You’re considering suing your employer for discrimination, unpaid wages, or harassment. Before you do, prepare yourself for the realities of suing an employer. These are the 10 things you need to know about legal claims against an employer.
The Process Can Take a Lot of Time
Legal claims against an employer can be a long, drawn-out process. People may not realize that these cases can take months or even years to settle or bring in front of a judge. It’s in an attorney’s best interest to aim for a quick settlement, but every case is different. If you think your claim will be settled in a week or two, you need to prepare for the reality. It often takes a year to a year and a half.
Treatment That is Unfair Isn’t Always Illegal.
Not all treatment that you feel is unfair is considered illegal. You cannot be discriminated against regarding religion, disability, race, gender, or nationality. Other unfair treatment may be legal, even if it doesn’t feel like it should be.
For example, you are slightly overweight and apply for a job at a local restaurant. The owner interviews you and says he can’t hire you because he doesn’t believe you’re capable of standing for seven hours straight. It’s unfair, sure, but it’s also not illegal. You wouldn’t have a case for discrimination as obesity is not a protected class, yet.
Some states allow that severe obesity can be considered a disability, so if you were diagnosed with severe or morbid obesity, that would be a different situation. That’s why it’s essential to talk to an attorney and be sure of your rights.
You Often Don’t Need to Have Money in Hand to Hire an Attorney
If you’re worried about affording the legal fees, ask one simple question when you call an employment law attorney. Ask if the attorney works on a contingency fee basis. This means the attorney doesn’t require any money until your case is settled or decided. At that point, the attorney takes their fee from your award or settlement offer. You don’t have to have cash in hand at the start.
Pregnancy Counts as a Disability in the Eyes of the Law
Discrimination in the workplace can be based on gender, sexual orientation, race, religion, or disability. Pregnancy counts as a disability. You are to be treated the same way anyone with a disability is treated at work.
You go to your bosses before you start to show and inform them of your pregnancy. You’re taking longer bathroom breaks due to morning sickness, and you’re penalized because of it. That’s not allowed. Unless you’re away from your desk so much that the company’s sales or productivity are impacted, and no one else can cover you when you’re away from your machine or desk, you are allowed longer breaks.
Refusing to Do Your Job is Legal if the Work Isn’t Safe
In California, Section 6311 of the California Labor Code protects you from being forced to do any task that’s unsafe. If you feel a job will put your health or safety at risk, you’re allowed to refuse to do it. It would be best if you alerted your supervisor first with written notification that’s witnessed by others. Keep a copy for your own records. Let your boss know what is unsafe and see if the company takes steps to heighten safety.
Wait to see what happens. If your employer still pushes you to do the job, you have the right to say no. You should file a complaint with California OSHA and provide the evidence you saved showing that you tried to get the unsafe condition corrected.
Suppose you run a machine that melts and extrudes plastics. The fumes are typically vented through an exhaust fan, but the fan stops working. You’re now breathing the melted plastic fumes throughout your shift. It’s making you feel dizzy, and you can’t stop coughing. You tell your supervisor that the exhaust fans need to be repaired before turning the machine back on, and you’re told to turn it back on or lose your job. You should talk to OSHA and file an unsafe workplace claim.
You Have to File Before the Statute of Limitations Passes
A workplace violation has a statute of limitations. It used to be a year, but that changed. California increased the statute for other complaints to three years with California Assembly Bill 9. If your complaint is related to discrimination in the workplace, you now have three years to file the complaint.
In addition to the one- or three-year statutes, tolling (a temporary stop of the clock) may extend the time you have. The regulations stop for 90 days after the discovery of the facts. Tolling is a year if it’s taken more than three years to identify the employer, if the case relates to Civil Code §51.7 (intimidation or threat of violence), or the victim isn’t yet 18 years of age.
Employees May Talk to Your Bosses, So You Shouldn’t Talk to Them About It or Post on Social Media
Don’t assume your co-workers will support you throughout your complaint. Please don’t talk to them at all, as some workers may be closer to management than you realize and spill everything you tell them. Do not say anything on social media, even if your account is private. You have no control over who takes screenshots of the things you say and shares them with others.
Your Employer Cannot Fire You or Demote You For Filing a Complaint
When you file a complaint, no matter if it is related to a disability, harassment, unpaid wages, or discrimination, you cannot be punished. You must be treated in accordance with the laws, and that means fair, equal treatment.
Your boss moved you to a new department after you announce your pregnancy and ask for additional breaks to sit down. Accommodating you wouldn’t have caused undue hardship to your company. The move led to a demotion, so your pay is lower and the hours are worse. You were in a 9 a.m. to 5 p.m. position, and now you’re 3 p.m. to 11 p.m. That is illegal. If the company feels a transfer is in your best interest, you must be given a choice to accept it, and it must be at the same or higher pay.
Whistleblowers Are Also Protected From Disciplinary Actions
You filed a complaint against your employer after overhearing your co-worker harassing the new intern. The intern didn’t speak up and file a complaint, so you did. You’re a whistleblower in the eyes of the law, and that grants you protection from disciplinary actions.
Suppose you overheard your co-worker telling the intern that she’d quickly get a promotion if she went on a date with him. You go to your boss with that information, and you’re demoted to a different job. You’ve been penalized for whistleblowing, and that’s illegal. You do not have to be the victim to file a complaint.
Your Life Can Become an Open Book
Finally, when you file a claim against your employer, the defense will do everything possible to make you look guilty, especially if the case goes to trial. Your life will be scrutinized. For example, your complaint is against your employer for a denial of FMLA leave. Your employer doesn’t believe you were really sick, but you know you were. The defense attorney will go through all of your medical records, actions, and conversations to prove that you were not sick.
While these situations may make you worried about filing a claim against your employer, don’t make a rash decision. Remember that with the help of an experienced employment attorney, you’ll have guidance and support throughout the process. Call Shegerian Conniff to discuss your case. The consultation is free, so you don’t pay anything to learn more about your options.