The Legal Insider

September 2013

The 5 Most Important Workplace Rights for Employees

Holding a good job is one of the most fundamental aspects of the American Dream. Americans value hard work; they also value the fair treatment of employees. As a result, our legal system strongly enforces basic workplace rights.

Workplace rights can apply to job applicants, current employees, and former employees. The five most important workplace rights include:

  1. The right to be free from discrimination: Employees have the right to be free from many forms of discrimination. Federal laws ban employment discrimination based on race, color, national origin, sex, disability, pregnancy, and age. However, under these federal laws, employers with less than 15 employees (or, in the case of age discrimination, 20 employees) are exempt. The laws apply to all aspects of employment, including hiring, firing, and benefits. Some states also ban employment discrimination based on sexual orientation or gender identification.
  2. The right to be free from sexual harassment: Sexual harassment in the workplace is illegal under Title VII of the Civil Rights Act of 1964. However, Title VII applies only to employers with 15 or more employees. Examples of sexual harassment include unwanted pressure for sexual favors, touching, hugging, sexual teasing and jokes, spreading rumors about someone’s sex life, and sexual assault.
  3. The right to fair wages and hours: Under the Fair Labor Standards Act (FLSA), “nonexempt” employees are entitled to a minimum wage of $7.25 per hour. Additionally, “nonexempt” employees are entitled to one-and-a-half times their regular pay for any hours worked over 40 per workweek. The FLSA does not apply to “exempt” employees, which include commissioned sales employees, some computer professionals, farm workers, drivers, mechanics, auto sales professionals, and seasonal and recreational employees.
  4. The right to workers’ compensation: When an employee is injured on the job, his or her employer’s insurance company must pay for all reasonable and necessary medical care. In the event of a workplace injury, employees must promptly notify their employer of the injury.
  5. The right to a safe and healthy workplace: Employees have the right to a workplace free of known health and safety hazards. The Occupational Safety and Health Administration (OSHA) is responsible for setting and enforcing safety standards and providing training, education, and outreach. If an employee knows of a hazardous work condition, he or she should file a complaint with OSHA.

Office Romance: The Love Contract

Office romances are considered detrimental to business operations. In addition to causing volatility in the workplace environment, office romances can lead to potential liability for employers. In order to avoid possible legal problems from office affairs, employers often require employees to sign a “love contract.”

What is a Love Contract?

A love contract is a legal agreement entered into by the employees of the same company who are romantically involved with each other. When office romantic relationships break up, sexual harassment litigation is likely to follow. In such case, an employer is very likely to find itself thrown into potentially costly litigation. Thus, the main goal of the love contract is to shield the employer from potential liability.

Usually, and ideally, a love contract is a part of more general workplace guidelines covering situations of romantic involvement at work. Such guidelines are routinely outlined in employee handbooks. Love contracts generally include:

  • The signatures of both romantically involved employees and a statement of consent.
  • Stipulation against sexual harassment lawsuit against the company.
  • An agreement to proceed to arbitration rather than the courtroom if the relationship ceases in a non-amicable manner.
  • A specific provision indemnifying the company (i.e., the employer) if the employees' romantic relationship ceases.
  • A love contract may also include rules on how romantically involved employees must behave at work.

What Else Can an Employer Do To Ensure Protection?

In addition to the love-contract, employers can consider implementing the following safeguards:

  • Timely human resources consultations
  • Sexual harassment training at work
  • Robust sexual harassment policies for the workplace

Employer should also consider consulting a qualified employment attorney if issues arise regarding office relationships. An attorney can provide valuable insights for drafting and enforcing a love contract or other protective procedures.


How to Protect Your Business from ADA Lawsuits

“Serial ADA lawsuits” have become increasingly prevalent in recent years. A serial ADA lawsuit occurs when a plaintiff seeks to obtain money by suing a business for noncompliance with the American Disabilities Act (ADA). These lawsuits are aimed at small businesses that may not have the resources to satisfy every requirement of the ADA. Common issues raised in ADA lawsuits include: a failure to have a working wheelchair ramp; bathrooms that are not handicap-accessible; and a lack of parking spaces designated for persons with handicaps.

Individuals who bring serial ADA lawsuits are known as “serial plaintiffs.” These individuals often patrol a given radius in a community, noting the businesses that might violated ADA standards. Serial plaintiffs may not even enter a targeted establishment—they might simply drive by taking notes of any potential lawsuit material.

Although the American Disabilities Act has brought about many positive changes, frivolous lawsuits brought under the ADA are an abuse of the legal system and are detrimental to business owners and local communities. Here are a few tips to help protect your business from a serial ADA lawsuit:

  1. Hire a “Certified Access Specialist (CAS)”: A CAS is person designated to examine businesses to determine whether or not they are in compliance with ADA standards. While this process may involve some expenses, it can help prevent a lawsuit and save you in the long run.
  2. Pay extra attention to the outside premises of your business building: Many ADA plaintiffs simply examine the outside of the business for defects and will usually seek other locations if the front seems to be in conformity. However, the entire business premises needs to conform to the rules.
  3. Proof: In order to recover damages, a plaintiff needs to prove that they were actually injured or suffered losses due to a violation. If they can’t prove that they were injured, you might not have to pay damages.
  4. Invest in making the corrections now: If your business is not conforming to ADA standards, you should make the adjustments or installations now. It will generally be much cheaper to act now than to suffer the expenses of a lawsuit.

Lastly, you may wish to research the disability laws in your particular state. In response to the outbreak of ADA lawsuits, many states have made it more difficult for serial plaintiffs to collect damages. For instance, some states have enacted laws that require the plaintiff to shoulder the defendant’s litigation fees if they are unsuccessful in court. Also, some areas have lowered the amount that plaintiffs can claim, making it less likely that plaintiffs will file for exorbitant damages.

ADA requirements are intended to allow more persons to access your business. By conforming to ADA laws, you will be benefiting your business and shielding yourself from potential legal issues.


Top 5 Mistakes Landlords Make During the Eviction Process

One of the best ways to make money in the real estate industry is to acquire residential property and rent out the space—in other words, to become a landlord. Unfortunately, tenants can often become more hassle than they are worth. Some tenants will not be able to pay rent on time. Others will break the rules you establish and cause serious damage to your property.

Evicting troublesome tenants can be a simple process. However, there are many legal mistakes that landlords can unwittingly make during the eviction process—mistakes that can delay or even halt an eviction. If you are a landlord seeking to evict tenants, you should not:

Use Self-Help Evictions

Self-help evictions are evictions where the landlord tries to force the tenant out without going to court. Turning off the heater, changing the locks, or shutting off the water are all common ways of forcing a tenant to leave. They are also illegal.

A landlord who engages in self-help eviction practices will not only waste valuable time, but may also end up paying the tenant for the harm inflicted. Self-help evictions are a breach of the warranty of habitability and a breach of the warranty of quiet enjoyment. A landlord who breaks these legal doctrines could pay much more for an eviction than he or she anticipated.

Fail to Notify the Tenant of Eviction

Most states have a process for eviction. This process typically requires the landlord to give the tenant notice of the landlord’s desire to evict the tenant. Some states also require the landlord to give the tenant time to try to correct the problem. The exact length of time will differ depending on the state, the tenant, and the problem.

For instance, in San Francisco, landlords are required to give the tenants three days to pay rent if the tenant is behind on payment. Failure to give the proper notices will give the tenants more time to stay on the property.

Accept Rent After Notice of Eviction

This one might not make sense at first. The point of being a landlord is to make money, so why shouldn’t you accept rent? The answer is that a tenant’s rent is payment for the right to use the property. If the landlord accepts rent, the landlord is also accepting the tenant’s right to stay on the property, even if the tenant is suppose to have moved out already. Accepting rent from that obnoxious tenant will make that tenant’s stay longer than you might like.

Discriminate or Retaliate

Most laws regarding tenancy are state laws. Discrimination laws are the exception. The Fair Housing Act, which regulates discrimination in real estate, prohibits discrimination based on race, national origin, religion, sex, family/marital status, or disability. Indeed, one of the strongest defenses a disabled tenant has to an eviction is to ask for the right to stay as a reasonable accommodation. If discrimination is raised, the landlord must be able to show that discrimination is not the reason for eviction.

The same is true for retaliation. A landlord cannot evict a tenant if the tenant demands repairs, calls government inspectors, or even sues the landlord. If a court believes eviction is discriminatory, or retaliatory, the eviction will come to an end. Although the tenant has the burden of proof, the landlord is required to refute the tenant’s allegations.

Fail To Cover Legal Obligations To Tenants

Landlords have legal duties to their tenants. For instance, it is the landlord’s responsibility to keep the property usable. Failure to meet this obligation, or any other obligation, will make an eviction more difficult.

Tenancy is often the opposite of employment. Employers can terminate their employees at-will, as long as the reason is not illegal. In most states, landlords cannot evict tenants without just cause. It is the landlord’s duty to prove just cause before a tenant can be evicted.


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