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Are You Being Wrongfully Terminated? 8 Signs

Are You Being Wrongfully Terminated? 8 Signs

About 40% of Americans have been fired from their job at some point in their life. Getting dismissed from your job is upsetting and something no one wants to face. Indiana is similar to many other states because it recognizes the at-will employment doctrine. A company can fire its employees at any time for almost any reason. However, this does not mean businesses are free to treat their employees however they like. American workers have certain protections and rights afforded them through law and regulation. The team at Goodin Abernathy represents dismissed employees whose former employer violated these protections, resulting in a wrongful termination. If an employee suspects they have been wrongfully terminated, they should look for one of these eight signs. 

1. The Reason Is Vague 

An employer should be able to provide its employees with a clear explanation as to why they are dismissing an employee. If an employee requests the reason and the employer can’t or refuses to provide one, this could signify wrongful termination. As an employee, you have the right to request the reason in writing from the employer. However, if the employer refuses to provide them with this information in writing, it could be helpful to speak with a lawyer about a potential wrongful termination claim. Because every situation is different, an attorney will work with an employee to determine the viability of their potential claim. 

2. Suspected Discrimination 

It is illegal for an employer to fire someone solely based on their membership of a protected status. In addition, an employer cannot fire someone based on the perception that they belong to a protected group. The Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination laws in the United States. These laws include the Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and The Civil Rights Act of 1991, and others. Each of these laws protects individuals in the workplace to prevent discrimination based on the protected classes below. 

  • Race
  • Sex
  • Gender 
  • Nationality
  • Disability
  • Religion 
  • Skin color
  • Ethnicity
  • National origin
  • Pregnancy
  • Sexual orientation

It is important to understand that an employee can belong to a protected class and still be fired for lack of performance or another reason. Speaking with an experienced employment lawyer can help determine if an employer violated one of these employment protection laws. 

3. Fired For Doing a Protected Activity 

As a matter of public policy, employers cannot fire someone for performing a protected activity. This would include an incident of harassment or cooperating with an EEOC investigation. This is to protect people, so they don’t have to worry about their employment when tending to personal matters. It is a matter of public interest that people do not lose their jobs when they need them the most simply because they have a family or medical issue to take care of. An example of this would be getting pregnant or caring for a sick family member. These are protected under the Family and Medical Leave Act (FMLA). 

4. Experienced Harassment

Unfortunately, harassment still exists in the American workplace. While dealing with harassment at work is upsetting, it is even more so when it leads to termination. There are two ways an employee can be wrongfully terminated after experiencing harassment. In the first instance, an employee could face termination after rebuffing advances. This often occurs when an individual in a managerial role makes sexual advances toward someone in a lower position. 

In a second scenario, an employee could be terminated after submitting a report of harassment. The company attempts to minimize the harassment by terminating the employee who is raising the alarm. Employees have a right to work in a harassment-free environment. Should they experience harassment from a fellow employee, they should feel safe in their position to report such treatment. 

5. Reported Illegal Activities 

There are laws in place to protect employees when they report misconduct or illegal activities. This is to encourage employees to say something when they see wrongdoing. A company cannot legally dismiss an employee because that employee came forward with a report of fraudulent, unethical, or illegal behavior. This would be retaliation through wrongful termination. This protection extends beyond the employee’s reporting. It also protects an employee participating in the investigation, lawsuit, or hearings about the reported inappropriate activity. If they are let go shortly after making a report of this nature, there is a possibility that the two events are related. Speaking with an employment retaliation lawyer can help employees understand their rights and possible wrongful termination case. 

6. Performing Military or Civic Duty 

As American citizens, we are sometimes called upon to perform obligations for the government. This could be responding to a letter calling them to jury duty or voting as a civilian. It could also be reporting to duty as a military service member. An employer cannot fire them for performing these government-called duties. 

7. Asserted Employee Rights

Employees should be able to assert and exercise their rights without fear of termination. For example, an employer can’t fire an employee for enforcing their right to payment of wages earned or workplace safety. Should they get injured while working, their employer can’t fire them for reporting a workers’ compensation claim. 

8. Contract Violation 

The majority of workers are at-will. This means there is no specific contract outlining the terms of their employment. However, some employees have a contract outlining the specific terms of the working relationship between the employee and employer. If an employee has this type of contract, getting fired before contract completion could violate the agreement. They could be entitled to compensation depending on the terms of their employment contract

Even if an employee is at-will, the company may have an agreement or policy protecting employees. If the employer fired an employee in direct violation of its own policy, this could signify wrongful termination. 

Talk With a Lawyer About Your Dismissal 

Getting dismissed from your company is never an enjoyable experience. It can feel stressful as you sort out your current situation and seek gainful employment. However, your firing may not be so straightforward. Wrongful termination can be subtle, requiring more in-depth analysis. Consider speaking with a wrongful termination lawyer if you suspect you are a victim of wrongful termination. 

Schedule a consultation with one of our wrongful termination attorneys to discuss the circumstances surrounding your dismissal.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

Despite bitter partisan divide in Washington, both the House and Senate recently passed H.R. 4445 which will effectively end the forced arbitration of sexual assault and sexual harassment cases. (Read here.)

What does this mean? Many employees may not even be aware that they signed an arbitration agreement when they accepted the offer from their employer. Often these clauses are buried in employment agreements, and employees have no knowledge or understanding of what they even mean. However, employers favor forced arbitration because it keeps them out of court. The effect of forced arbitration clauses is that they close the courthouse doors for many victims of sexual assault or harassment.

When a new client comes to me with a claim of sexual assault or harassment, one of the first things we want to know is whether they signed an arbitration agreement. If a victim is bound by an arbitration agreement, then we can’t file a public lawsuit. Arbitration agreements empower employers to make low ball offers to settle and insist on confidentiality. These agreements effectively take away a victim’s right to go public with the allegations and exposing the perpetrators.

Many defense lawyers are surmising that this will result in a huge increase in the number of lawsuits being filed by victims, and larger settlements because corporations are no longer going to be able to force victims into a confidential arbitration proceeding. The guaranty of confidentiality means less exposure and publicity for perpetrators and the corporations for which they work.

While it remains to be seen whether this will cause an increase in lawsuits, this can certainly be viewed as a win for victims of sexual assault and harassment. The law basically amends the Federal Arbitration Act to make it easier for victims to file suit in State or Federal Court despite having previously agreed to arbitrate those claims. Victims will now have the right to choose to file their claims in court, rather than being forced by their employers to arbitration, thus allowing their claims will be heard by a judge, not an arbitrator.

The effects of the new law go beyond just giving victims their “day in court.” This will now force employers to effectively address sexual assault and harassment in the workplace. Gone are the days of paying off victims and buying their silence with a confidentiality agreement. By shining the light of a public proceeding on a perpetrator, it may prevent them from finding any future victims.

If you are a victim of sexual assault or harassment in the workplace, you need to know your rights. Call one of our experienced employment law attorneys for a free consultation

Related Articles:

– If you think you are working in a hostile work environment, but don’t know for sure, check out this article on what constitues a hostile work environment.

Discrimination Due to Special Needs

Discrimination Due to Special Needs

If an employer has discriminated against you because of your special needs, he or she is may be violating federal law as well as state and local laws.

In 1990, Congress passed a piece of civil rights legislation called the Americans With Disabilities Act (ADA). Title 1 of this legislation specifically prohibits workplace discrimination against individuals with disabilities. Such prohibitions apply to any business that has 15 or more employees on its payroll. The ADA also offers protection to individuals such as spouses or parents who may be subject to bias on the basis of a close relationship to a person with a disability.

Four other federal laws also specify protections for psychologically or physically challenged individuals:

The Rehabilitation Act

Section 501 of the Rehabilitation Act prohibits disability-related bias by federal employers and mandates affirmative action programs that will increase the number of employees with disabilities in federal workplaces.

The Workforce Innovation and Opportunity Act (WIOA)

Section 188 of the WIOA prohibits disability-related bias on the part of any employers who receive financial or programmatic assistance under the terms of the WIOA.

The Civil Service Reform Act (CSRA)

The CSRA contains language that stipulates against disability-related bias that targets both Civil Service employees and prospective employees.

Additionally, all 50 states have laws in place that prohibit workplace bias against individuals with disabilities though in some states, these laws only pertain to workplace discrimination on the part of public employers.

What Is a Disability?

The ADA doesn’t contain language that categorizes all the physical and psychological conditions that constitute disabilities. Instead, the ADA imposes a standard: If a condition has a negative effect on an individual’s ability to carry out the routine activities of daily life, then it constitutes a disability.

The ADA’s definition includes people who’ve been impaired in the past even though they may not be impaired when they’re employed or when they apply for employment. The ADA’s definition also includes people who are able to carry out major life activities but who are affected by a condition that is typically classified as a disability. Disabilities also include injuries that may prevent employees from working in their customary capacity for a limited amount of time.

Reasonable Accommodation

The ADA requires employers to make “reasonable accommodations” to either job duties or to the layout of a workplace that will enable an employee with special needs to do his or her job adequately. What might these accommodations reasonably include? Here are a few possibilities:

• Physical modifications such as raising or lowering the height of desks for people in wheelchairs or installing screen magnifiers on computers that are used by individuals with visual impairments.

• Moving a workstation closer to a restroom for a worker whose disability includes bladder or bowel control issues.

• Allowing a more flexible work schedule and use of leave time so that a worker can pursue medical treatments. This accommodation may also require granting additional amounts of unpaid leave time.

Under the ADA, however, employers are not required to make particular accommodations for physically disabled workers if those accommodations would impose “undue hardship.” The burden of proof will be on employers to prove that an accommodation an employee has asked for is too costly or too disruptive to be implemented. Both courts and the U.S. Equal Employment Opportunity Commission (EEOC) , which is the federal agency charged with enforcing ADA compliance, will look at a variety of factors here, including potential tax credits and the disabled employee’s own willingness to supply the accommodation or to pay for its costs.

Workplace Harassment

Harassment is considered to be a type of bias whether or not an individual is affected by a disability. The ADA has language that prohibits harassment as does the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

In its broadest sense, harassment is any unwelcome conduct that’s instigated by an individual’s race, color, sex, age, religion, place of national origin or disability. However, not every offensive remark constitutes unlawful harassment. In order to meet that standard, the offensive conduct must be a condition of continuing employment, or it must also create a workplace that a “reasonable person” would consider a hostile or intimidating environment.

The harassing individual can be anyone who is connected with a workplace, including a company’s owner, its managers, its employees, its independent contractors or even individuals who are not employees as might be the case with a vendor who delivers inventory on a regular basis. A harassment victim doesn’t have to be the individual who’s actually subject to unpleasant behavior, either; he or she can be someone who overhears the harassment and is deeply affected by it.

Employers are liable for harassment on the part of employees over whom employers have control. They’re also liable for harassing behaviors on the part of supervisors particularly if that harassment has negative implications for employment unless employers can prove either that they tried to correct the harassing behaviors or that the employee reporting the harassment did not take advantage of corrective opportunities offered by the employer.

Protect Your Rights

If you’re experiencing an unfair workplace situation that’s related to your disability, you have legal rights, and an experienced attorney can help you protect those rights. You are looking at tight statutes of limitations, so it’s important to contact a lawyer as soon as possible. In most instances, you will need to file a charge with the EEOC within 180 calendar days of the time you were refused accommodation or were subjected to harassment. (If you’re a federal employee, that statute of limitation is only 45 days.)

A discrimination attorney can evaluate your situation and help you decide whether or not your case is worth pursuing. These claims can be difficult to prove without concrete evidence of an employer’s bias, so it’s important to work with a legal professional who can help you compile the necessary evidence. An attorney can help you negotiate with your employer to get the accommodations that are your right. In worst-case situations, if your employer isn’t willing to make the accommodations that would help you keep your job, a lawyer may be able to help you receive compensation for your employer’s unlawful actions.

Employment Law Resources

Employment Law Resources

I often receive calls from potential clients who are confident that they have been victims of discrimination or harassment, or that they have been wrongfully terminated, yet they may not be aware of the legal meanings of those terms. The law protects employees from discrimination and harassment based on Race, Color, Sex, National Origin, Age (over 40), Disability, Pregnancy, and Genetic Information. To be clear, Indiana is an “at will” employment state. That simply means that most of us work at the will of our employers. Stated another way, we can be fired for any reason (or no reason at all) just not a discriminatory reason. For example, there is nothing illegal about an employer firing an employee based on the quality of his or her work. But, it would be illegal to fire an employee based on their race or age, or gender. Rare is the case where an employer will actually say, “I am firing you because you are too old.” Therefore, we might have to infer the reason, based on other factors. Does your boss suggest that you are too old for the job? Do they ask you questions like, “When are you going to retire?” These types of things might suggest that age was a factor in your termination, even though the employer’s stated reason for firing you was because of “poor work performance.”

There are some really good resources available, through the Equal Employment Opportunity Commission (“EEOC”), that explain what is meant by wrongful termination, and how those laws apply to employees. The EEOC is the federal agency that is charged with enforcing anti-discrimination laws in the United States. In fact, most discrimination claims must first be filed with the EEOC before you can file a lawsuit against the employer. This process is known as “exhausting your administrative remedies.” Below are some links to some very useful information as it pertains to different types of Discrimination and Harassment:

Age Discrimination: https://www.eeoc.gov/age-discrimination
Disability Discrimination: https://www.eeoc.gov/disability-discrimination
Race/Color Discrimination: https://www.eeoc.gov/racecolor-discrimination
Sex Discrimination: https://www.eeoc.gov/sex-based-discrimination
Pregnancy Discrimination: https://www.eeoc.gov/pregnancy-discrimination

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. For more information on what constitutes harassment, you can go to the EEOC’s site by clicking the link below:

Harassmenthttps://www.eeoc.gov/harassment

Another type of prohibited activity is Retaliation. To be illegal, the retaliation in the employment context must be related to a “protected activity.” For example, if you complained to your Human Resources department that you were being discriminated against based on sex, and then you were immediately fired for engaging in that protected activity, that would be considered retaliation. Below is some useful information to help you understand what types of retaliation are prohibited by employers: https://www.eeoc.gov/retaliation

Lastly, we often get calls about how to collect unpaid wages. If the amount is less than $6,000, the best way to collect those wages is by filing an Online Wage Claim with the Indiana Department of Labor (“IDOL”). Below is a link to the IDOL’s Online Wage Claim Form along with instructions for how to proceed. It the amount is greater than $6,000, we suggest that call us for a free consultation with one of our attorneys that is familiar with Indiana’s Wage Claim and Wage Payment Statutes.

Indiana Department of Labor Online Wage Claim Form: https://www.in.gov/dol/2734.htm

As always, contact me – Chip Clark – if you need representation or advice on any of these subjects.

 

EEOC Issues Resolution

The Equal Employment Opportunity Commission (EEOC) issued a Resolution mourning the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery last week. In the resolution, the EEOC committed the agency to redouble its efforts to address institutionalized racism, advance justice, and foster equal opportunity in the workplace.

The EEOC advances opportunity in the workplace by enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

The anti-discrimination laws provide a limited amount of time to file a charge of discrimination. In general, a person needs to file a charge within 180 calendar days from the day the discrimination took place. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

If you have questions related to employment discrimination, harassment, or retaliation, please feel free to contact Goodin Abernathy.

What happens after I file a Charge with the EEOC?

What happens after I file a Charge with the EEOC?

Once the Charge is filed, it is sent to your employer, and they are given an opportunity to investigate the allegations and file a response. The employer may conduct the investigation internally, or, they may choose to hire an outside attorney to investigate the allegations in your Charge. The employer’s response is referred to as their “Position Statement.” Usually, the Position Statement filed by your employer will deny the allegations in your Charge, and may state other non-discriminatory reasons for any adverse employment action that has been taken against you. For example, the employer may state that you were a bad employee, that you missed too much work, or you did not follow instructions. If this is the case, the EEOC may ask you to provide additional evidence to support your claim of discrimination or harassment.

Once both sides have had an adequate opportunity to state their respective positions, the EEOC may move forward with an investigation.

WILL THE EEOC HELP ME SETTLE MY CASE?

If both sides agree, the EEOC may refer your case for a settlement conference, also called “mediation.” The EEOC has mediators on staff who will help both parties to resolve your dispute.
If both parties don’t agree to mediation, or if mediation is unsuccessful, the EEOC will move forward with an investigation into the allegations in your Charge of Discrimination. They can interview witnesses and request documents from either party to assist with that investigation.

HOW LONG DOES THE EEOC PROCESS TAKE?

Currently, an EEOC investigation can take up to 1 year. However, If the EEOC does not complete its’ investigation within 180 days after you filed your Charge, then you can request that they issue a Right to Sue letter. The Right to Sue letter allows you to file a lawsuit against your employer. It is very important to remember that you cannot file a lawsuit against your employer until you have received the Right to Sue letter from the EEOC.

Upon receipt of your Right to Sue Letter, you have 90 days in which to file a lawsuit against your employer. If you don’t file suit within 90 days, your claim will be barred.

What should I do if I feel I am the victim of harassment or discrimination?

The most important thing to do if you believe you are the victim of harassment or discrimination is to report it to your employer, preferably in writing. If you don’t report, your employer can always deny that they knew that any harassment or discrimination was occurring. Many employers have a handbook which should contain the company’s policies and procedures for reporting discrimination, harassment, or a hostile work environment. If you report harassment or discrimination, and your employer does not remedy the situation, please call me for a free consultation.