Doumar Martin represents employers and employees before federal and state courts and administrative agencies. Our attorneys have experience resolving a variety of employment law issues.

• Employment discrimination;

Federal law prohibits employment discrimination based on race, color, religion, sex, national origin, age, disability, or gender. Many states and localities also prohibit discrimination based on sexual orientation or gender identity. Other personal characteristics that raise potential discrimination issues are marital or family status, personal appearance, health, medical history, physical limitations, country of origin, citizenship, and credit history. Federal law requires prior disclosure and authorization before an employer may inquire into an applicant or employee’s credit history, and inquiries into arrest records are generally prohibited by federal law. Federal and state law also limit employer inquiries into criminal convictions in many circumstances.

An employment discrimination claim generally begins with the filing of a charge of discrimination with a human rights agency. This can be done through the federal Equal Employment Opportunity Commission (EEOC) or through a state or local human rights commission. Short deadlines and statutes of limitations apply to discrimination claims, and thus employees must file quickly to preserve their rights.

It is important for employers to preserve evidence as to the reasons for employment decisions so that they can protect themselves from potential law suits. An employee should also document circumstances surrounding their employment or discipline to help establish the relevant facts.

• Harassment and hostile work environment;

Employees should not have to work in an environment of fear and intimidation, and employers know the value of establishing a safe and welcoming workplace. However, not every act of “harassment,” as that word is commonly used, is actually prohibited by law. Employees may experience harsh and even unfair treatment, but the law only prohibits harassment that is based on employee attributes that are protected under the law.

To qualify as “harassment” or a “hostile work environment” under the law, unwelcome workplace conduct offensive generally must be based on race, national origin, gender, disability, age or religion and must be so severe or pervasive as to alter the employee’s terms and conditions of employment.

• Retaliation;

Claims of retaliation are the most common type of discrimination alleged in EEOC filings, and for good reason. Rather than investigate an employee’s complaint of harassment or discrimination, an employer may instead punish the complaining employee. This is generally unlawful even if the employee’s complaint later turns out to lack merit.
The EEOC recently issued Enforcement Guidance on Retaliation and Related Issues and summaries of its guidance in the form of a fact sheet for small businesses and a question-and-answer document. These documents describe the major expansion of retaliation law in 2006 with the U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White. In that case the Supreme Court removed the requirement that retaliation affect tangible employment terms (such as pay or title) and allowed claims based on a “materially adverse action” that would reasonably discourage future complaints.

• Family and Medical Leave Act (FMLA);

Federal law also requires employers with 50 or more employees in a 75-mile radius of a workplace to provide eligible employees with up to 12 work weeks of leave during a 12-month period to care for a new child, for serious illness of an employee, or a serious illness of an employee’s family member. Many states and counties have also enacted paid sick and family leave laws, which allow employees to accrue guaranteed leave during their employment to use as a matter of right for qualifying reasons.

The Department of Labor has developed a standard form that employers can send health care providers to gather information about the date the condition began, probable duration of the condition, medical facts about the condition and whether the employee needs a reduced schedule. Employees must provide similar documentation about the serious medical condition of a family member. The FMLA must be set forth in any Employees’ Handbook distributed by an employer. Thus, if the employer has an Employees’ Handbook, it is required by law to include therein the provisions of the Family Medical Leave Act.

• Employment agreements

Throughout the United States, employment relationships are generally at-will, meaning that either the employee or employer can terminate the employment at any time for any reason or no reason. An employer and employee can contract, however, for employment for a set duration or term or period of time. Oftentimes, such agreements will specify that neither employer or employee can end the agreement during that term unless the employer has a good cause to fire the employee or the employee has a good reason to resign. In some instances, a company’s offer letter or employee manual or handbook will specify whether an individual is an employee at will or entitled to additional protections.

• Non-competes and NDAs;

Most states decide whether a non-competition agreement, non-disclosure agreement, or other restrictive covenant is valid and enforceable upon its reasonableness. While restrictive covenants are generally disfavored, and will be strictly construed against the company and in favor of the employee, the criteria for determining reasonableness differ somewhat from state to state. Several states in the country bar the enforcement of restrictive covenants outright except in certain limited circumstances.