THIS IS AN ADVERTISMENT

All posts by Bryan Cassis

Can My Employer Withhold My Last Paycheck if I Don’t Sign My Noncompete?

By | Employment Law | No Comments

Occasionally, employers will require employees to sign a non-compete contract during their employment. However, the one thing they cannot do is withhold your last paycheck if you fail to sign one. The Kentucky Wage and Hour statute says you can’t withhold an employee’s final paycheck for any reason. If a company does, they subject themselves to double liquidated damages (that means you can sue for double damages), plus attorney fees.

If you’re ever asked to sign any kind of document at work, you should take it home, read it thoroughly, and ask an attorney go read it as well. The document could be a non-coBig Officempete, severance agreement, or some other last chance agreement. These types of documents are usually written in large single spaced paragraphs with lots of provisions making them difficult to understand. You want to make sure they’re not trying to take away certain rights or benefits, so always read a document thoroughly. Often times, severance agreements will ask the employee to look over the document with an attorney, so you can approach your employer by saying your attorney suggested specific changes to a document.

If you’re actually in the process of being fired, there’s no need to rush to sign anything. (It’s not like they can fire you faster or harder.) Frequently, the reason terminated employees are asked to sign anything is for some sort of severance agreement where the employer wants the employee to waive their right to sue, in exchange for either being paid some amount of money or agreeing not to fight an unemployment claim.

If you’re handed any sort of document at work and are asked to sign it, always read it over thoroughly. Make sure you’re not signing away important rights or benefits. Ask an attorney for help when necessary. It can be difficult to approach your employer with your concerns, especially if you’re being let go.

If you feel you’ve been unfairly treated by your employer, or given a document to sign that you’re unsure of, please contact the Cassis Law Office at (502) 736-8100 to see how we can help.

Photo credit: Phil Whitehouse (Flickr, Creative Commons)

Can My Employer Require Me To Sign a Non-Compete Contract?

By | Employment Law | No Comments

For many new employees, one of the first documents they’re asked to sign is a non-compete contract, promising not to work for a competitor for a specified length of time. But the company is free to require an employee to sign the non-compete at any time during their employment, even if the employee has been there for several years. It’s completely legal, and it can be a condition of employment at the company.

I Like a Little Competition, J.P. Morgan cartoonThere are instances where a non-compete contract can be challengeable in a court of law however. If a company asks a single employee to sign a non-compete with the intention of firing them right afterward without informing the employee, this could be considered fraudulent abuse. It is a questionable case involving misrepresentation, and should be discussed with an employment law attorney. However, if management had everyone at the company sign one and then fire people shortly after, the non-compete would still be enforceable.

Non-compete contracts do have limitations though. A non-compete contract involves two aspects: time and geographic location. Most non-competes last six months to one year. Two years would probably be considered the longest acceptable duration. A four or five year non-compete could easily be fought in a court of law, and past cases have resulted in something called a blue pencil revision, where a judge can literally take a blue pencil and scratch out the five year time, and pencil in two years.

When it comes to geography, 50 – 100 miles of the company’s location is considered reasonable, although technology is shrinking the world and making competition global. Given this, I think a worldwide non-compete contract may one day be considered reasonable.

In the meantime, if you’ve been asked to sign a non-compete that you believe is too long or too restrictive, you may want to speak with an employment attorney. For more information, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: Wikipedia/Wikimedia Commons (Creative Commons)

When Does Older Workers Not Getting Hired Become Age Discrimination?

By | Discrimination, Employment Law | No Comments

Workers who are trying to find a job in their 50s and 60s are finding it very difficult to find jobs, because many times, companies aren’t willing to hire older workers. And while this is considered age discrimination, one of the protected categories in the Kentucky Civil Rights Act — it’s just as illegal to not hire someone because of age, race, or religion as it is to fire them — it’s very hard to prove.

Older workerIn my years as an employment law attorney, I’ve had maybe one discriminatory refusal to hire a worker because of age. The problem is, it’s virtually impossible to prove age discrimination unless the employer says something stupid during the interview, or told the interviewee that their age was the reason they weren’t being hired.

If there’s a distinct pattern that someone who’s 55 is capable and competent, but is not getting hired, without that proof, we just can’t show that the person is being discriminated against. You need a situation where the employee goes in for an interview, doesn’t get hired, and either the HR person or employer says “we like you but we’re just looking for someone younger.” Even better, if they said this in an email, that’s the written proof you need.

While people can often say and do things they shouldn’t, this is a pretty rare instance. But it’s not unheard of. I once had a case where an employee went on an interview, and said he had a learning disability. He was forthright about the disability in the interview, and stressed that he could still do the job. My client said the employer said he didn’t want to hire my client because of the disability. We pursued it as a discriminatory refusal to hire, but the employer denied saying such a thing, which put the burden of proof back on us.

Refusal to hire cases can be very tricky because of something called disputed intent. This involves the intent of the hiring manager as he or she makes the decision not to hire someone. As the Second Circuit Court has said, “Rarely will there be a smoking gun evidence of discrimination.”

If you believe you’ve been discriminated against because of your age, whether you’ve been fired or not hired, and feel a legal response is your best option, please contact the Cassis Law Office at (502) 736-8100 to see how we can help.

Photo credit: Viewminder (Flickr, Creative Commons)

What is Sexual Orientation Harassment?

By | Employment Law, Sexual Harassment | No Comments

Despite the recent legal changes that recognizes same-sex marriages, people can still be fired in Kentucky for being gay. And if they are harassed at work for being gay (it’s called sexual orientation harassment, there’s nothing that can legally be done.

According to the Kentucky Civil Rights Act, the only categories that are protected are those of age, gender, race, disability, nation of origin, religion, and sexual harassment.

Stressed - Mike HoffLet’s say an employer pulls an employee from his or her workstation, announces their sexual orientation, and then fires that employee for being gay. An employee may be able to file a suit for infliction of emotional distress, but as the law stands, the firing is legal.

However, we’re beginning to see more cases that can cross over into sexual harassment complaints. Sexual harassment lawsuits can be filed regardless of the genders involved. The Supreme Court Case, Oncale v. Sundowner Offshore Services, said male-on-male sexual harassment is just as illegal as any other form of sexual harassment. In Oncale, the plaintiff was a male who said his male coworkers often harassed and abused him, which the Supreme Court decided was clearly sexual harassment. The case is often used as support for sexual orientation harassment cases.

Will Sexual Orientation Harassment Eventually Become Illegal?

Yes, I believe it will become illegal. While it may not be illegal currently, the social landscape is changing dramatically. We’ve already seen same-sex marriage bans ruled illegal in several states, including Kentucky. And there have been federal bills that have been drafted that make sexual orientation harassment illegal, although that doesn’t make it a law. However, I think we’ll see it become the eighth protected category in the workplace.

Is Sexual Orientation Harassment Still Worth Talking to a Lawyer About?

Absolutely. While someone who is being harassed at work may not be able to sue because of his or her orientation, if there are certain words spoken about or to that person, or certain actions that take place, he or she may be able to file for sexual harassment. If co-workers or supervisors have used certain language or taken certain actions, there’s a better chance of having some sort of legal recourse. If you’re not sure, it’s always better to call an attorney and find out for sure.

If you’re experiencing sexual harassment or sexual orientation harassment at work, and feel a legal response is your only option, please contact the Cassis Law Office at (502) 736-8100 to see what you can do.

Photo credit: Mike Hoff (Flickr, Creative Commons)

What Constitutes Workplace Harassment?

By | Discrimination, Sexual Harassment, Workplace Harassment | No Comments

The question of workplace harassment is a question I often hear. It’s also one of the most difficult to answer. It’s not a question of knowing or not knowing what it is. Rather, the meaning of the word is different from its legal definition.

Oftentimes, when I get a call about workplace harassment, the person will say that he or she is harassed on a daily basis at work, which is causing them extreme emotional distress. The caller can’t take it anymore. She wants to quit, but needs the job. She feels like she’s stuck, and doesn’t know where else to go.

Big OfficeI ask the caller to discuss the situation and tell me about their work situation. She — or sometimes he — will tell me about how the job is unbearable, her boss is insane, and a complete nightmare to work with! The boss screams and yells at my caller, calling her stupid, or otherwise insulting her. She is asked to work weekends and is contacted at all hours to take care of some situation or other.

Though this situation may be harassment, it is also — sadly — completely legal. An employer is allowed to yell and cuss at you. They can be rude and insensitive. It is only considered illegal harassment if the harassment is related to age, race, gender, disability, national origin, religion or sexual harassment. Basically, if they call you names or make inappropriate jokes about one of those issues, it’s illegal. If they’re just mean and insensitive, it’s not.

Years ago, when I was younger, I worked at a law firm where many lawyers would regularly yell and scream at the secretaries. The secretaries were constantly crying, and we had a lot of turnover within their ranks. Every week brought a new face because they would quit due to the poor treatment. Needless to say, I don’t work at that law firm anymore.

It comes down to this: having a jerk for a boss is not illegal. He or she can be rude, and it’s not against the law. But if their harassment becomes an issue of age, race, gender, disability, national origin, religion, or sexual harassment — the “Big 7″ — then it is illegal, and you have grounds for a workplace harassment lawsuit.

If you’re experiencing workplace harassment at your job, and feel a legal response is your only option, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: Phil Whitehouse (Flickr, Creative Commons)

How Do You Calculate Damages for Emotional Distress?

By | Employment Law | No Comments

Emotional distress is the stress and emotional hardship someone suffers in an employment law case. It’s similar to “pain and suffering,” which is commonly heard in personal injury lawsuits. Someone may experience emotional distress because of a hostile work environment or workplace harassment.

Montgomery County Kentucky Courthouse

Montgomery County Kentucky Courthouse

While the signs of ” target=”_blank” rel=”nofollow”>emotional distress aren’t usually visible, they’re very real, and it’s possible for a plaintiff to ask for compensation in an employment lawsuit. The state of Kentucky allows for lost wage recovery, emotional distress recovery, and attorney fees if you win. The emotional distress is calculated primarily based on the plaintiff’s testimony.

A jury will hear the testimony of the plaintiff, as well as anyone close to the plaintiff, such as family or friends. The jury will then decide how much to award.

Determining how much a plaintiff should receive is based on what they ask for. The plaintiff must itemize each damage claim, in the form of lost wages, as well as the emotional distress itself, and assign it a dollar value. This can include medication, therapy, psychologists or psychiatrists, and so on. The jury will then determine what, if anything, the plaintiff should receive. They can award anywhere from one dollar to the requested amount.

The judge has final say over how much is to be awarded. If the judge believes the jury’s decision is too high, he or she can lower it. The judge can also increase the award as long as it does not exceed the amount asked for. I once represented a client on a case where the jury awarded $1 million in emotional distress, but the judge struck it down because he believed there was not enough evidence to warrant the claim. As a result, the plaintiff received nothing.

There is no exact math to calculate how much a plaintiff should ask for. However, he or she should ask for something reasonable in order to be seen fairly and taken seriously. Asking for $1 million for being worried for a week will not win the jury to your side. However, a woman who was sexually harassed, fired, became depressed, and couldn’t work for a year could reasonably ask for $1 million. It depends on the case and the testimony. If you’re not sure, ask your employment law attorney.

If you have suffered emotional distress as a result of workplace harassment or an illegal firing, or have other questions about employment legal issues, please contact the Cassis Law Office at (502) 736-8100.

What Is Emotional Distress?

By | Employment Law | No Comments

One component of employment law cases is emotional distress. You usually hear it mentioned when a plaintiff sues a defendant for “loss of wages and emotional distress.”

You may have heard the term “pain and suffering,” especially in terms of personal injury lawsuits involving physical injury. Emotional distress is another way of saying “emotional pain and suffering,” and is based on the plaintiff’s testimony. They’ll testify to how the emotional distress of their situation affected him or her.

Stressed - Mike HoffHowever, emotional distress doesn’t always visibly manifest itself, not like a broken leg or bruises from a car accident. This is why a plaintiff’s testimony is so important.

There can be physical signs of emotional distress, including loss of sleep, weight gain, depression, weight loss, panic attacks, and anxiety attacks. The plaintiff may even have prescriptions for anti-anxiety medication, or undergo psychology counseling. However, these are not necessary to prove emotional distress. Medical proof or expert testimony from a doctor is not needed.

Emotional distress is hard to nail down because it is so amorphous and unseen. It’s based on the plaintiff’s testimony alone. Friends and family can testify, as well as the plaintiff’s spouse, all explaining how they witnessed the plaintiff’s emotional distress over time.

Emotional distress is not a substitute for punitive damages, and it’s not a way to get a jury to pad a monetary reward for the plaintiff. In Kentucky, lawsuits filed under the Kentucky Civil Rights Act cannot receive punitive damages (although you can for suits filed under the Federal Civil Rights Act). Emotional distress is only used to demonstrate how the plaintiff was negatively affected by the defendant’s behavior.

If you have suffered emotional distress as a result of workplace harassment or an illegal firing, please contact the Cassis Law Office at (502) 736-8100.

 

Photo credit: Mike Hoff (Flickr, Creative Commons)

Can I Sue If My Apartment Landlord or Maintenance Worker is Sexually Harassing Me?

By | Employment Law, Sexual Harassment | No Comments

While not strictly an employment law question, we have been asked whether a tenant can sue his or her landlord for sexual harassment.

Apartment ComplexThe law is very specific in regards to who can sue who for what, at least when it comes to workplace harassment. As we’ve discussed, contractors are not legally given the same kind of protection as regular employees. They are not allowed to sue an employer for sexual harassment, even if they’re harassed by an employee or a manager. The issue is because the contractor does not actually work for the employer.

Private citizens face these same issue as well, even when interacting with an employee at a workplace. For example, even if a car salesperson harasses a customer, the customer has no legal recourse.

And if an apartment landlord or maintenance person harasses a tenant, the tenant has no real recourse either.

That’s because a landlord-tenant relationship falls under the same issues as contractors and private citizens. While the tenant and landlord or apartment management company have a business relationship, they don’t have an employer/employee relationship. This holds true for all employees of the apartment building or complex, such as maintenance workers or groundskeepers.

However, if a tenant was late with his or her rent and the apartment manager offered free rent in exchange for sexual favors, that’s actually illegal. It’s considered solicitation or prostitution. It still wouldn’t be considered sexual harassment, but there are grounds for other legal pursuits.

Only certain relationships are covered under the Kentucky Civil Rights Act. And even then, there may be certain criteria that must be met. Contractor-Employer, Private Citizen-Employee, and Landlord-Tenant relationships are not protected under the Kentucky Civil Rights Act. If you experience harassment under any of those kinds of relationships, there’s nothing that can be done legally.

(That doesn’t stop you from telling your friends and family about it though.)

If you have experienced workplace harassment of any other kind, or believe you are being sexually harassed by a co-worker or boss, please contact the Cassis Law Office at (502) 736-8100.

 

Photo credit: Greg Goebel (Flickr, Creative Commons)

Can a Private Citizen Sue If They’re Sexually Harassed by Company Employees?

By | Sexual Harassment | No Comments

Sexual harassment of an employee by an employer or co-worker is illegal, and the subject of many employment lawsuits. But what if you are sexually harassed at a company you do not work for? Even if you’re a customer and you’re openly harassed by an employee of the company, you cannot file a sexual harassment lawsuit. You can, however, call the corporate office to make a complaint and refuse to do business with them again.

Catcalling by Construction WorkerThis private citizen issue is similar to the idea that contractors are not subject to the same protection as regular employees.

A common example is when a customer walks into a car dealership. The car salesperson may try to hit on and sexually harass the customer, and he or she can complain. However, there are no laws that protect the customer in that scenario. Unless the car salesperson actually touches the customer, there is nothing the customer can legally do.

Sexual harassment is strictly a workplace or employment issue. A private citizen could sexually harass another private citizen but there are no legal complaints that can be made. This is something that happens regularly at bars. One patron hits on another, and is rather bad at it, or unwilling to take the hint (or outright rejection), and continues to bother the other patron. It’s annoying, and possibly even frightening, but it’s not against the law.

If there was any kind of physical assault, battery charges could be brought against the person who committed the assault, but nothing else can be done.

Basically, if you are harassed by an employee of a company you do business with, your best bet is to tell friends about it, so they can avoid doing business with that company as well.

If you have questions about sexual harassment, or believe you are being sexually harassed by a co-worker or boss, please contact the Cassis Law Office at (502) 736-8100.

 

Photo credit: Michael (Flickr, Creative Commons)

My Employer Won’t Pay My Workers Comp Claim

By | Employment Law | No Comments

If your employer won’t pay your workers comp claim, consider hiring an attorney who specializes in these kinds of claims.

At Cassis Law, we typically don’t handle workers comp claims because we prefer to focus on employment law. But there are times when a workers comp claim should be referred to an employment lawyer. Here’s how this often works.

An employer is required by law to have workers compensation insurance that covers any employee in the event of a workplace accident or injury.

Broken leg in castOftentimes, small companies don’t carry workers compensation insurance because of the cost. If an employee gets hurt, the employer has no way of covering it. The employee can call the state workers compensation commission, which will conduct an investigation. However, the commission can only punish the employer; the employee still has to figure out how to pay for medical treatment.

Another, more common scenario is when an employee gets hurt on the job, but the employer doesn’t want to report the incident to his workers comp insurance company. the employer may try to sidestep the situation by telling the employee to just go to the doctor and put it on his or her own health insurance. This could be illegal in some situations.

The correct procedure is to turn the employee’s claim in to the workers comp insurance company. The company will handle the claim, so the employer can’t really deny or stop it in the first place. The insurance company will then decide if they are going to pay or not, while the employer is just a witness. However, the employer can give some insight into the situation. For example, an employee could claim he got injured at work when he really got hurt at home. If the employer has knowledge of this, they can tell the insurance company. Ultimately it is up to the insurance company to make the final decision.

Employers often do not like filing workers comp claims, because they drive up insurance premiums and rates. It could also affect scheduling, because the employee needs time off to go to the doctor, or ask for light duty work, which can decrease productivity. These all add costs and extra work to the employer, which can be an administrative nightmare. The employer may get upset with the hurt employee and fire them in retaliation.

When that happens, an employment lawyer would get involved under the workers compensation retaliation statute, KRS 342.197. This states that it is illegal for an employer to fire an employee because that employee filed a workers comp claim. Since it’s illegal for an employer to retaliate against an employee for things like whistle blowing, reporting discrimination or sexual harassment, or making a workers comp claim, this becomes an employment law case.

Any time an employer retaliates against an employee, such as firing them for making a workers comp claim, that employee can file suit against their former employer. If this has happened to you, please contact the Cassis Law Office at (502) 736-8100.

 

Photo credit: Ted Eytan (Flickr, Creative Commons)