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Legal Frequently Asked Questions

DISCRIMINATION

What is employment discrimination?

Discrimination generally occurs when an employee is intentionally treated differently because of the employee`s race, color, religion, national origin, disability, gender, sexual orientation (depends on state) or age because of the employer`s system, such as its hiring process, has a negative effect on people in the protected categories or classes.

To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of the employer`s system had an unintentional discriminatory effect, it is said to have a disparate impact.

Even if the employee`s evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a "business necessity" for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer`s justification, was the true reason for the action. What is the difference between disparate impact and disparate treatment? Discrimination on its face is disparate treatment. However, rules or policies that are facially neutral can have a disproportionate impact on minorities and other members of a protected group. This is called disparate impact.

FAMILY MEDICAL LEAVE ACT (FMLA)

What does the federal Family and Medical Leave Act (FMLA) govern?

The Family and Medical Leave Act (FMLA) allows certain employees up to twelve weeks of unpaid, job-protected leave per year. The FMLA calls for notification responsibilities. It also requires that group health benefits be maintained during the leave. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women. A number of states have also enacted family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by FMLA. In those situations where an employee is covered by both Federal and State FMLA laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law.

What is the purpose of the Family and Medical Leave Act?

The Family and Medical Leave Act 1993 (FMLA) was created as a way of providing employees with a means of coping with the challenging demands of family and home. It applies to companies with 50 employees or more in one location or 50 employees within a 75-mile radius. It helps workers, who for personal reasons may require time off. It allows up to 12 weeks unpaid leave and the employee at the end of that period is entitled to return to the same or similar position that they were in before they left. The Act covers the following situations:
  • chronic or terminal illness of a spouse or close relative;
  • birth or adoption of a child;
  • employee illness.
The employee must have been with the company for more than one year and have worked more than 24 hours a week in the year preceding the requested leave. Usually, the employer will require a doctor`s certificate to corroborate the circumstances.

Who is covered by the federal Family and Medical Leave Act?

Only employers that carry 50 or more employees at a worksite, or within 75 miles, are covered by the FMLA. However, for an employee to be eligible, he or she must have worked for the employer for at least one year and must have worked at least 1,250 hours (an average of 25 hours a week) during the previous 12-month period. An employer may deny leave to any key employee who receives a salary in the top 10% of the work force and whose leave-taking would cause economic harm to the employer.

AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

What does the Age Discrimination in Employment Act (ADEA) govern?

It is unlawful for an employer, employment agency or Labor Union to discriminate in employment against anyone because of his or her age. This includes refusing to hire an individual or firing an employee. It also includes an individual`s compensation, terms, conditions or privileges of employment and all employee benefits.

Who is covered by the Age Discrimination in Employment Act?

The ADEA applies only to persons who are over 40. There is no upper age limit. The ADEA applies to employment practices in both the private and the public sector, including employment agencies and Labor Unions. Using age is not unlawful where age is a bona fide occupational qualification reasonably necessary to the normal operation of the job. Also, state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.

How is an employee protected from age discrimination?

Under the Federal Age Discrimination in Employment Act (29 U.S.C. 621 to 634), a worker over the age of 40 is protected against discrimination for age reasons, including being forced to retire. The Act is enforced by the EEOC. The employee must have been performing their job in a way that met their employer`s expectations up until the point of alleged discrimination.

What administrative body may impose remedies for a violation of the Age Discrimination in Employment Act?

Complaints are to be sent to the Equal Employment Opportunity Commission (EEOC) within 180 days of the occurrence of the discriminatory act, unless the alleged misconduct occurred in a state that has an age anti-discrimination agency. If so, charges should be filed within 300 days of the alleged unlawful practice or within 30 days after receipt of notice that the state proceedings have been terminated; whichever is earlier. Any individual civil action may be filed 60 days after a charge has been filed with EEOC or state deferral agency. There is a statute of limitation on lawsuits of 2 years. Three years for willful violations.

CIVIL RIGHTS ACT OF 1964 (TITLE VII)

What does the Civil Rights Act of 1964 (Title VII) govern?

Title VII prohibits discrimination in employment including public accommodations, governmental services and education. An employer cannot fail or refuse to hire or refuse to promote, fire anybody or discriminate with respect to compensation, terms, conditions and privileges of employment based on race, color, sex, religion or national origin. An employer cannot limit, segregate or classify employees or applicants in any way that would deprive or tend to deprive employment opportunities or that adversely affects the status of an employee because of race, color, sex, religion or national origin.

Who does the Civil Rights Act of 1964 cover?

Employers with 15 or more employees, affecting commerce, and whose employees have been employed for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year, are covered by Title VII. Title VII applies to all employers, potential employers, unions, employment agencies and joint labor-management training committees. Title VII, through subsequent amendments, applies to state and local governments, governmental agencies, and political subdivisions. Religious organizations are exempt when based upon religion.

What Fees are charged for representation? 

The fees charged by The Sigler Law Firm, PLC are a bifurcated fee agreement for employees meaning that there is an engagement fee which is due upon taking the case and a contingent component meaning that there is a percentage paid out of any settlement you collect from the company.  There are payment plans available and the Firm attempts to make the fees accessible to anyone to ensure that they have proper legal representation,  Remember, if you have an Employment Law claim, you must choose an attorney that specializes in Employment Law.  This is a very specialized area of the law.

Corporate Clients are charged an hourly rate for consulting and/or litigation services.  For privacy of our clients, we do not disclose the hourly amount on our website.  However, our rates are just a fraction of the cost that large firms charge yet our clients receive the same expertise in a more responsive, small firm environment.

Please feel free to contact us with any questions or for a free telephone consultation: Danielle B. Sigler, Esq. 248-932-3500 Ext. 237.
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