Find an Employment Law or Employee Lawyer

Also referred to as “labor law,” employment law governs all aspects of the relationship between an employer and employee. Affirmative action, discrimination, alien workers and visas, rights for disabled employees, personal leave, safety, racial discrimination, records retention and access, overtime compensation, recruiting, testing, discipline and the right to benefits coverage are among the top employment issues being regulated by a variety of federal and state laws. Some of the laws are longstanding; others are evolving because of new business practices and changes in lifestyles, manner of performing work, and the parties' expectations of each other.

Many employment processes and procedures are handled by companies' human resources (HR) departments; this may include a combination of in-house managers, the technology of an HR information system, and even an outsourcing service provider. Even so, lawsuits are on the rise, particularly in the area of discrimination against employees who are over 40 years old; overweight; or are not of a preferred race, sexual orientation, religion, pregnancy or military status.

Under Title VII of the Civil Rights Act of 1964, employees of companies with 15 or more employees and engaging in interstate commerce are protected from discrimination. Under Title VII, the Equal Employment Opportunity Commission (EEOC) was created to enforce employee rights. Subsequent federal laws, such as the Fair Labor Standards Act, Americans with Disabilities Act, Family Medical Leave Act, and OSHA regulations for safety have been added to the employment law arena. Many state, local and industry regulations also govern the treatment of employees.

Depending on a company's expertise in employment law, litigation is either the last resort or the first resort of employers and employees alike in defending their rights from wrongful acts of the other party.

Employment Agreements

In addition to the laws, a variety of signed agreements are becoming crucial aspects of employment litigation. Such binding legal contracts include non-competition agreements, non-disclosure agreements, non-solicitation agreements, employment agreements and separation agreements.
In a non-competition agreement, an employee agrees not to compete with the employer by joining a competitor firm after termination. A non-disclosure agreement prohibits the employee from revealing confidential or trade secret information. Signing such agreements is often a prerequisite for being hired.

A non-solicitation agreement prohibits a terminating employee from soliciting the former employer's customers, prospects and existing employees. State courts are the jurisdiction for enforcing employment agreements.

Separation agreements are used most often in the case of departing management, technology and marketing professionals. Provisions in this type of agreement protect the employer's interests because of the knowledge retained by the terminating employee; these are particularly crucial in instances where there was no signed employment agreement up front. Separation agreements also address severance details.

Independent Contractors

Whether an individual performing work for a company is deemed an employee or an independent contractor is governed by the Internal Revenue Service laws. Because employers don't withhold taxes or pay unemployment and worker's compensation insurance for contractors, this is sometimes an attractive arrangement. But such arrangements are sometimes a way to avoid paying benefits to an individual while still expecting the individual to perform like an employee and/or for an indefinite period of time; thus it becomes an unfair labor practice.

An independent contractor cannot be treated like an employee, being told when, how and where to do the work; it is a contractual arrangement with mutually agreed-upon provisions and a stated length of term for the services. IRS rules describe a number of questionable practices in this area.

By Kathleen Goolsby           

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