement exists before a delegation clause can be enforced. The employee here challenged the existence of the agreement itself. The case is Theroff v. Dollar Tree.  CVDL attorneys Tim Van Ronzelen and Shelly Kintzel represent the employee in this case.

US Department of Labor issues final rule defining “joint employers” under the Fair Labor Standards Act

When a person works for more than one possible employer, the joint employer rule is used to help determine which of those “employers” is responsible if the worker is not paid properly according to federal law. For example, many fast food workers may be technically employed by a franchise, but the franchise owner is operating under the direction and control of the corporate owner to some extent.  Joint employment always depends on the specific facts of the arrangement, but the new rule sets out a four-factor test to determine which entities are the “employer” for purposes of liability for wage and hour violations.

Under the new test, most questions will be analyzed under a balancing test that considers whether the potential joint employer (1) hires or fires employees; (2) supervises or substantially controls the employee’s scheduling or working conditions; (3) determines the employee’s method and rate of payment; and (4) maintains the employee’s employment records.

The final rule takes effect on March 16, 2020.

Federal court upholds $55 million class action judgment brought by truck drivers against Wal-Mart

The Ninth Circuit recently affirmed a jury verdict of over $50 million dollars in a class action brought by truck drivers against Wal-Mart, under federal and California law.  The truck drivers argued that they should have been paid at least minimum wage for time spent on layovers because Wal-Mart “controlled” their actions during those layover periods.   Specifically, the drivers were not allowed to spend their “layover” time at home unless approved in advance by Wal-Mart.  Because this policy strictly interfered with drivers’ freedom of movement and ability to use their layover time as they choose, they should have been paid for that time.

While this case is based somewhat on California law, the principle that an employee must be paid anytime the employer is exerting sufficient control over the employee’s actions is also applicable in Missouri (and other states).  This case also illustrates the potential cost to an employer of not complying with all wage and hour laws.

The case is Ridgeway v. Wal-Mart.

Missouri Minimum Wage Increase

Missouri’s Minimum Wage increased to $9.45 an hour on January 1, 2020.  A few employers are exempt from this law, including public employers and certain small businesses. There is also an exception for “tipped employees” (such as waiters and waitresses, who must only be paid 50 % of the minimum wage ($4.725 per hour) so long as they earn enough in tips to make their compensation above minimum wage for all hours worked.

If you have questions about the minimum wage or about other wage and hour laws, you should talk to an employment attorney soon.  If you are an employer who does not pay eligible employees at least the minimum required for the hours required, you could be subject to hefty fines in addition to the back wages you should have paid.  If you are an employee and think you might have been underpaid, you should not wait to seek legal advice because some of your claims could become time-barred if you wait too long.

Missouri appellate court finds individual owner of LLC to be a “statutory employer” and potentially liable for unpaid wages.  In a decision issued on December 17, 2019, the Missouri Court of Appeals, Western District, found that an individual who owned the LLC which employed the plaintiff was potentially liable, as an individual, for unpaid wages owed to that employee under the federal Fair Labor Standards Act and the Missouri Minimum Wage Law.  The court applied the “economic reality” test and determined that the owner was an “employer” along with the LLC, because he retained the ability to hire and fire employees, supervised and controlled work schedules, determined the rate of payment, and maintained employment records. Under this ruling, the individual owning the LLC is potentially liable even though the LLC was officially the “employer.”

The case is Vance v. Johnson.

Missouri appellate court considers the relationship between FMLA and disability.  In a recent case, the Missouri Court of Appeals considered and clarified the difference between a condition that qualifies for leave under the Family Medical Leave Act (FMLA) and a condition that constitutes a “disability” under the Missouri Human Rights Act (“MHRA”). Because these two statutes use different definitions, a condition that qualifies under the FMLA is not necessarily a “disability” and vice versa.  However, a condition can also meet the definitions of both statutes.

Since these statutes (as well as the federal ADAA) create different rights and duties, it is important for employers and employees to properly classify a condition so that applicable statutes are not violated.  If you are an employer seeking clarification about a particular employee’s request, or an employee who thinks you were treated unfairly in regards to an FMLA or accommodation request, you should seek legal advice from an employment lawyer.

The case is Gaal v. BJC Health System, ED107045.

Final Overtime rule contains change to calculation of bonuses for salaried workers – The United States Department of Labor recently introduced its final rule relating to the calculation of overtime under the Fair Labor Standards Act. The new rule—which goes into effect on January 1,2020—makes several changes to the way employers must calculate and pay overtime.  In addition to raising the minimum salary amount at which an employee can be considered exempt from overtime or considered a “highly compensated employee,” the rule allows a nondiscretionary bonus or incentive payment (such as a commission) to be used to satisfy up to 10 percent of the minimum salary requirement.  Employers who want to take advantage of this provision should understand this provision (and obtain all needed legal advice) before the start of the new year in order to maximize this provision.

If you have questions about this or any other provisions of the FLSA, please contact our employment attorneys.

In a recent case, the Missouri Court of Appeals considered the question of whether a former employer can be sued for negligence after giving a positive reference to a former employee who then abused a child in the course of his new employment.  The court held that there is no currently-existing common law duty in Missouri that would impose liability in this case.

The case is Doe by and through Doe v. Ozark Christian College, 579 S.W.3d 220 (Mo. App. S.D. 2019).

If you have questions about what a former employer can and cannot say in response to an inquiry or reference request, you should contact an employment law attorney.

Kansas City passes ordinance prohibiting salary-history questions.  Kansas City, Missouri has passed an ordinance, effective on October 31, 2019, that prohibits employers from asking applicants about their previous salaries or using past salary information to decide whether to offer an applicant a job.  The ordinance also has a non-retaliation provision which prohibits an employer from refusing to hire an applicant because that applicant refused to provide salary history to the employer.

The ordinance has multiple exceptions.

If you have questions about what questions can be asked in an interview or considered in connection with a hiring decision, you should contact an employment law attorney.

DOL has issued final rule for exempt salary level

On September 24, the U.S. Department of Labor published its “final rule” raising the minimum salary level for exempt employees.  That rule means that, effective January 1, 2020, an employee must be paid at least $679/week ($35,308/year) in order to be considered “exempt” under the “white collar” exemption.  Employees who were previously under that exemption who are not paid according to the new salary requirements must generally be paid overtime for in excess of 40 hours per week.

The new rule is an increase from the current minimum of $455/week ($23,660/year).  In 2016, the USDOL issued a rule which would have increased the minimum to $913/week ($47,476/year), but that rule was blocked by the courts before it took effect.

Before this rule takes effect, employers with salaried exempt employees should consider whether to increase those employees’ pay or to make those employees eligible for overtime.  If you are an employer or an employee who has questions about how this or other wage and hour regulations affect you, you should contact an employment law attorney.

U.S. Supreme Court considers whether Civil Rights Act protects LGBT workers from discrimination

In two separate cases this week, the United States Supreme Court considered whether federal law’s protection against discrimination “based on sex” extends to employees who were terminated because of sexual orientation or gender identity.  The law says that it bans discrimination based on race, religion, national origin and sex.  The question before the court was rather “sex” includes only a person’s designation as  biologically male or female, or whether it also includes a person’s sexual orientation, gender identity, or transition from one gender to another.

In states like Missouri which do not provide separate discrimination protection based on gender identity or sexual orientation, the Supreme Court’s decision will likely be the deciding factor on whether people who are fired or harassed at work have any viable legal claim.  At CVDL, we will continue to monitor this important and evolving issue.

Social Media policies and the workplace

A current hot topic is what employers can and can’t allow in a social media policy.

Generally speaking, an employer can restrict an employee’s use of social media during work hours, but what about other times?  As an employee, can you be fired for something you posted on social media? What about something you merely “liked?”  Can your employer restrict your social media usage away from work? Can your employer require you to (or forbid you from) identifying yourself as an employee on social media?

As an employer, can you prohibit an employee from certain social media activities? Can you discipline or fire an employee for something he or she posts on social media?

The answers to these questions likely depend on a lot of factors, such as what type of business the employer operates, whether the posts were related to that business, whether the posts were political in nature, the nature of the employee’s job, and whether the employer has a written social media policy in place.  If you have questions – either as a business/employer or an employee – about social media and the workplace, one of our employment attorneys would be happy to discuss with you.